Amendments Nos. 1, 2 and 31 are drafting amendments and may be discussed together by agreement.
Criminal Justice (Mutual Assistance) Bill 2005: Committee Stage.
I apologise for delaying the House. These are minor technical amendments. Amendments Nos. 1 and 31 correct simple typographical errors in sections 2 and 48. The reference in section 2(3)(c) to section 68(1)(c) should have been to section 67(1)(b) and the reference at section 48(4)(c) regarding the nominated judge informing the witness of his or her right should be to section 49.
Amendment No. 2 seeks to correct the wording of section 3 in order that the meaning is fully clear. The revised text will provide that the assistance shall be refused if the Minister considers that providing assistance would prejudice the sovereignty, security or other essential interests of the State or would be contrary to public policy. The original wording was open to misinterpretation.
The amendments are self-explanatory. They are technical amendments and we agree with them.
I move amendment No. 3:
In page 16, subsection (1)(b)(II), lines 8 and 9, after “torture” to insert “or to inhuman or degrading treatment or punishment”.
The definition of "torture" in Irish law is fairly narrow and the Minister is proposing to narrow it even further in the Criminal Justice (Mutual Assistance) Bill. His proposed amendment to the definition is not appropriate and I ask him to reconsider it. The purpose of this amendment is to broaden the definition of "torture" in the legislation.
The intention of Senator Tuffy's amendment is to add to the grounds on which mutual legal assistance would be refused. The amendment proposes that mutual legal assistance would be refused if there were reasonable grounds for believing that such assistance might result in the person being subjected to inhuman or degrading treatment or punishment, in addition to him or her being subjected to torture.
The amendment is unnecessary given that section 3(2) defines torture as used in this section by reference to the meaning given it by the 2002 Act. The Criminal Justice Act 2000 gives effect to the convention against torture and other cruel, inhumane and degrading treatment or punishment. Article 1.2 of the convention defines torture.
In addition, the Bill refers at section 3(1)(ii)(III) to assistance not being provided if it would otherwise contravene the European Convention on Human Rights and provides for assistance to be refused if providing it would contravene that convention. The European Convention on Human Rights provides at Article 3 that nobody should be subjected to torture or to inhumane or degrading treatment or punishment. The matter is already covered, therefore, by the terms of the European Convention on Human Rights.
What is the Minister's response to my point that his definition is too narrow?
The Senator is referring to anticipated amendments in the Criminal Justice Bill which is before the other House and in that context I do not want to anticipate the debate in that House. I concede, however, that the issues that will arise in that debate have a bearing on this issue but we should jump that stream when we come to it.
Is the amendment being pressed?
I will withdraw it on the basis of the Minister's reply.
Amendment No. 4 is a Government amendment. Amendments Nos. 4, 5, 7 to 11, inclusive, and 14 are related and may be discussed together by agreement. Is that agreed? Agreed. There is a printing error in amendment No. 7; a comma is missing.
It makes eminent sense that we get the views of the Irish Bankers Federation on items such as this one. There is little use having legislation in theory that will not operate in practice. I agree with the amendments as proposed by the Government.
I move amendment No. 6:
In page 19, subsection (1)(e), line 33, after “request” to insert
(f) an account held by another person in any other circumstances on behalf of, or representing in whole or in part the property of, the first-mentioned person;”.
We wish to make it clear that accounts are covered whether they are held by a person or someone else on his or her behalf. The existing wording would not cover all such circumstances.
I am very grateful to Senator Tuffy for moving this amendment and to her colleagues for tabling it. The proposed amendment would broaden the definition of the term "account" where it is used in the legislation and on the face of it there are aspects of it which appear to merit inclusion in the Bill. I ask Senator Tuffy to give me more time to examine the wording she has proposed, in conjunction with Parliamentary Counsel, and the opportunity to consult with the Garda and the banks on its implications from a practical and operational point of view. If there are no problems with the amendment as tabled or if problems arise and they can be sorted out, I will deal with the issue positively on Report Stage.
I will withdraw the amendment on that basis.
Amendments Nos. 12, 16 and 27 are cognate and may be discussed together. Is that agreed? Agreed.
I move amendment No. 12:
In page 22, between lines 13 and 14, to insert the following new subsection:
"(2) An application under this section shall be heard otherwise than in public.".
This amendment provides that these applications, given their nature, should be heard in private. What is the Minister's response?
Again, I am grateful to Senator Tuffy for tabling these amendments. They are to permit the applications in respect of these orders to be heard otherwise than in public. There is precedent for this in other areas. Perhaps the Senator will let me do the same as I proposed earlier, that is, consult with the Parliamentary Counsel on the matter. If the Parliamentary Counsel is satisfied with the wording of the proposed amendments, I will accept them on Report Stage if they are tabled or I will table them.
Amendments Nos. 13 and 18 are cognate and amendment No. 26 is related. Is it agreed that amendments Nos. 13, 18 and 26 be discussed together? Agreed.
I move amendment No. 13:
In page 22, subsection (5), line 40, to delete paragraph (a).
The reason we seek the deletion of this paragraph is that we believe it has an illogical effect.
Amendments Nos. 13 and 18 would have the effect of deleting the provision that an account information or account monitoring order made with regard to criminal investigations in the State or in a member state of the European Union would have effect as if they were orders of the District Court. The effect of the acceptance of amendment No. 26 would be to delete the reference to an order made for the freezing of evidence to have effect as if it were an order of the High Court. I am consulting the Attorney General on this issue but it appears unlikely that I will be able to accept the proposed amendments. A judge making orders of the nature referred to will need the backing of the court to deal with issues relating to contempt of court and so forth. If, following consideration by the Attorney General, the amendments are necessary, whether along the lines of the Senator's amendments or with other changes, I will table them on Report Stage.
I move amendment No. 15:
In page 23, subsection (6), line 2, after "in" to insert "the State, or, in the case of a financial institution in the State, is not in".
We believe the section as drafted is defective in that it presupposes that an institution to which an order relates will be in the State, which is not necessarily the case.
The amendment seeks to permit account information or account monitoring orders to be made relating to financial institutions in the European Union outside Ireland and to financial institutions in Ireland which are not in the district of the District Court to which the judge is assigned. Under section 12(2), applications for account information and account monitoring orders may relate to financial institutions in the State or in an EU member state. It follows that orders made on foot of such applications will relate to such institutions. The amendment, therefore, is unnecessary given the provision in section 12(2). The advice given to me is technically correct. Otherwise, we would give district court judges a type of universal jurisdiction, which is not what is contemplated.
I move amendment No. 17:
In page 25, subsection (3)(a), line 27, to delete "an" and substitute "there are reasonable grounds for believing that an".
It would be difficult for an Irish District Court judge to be satisfied that an offence abroad has been committed. The use of "reasonable grounds" would be a more realistic test.
I am grateful to the Senator for tabling this amendment. I fully agree with her and the wording in the amendment is correct. I accept the amendment.
I move amendment No. 19:
In page 30, lines 24 to 29, to delete paragraph (4).
We believe the provision as it stands is of dubious constitutionality. It allows the Minister to change the law by the executive act of making a declaration. The Minister should provide for a more constitutional way of achieving his objective.
I will seek further advice from the Attorney General on that point. The purpose of the provision is to give effect to Articles 18.6 and 18.7 of the convention of 2000 and the provision is included to give Ireland the option of making a notification to the European Union at the time of ratification that we are unable to provide for immediate interception and transmission of telecommunications to EU member states. In that event, Ireland would be obliged to intercept, record and transmit a recording of the telecommunications to the requesting member state if we would make an interception in a similar domestic context. This will be done when the information provided in Articles 18.3 and 18.4 of the convention is provided by the requesting state.
The information relates to issues such as from whom the request is received, the conduct being investigated, the desired duration of the interception and so forth. The possibility of making the declaration is provided for in Article 18.7. That is a safeguard and it enables Ireland to review the capacity of the telecommunications systems we have in operation prior to ratification.
The Senator is making a different point, which is that by making provision for that option in paragraph (4), we are in some sense allowing the law to be changed by the executive arm of the State in an unconstitutional way. I do not wish to respond to that issue off the top of my head. I will consider the matter between now and Report Stage.
Amendments Nos. 20 to 24, inclusive, are related and will be discussed together by agreement.
I move amendment No. 20:
In page 32, between lines 21 and 22, to insert the following new subsection:
"(10) All documentation comprising the notification to member states of interception shall be treated as official documents relating to an authorisation, or the application therefor, for the purposes of the Act of 1993, and the provisions of section 8 of the Act of 1993 shall apply.".
One of the main areas of concern highlighted on Second Stage, and by the media, is the interception of communications of Irish citizens living in Ireland by governments of other EU countries. This is covered in Part 3 of the Bill. It allows the Government to request interception in other member states, and other member states to request interception here. This law was previously contained in the Interception of Postal Packets and Telecommunications Messages (Regulations) Act 1993. Section 2 of the Act allows the Minister to authorise an interception provided the criteria set out in section 3 of the Act are satisfied.
An important safeguard is included in the Act in that section 8 allows a designated judge of the High Court to investigate authorisations and to inspect any official documents relating to an authorisation or the application thereof. The judge is to report to the Taoiseach at intervals of not more than 12 months in regard to the general operation of the Act and matters he considered should be reported. This report is to be laid before the Houses of the Oireachtas, together with a statement on whether any matter has been excluded therefrom on the grounds that it would be prejudicial to the detection of crime or the security of the State. I have not been able to find a record of any of these reports being laid before the Houses of the Oireachtas. Nevertheless, it is important to have some form of judicial scrutiny, particularly as the judge can tell the Minister that the authorisation should be cancelled and not extended.
The Bill appears to envisage that the authorisations of requests for interceptions under sections 22 to 24 are authorisations pursuant to section 2 of the Interception of Postal Packets and Telecommunications Message (Regulation) Act 1993. These requests require technical assistance from other member states and from this State. Section 24(8) allows the provision of the 1993 Act to apply to these provisions.
However, there is a second tier of requests whereby if this State does not require technical assistance from another member state, or it does not need technical assistance from this State, it is less clear from the Bill whether this tier will be subject to a report by a designated judge. If a Minister makes an authorisation of an interception under section 2 of the 1993 Act, and then notifies a member state pursuant to section 25 of this Bill, it is important that the documentation sent to the member state after the making of the authorisation is also available for review by the designated judge. Furthermore, a member state can notify the Minister of an interception pursuant to section 26(3) of the Bill if an authorisation would be given under section 2 of the 1993 Act in similar circumstances and in such circumstances the Minister shall allow the interception to be carried out or continued.
Allowing for the interception to be carried out or continued should be treated in the same manner as an authorisation pursuant to section 2 of the 1993 Act and, therefore, may be investigated by a designated judge. As this is not clear from the section, it should be clarified with an amendment. The Minister may require that an interception not be carried out or terminated and give the reasons for so requiring in writing. Again, it should be ensured that the documentation is available for review by the designated judge.
My amendments seek to clarify the situation and bring the Bill into line with the provisions of the Acts. They provide an extra layer of scrutiny and protection to people who may be subject to phone tapping or the interception of telecommunications. We do not have a great history in this regard about which we have spoken on different occasions in the past. It is of paramount importance to deal with this matter in a fully correct manner.
I have similar concerns to Senator Cummins. While my amendments are slightly different, they propose to address the same issues. On Second Stage, I raised my concerns about these sections which I propose to amend.
On amendment No. 22, I believe the section is flawed in that it does not limit the purposes for which the information can be used pending the Minister's decision. As I pointed out previously, another country can decide to access material pending consent from our Minister. The section allows that country to use material in the meantime, even though the Minister might subsequently not give his consent to the request. While I am restricted in what I can do in terms of the legislation, I am trying to at least make the section as restrictive as the convention, which the section is supposed to be implementing. This is the reason for the wording in amendment No. 22.
Amendment No. 24 relates to my concerns about the obligations of companies under section 27. I raised my concerns on Second Stage about a company not getting co-operation from the corresponding company in the other country, which would mean they could not live up to their obligations under the section. I am trying to provide them with a small and restricted defence if they were in difficulty and needed to defend themselves in legal proceedings.
Under the convention, we are limited in what we can do in terms of amending the legislation. However, the Minister should examine issues relating to people's rights, particularly in regard to another country coming here, getting material, accessing data and so on. Ireland has the Data Protection Act which provides accountability and some protection for people. We need to consider introducing measures that would provide this type of protection on an intercountry basis. Does the Minister have any plans in this regard?
On the last point, section 85(3) applies the Data Protection Act to this material, therefore, the issue is covered.
What the Senators are asking me to do from two different perspectives is to establish a set of safeguards in Irish domestic law, which we apply to Irish domestic circumstances and which are intended to ensure there is scrutiny and oversight of how this is operated. I am generally sympathetic to the notion that there should be oversight and protections and I intend to examine the issues raised by the Senators before Report Stage. However, in general in the European Union, we have gone down the road of mutual recognition of judicial and court orders and a fundamental strategic decision has been made in this regard. Ireland is very hot on this choice. We have decided not to go down the road of ensuring every member state's law should be the same but all states should recognise each other's legal system as valid and attempt to give effect thereto. That fundamental choice was made a number of years ago on judicial co-operation in Europe and it is based on the pillar of mutual recognition and not on the basis of approximating our laws to have the same laws throughout Europe
If, for example, an Irish judge were to perform in regard to a foreign request for an intercept the same function I carry out in a domestic context, he or she would exercise juridical supervisory control over decisions made by foreign courts or foreign prosecuting magistrates. A number of issues would, therefore, arise. First, is it consistent with the convention for Ireland to establish that additional hurdle for others? I would have to consider that point of European law. Second, how could an Irish judge, apart from seeing that the documentation appeared to be in order, work out whether the basic justification was present? Will he summon officials from France, Luxembourg, Germany or the Czech Republic or wherever to ask them to stand up the application for an intercept and outline in retrospect whether it is correct? This raises an issue of practicality. Would the judge attempt to apply Irish domestic protections to an application that might be based on a different legal system? How practical is it for Ireland to provide its own safeguards, which permit it to erect additional obstacles to mutual legal assistance based on its constitutional jurisprudence, legal system and concept of what is right and wrong? This is not a novel issue, as it also arose in the context of the European arrest warrant.
One must reflect on a number of issues. Before we get to the policy issue, are we entitled to do this or is it desirable? Would it be open to Ireland under the convention to put these safeguards in place? The judicial oversight involved in the interception of telephone calls and postal packages is exercised in retrospect in almost all cases. If, for example, procedures are followed and a designated official in the Department brings to the Minister a request from the Garda Commissioner for the interception of a particular telephone line and I sign the warrant, having examined the file, it is not returned to the judge that day for him or her to countersign it or whatever. He or she is required on an annual basis at the very least to scrutinise what I have been up to in retrospect. The issue is what effect that scrutiny would have if I could not stand up the merits of the transaction.
A number of the Minister's predecessors could not stand over their transactions and that is what we are trying to protect against.
I accept that.
That was then.
That was then and I am not sure whether the late Jim Mitchell or Deputy Noonan introduced the current regime relating to the interception of telecommunications. However, it works well and there is no possibility of a Minister doing this off his or her own bat. A triple lock is in place because a security agency is required to make an independent request, which must then be considered by a designated official in the Department and a decision made to bring it to the Minister. There is no way the Minister can initiate the interception and get people to come to him with the paperwork ready for ministerial enterprises in interception.
I would like to consider this further between now and Report Stage, on the basis of the line of attack taken by the Senators' amendments, whether something can be done to make sure somebody in Ireland can ask if domestic interceptions will be circumvented by getting somebody outside the country to do something that would not happen in the country. If one could get around the legislation by asking a foreign person to make an application for which there was no oversight at the time or in retrospect, there could be a danger. I will examine what can be done having regard to our obligations under the convention and I do not wish to sound negative or positive on this. I recognise there are issues and the amendments have been tabled for good reason. However, I do not want to be in breach of our obligation and I do not wish to do something worthless because asking an Irish judge to work out whether an Austrian prosecutor was justified could be a wholly fruitless activity.
I welcome the Minister's comments and I appreciate the difficulties involved. We do not wish to obstruct mutual assistance in any way but safeguards should be incorporated, if possible, within the legislation. I look forward to the Minister's proposal in this regard on Report Stage, although I do not know whether that will be possible. Hopefully, something can be done to address the amendments.
I also thank the Minister for agreeing to examine the issues raised before Report Stage. He is protective of our legal system in other fora and my concern is that powers will be provided to other states that may apply a different set of standards than Ireland in dealing with legal issues. This legislation could give them scope to do that.
I am all in favour of co-operation with other countries, particularly member states of the EU but Ireland is one of the few countries with a constitution. We have a particular regime of rights and so on while other countries have acted wrongly in the past legally and otherwise. Perhaps, in addition to the Minister examining the issue in the context of the legislation, as a Parliament, we need to examine the way we are headed with such legislation and adopt a clear-cut position on issues such as data protection and collection and the use of such data. This would inform us when participating in future conventions, therefore, I urge the Minister to take this on board.
I will look at it again and do my best to accommodate some safeguard to deal with the genuine point raised by Senators Cummins and Tuffy.
I move amendment No. 25:
In page 35, between lines 4 and 5, to insert the following new paragraph:
"(a) an order under section 2 or 3 of the Proceeds of Crime Act 1996,”.
We put down this amendment because it is not clear why a proceeds of crime order is not included in the definition of a freezing order. This amendment corrects that.
When I saw this amendment I had sympathy with the view expressed as the same question occurred to me. My Department considered this originally when the Bill was being drafted. The strong advice from the Attorney General and the Garda Síochána was to the effect that they did not want the proceeds of crime orders to be put into a criminal context. The reason for this is that the philosophical underpinnings for our CAB procedures operate very much on the basis that a criminal conviction or process is not part and parcel of the confiscation of the proceeds of crime in Ireland.
There are confiscation orders in many European countries which follow from criminal convictions. However, what is unique about the Irish model is that the Supreme Court has held that a conviction is not a necessary precondition for these kind of orders or proof of criminal activity to a criminal standard of proof is unnecessary because, in effect, somebody in the possession of the proceeds of crime is a person who does not have lawful possession of them or have property rights to them. Therefore, to deprive them of control of those assets is not to punish them in any way. This philosophical distinction is crucial to the constitutional integrity of what the Criminal Assets Bureau does.
The Department had the same thought on the issue as did Senator Tuffy and her colleagues, but we were warned away from it by the Attorney General and the Garda, who did not want the two concepts mixed together.
I move amendment No. 28:
In page 38, subsection (5), line 40, after "1994" to insert "with any necessary modifications".
We believe part of the section, as it stands, is inappropriate. In that regard I refer to section 42(5)(b) which includes the words “with any necessary modifications”. As it is included in this section, we believe it is also appropriate to include it in section 33(5) after “1994”.
I agree this proposal is of value. Section 24 of the Criminal Justice Act 1997 deals with the making of restraint orders. A number of the sections of that Act, as listed in section 84(a) of the Bill also deal with restraint orders. Section 84(a) deals with the relevant provisions in the 1994 Act by changing the name to “freezing order”. The section to which the Senator refers deals with the making of freezing co-operation orders and the provisions allowing for such orders to have effect as though they were freezing orders made under the provisions of the 1994 Act. The amendment proposed is in line with similar textual provisions with regard to confiscation orders in sections 42(5) and 42(6) of the Bill. In the interest of clarity and consistency, I agree the amendment should be made and I propose to accept it.
I move amendment No. 29:
In page 45, subsection (6), line 10, to delete "other than money".
The powers in section 42(6) could relate to money. Therefore, we believe there is no reason to provide that they do not apply to money. What is the reasoning behind providing for the confiscation of property "other than money"?
Section 42 differentiates between property that is money and property that is not money. Subsection (5) deals specifically with the confiscation co-operation order relating to a sum of money. It provides that such an order will act as a confiscation order requiring the person to pay the relevant sum of money. Subsection (6) is designed to cater for a confiscation co-operation order, with the confiscation to take effect with regard to property that is specifically not money. In the main, the section is a re-enactment of the provisions in section 20 of the Criminal Justice Act 1994 dealing with the realisation of property.
If we were to delete the phrase "other than money", it would not make sense. Money is, after all, a property in its own right and has been dealt with in subsection (5). The specific purpose of this section is to deal with property which is not money. The inclusion of the phrase "other than money" is, therefore, necessary to the provision here. The amendment would cause a slightly unsatisfactory relationship between subsections (5) and (6) if I were to accept it.
Amendment No. 30 is related to amendment No. 32 and amendment No. 33 is cognate, therefore, amendments Nos. 30, 32 and 33 may be discussed together by agreement.
I move amendment No. 30:
In page 49, subsection (8), line 28, after "admissible" to insert ", provided that no statement insofar as it consists of or includes a statement controverted by the defendant in proceedings shall be admissible under this section unless the defendant was afforded the opportunity to exercise the rights referred to in subsection (10)(a)”.
This section purports to make all statements admissible and the court can simply take into account whether cross-examination was allowed. This is constitutionally illiterate, as the right to cross-examine is a constitutional one and, as the Minister is aware, was found to be so in the Haughey case. A controversial statement must be inadmissible unless there is a right to cross-examine.
Amendment No. 32 is a similar amendment. It rectifies a legal error in section 59. Whether the section applies is a legal matter for the court to decide and not a factual matter which depends on the existence of reasonable grounds for belief.
Amendment No. 33 was tabled because the section does not specifically afford the defendant reasonable time, following service, to arrange for travel to the other state.
I think the Senator is trying to provoke me by using the phrase "constitutionally illiterate". I do not accept that the thought process behind subsection (8) falls into that category. Subsection (8) provides that a statement of evidence by a witness taken in accordance with the letter of request and certified by, or on behalf of, a court or tribunal, is admissible as evidence of any facts stated therein, if such oral evidence would be admissible. All evidence is admissible and cross-examination may take place following the evidence. That is a different matter. The admissibility of the evidence is a matter for determination by law.
Section 47(10) provides as follows:
A court, when considering whether any evidence taken from a person pursuant to a letter of request should be excluded in the exercise of its discretion to exclude evidence otherwise admissible, shall, where appropriate, have regard to—
(a) whether the law of the state concerned allowed the person and any other party concerned, when the evidence was beingtaken, to be legally represented and cross-examined . . .
There is the first safeguard. The court can have regard to whether such a right was afforded to a person in the first place. The subsection continues that the court shall have regard to:
(b) any other respects in which the taking of the evidence may have differed from the taking of comparable evidence in the State.
From that point of view, there is a clear preservation of the Irish courts' right to uphold a person's right not to have uncontroverted evidence used against his or her wishes in circumstances in which it would be unconstitutional to do so. Therefore, in defence of my officials and the Parliamentary Counsel, I enthusiastically repudiate the charge of constitutional illiteracy.
Is amendment No. 30 being pressed?
I have a question for the Minister. I can see what he is saying about subsection (10) but the section refers to "without further proof". The court can consider the evidence but the section does not allow for there being further proof. Can the Minister address that issue?
This has been carefully examined. The phrase "without further proof" does not mean that it is unassailable. It simply means that there is no requirement to prove further the origins or authenticity of the evidence, apart from what is provided for in the section.
With regard to amendments Nos. 32 and 33, it is correct that a judge should be satisfied that the section applies to a request from another state for evidence rather than that it should appear to the judge that the request relates to this section. However, a judge cannot be satisfied before issuing a warrant for evidence that a warrant is necessary for entry or that the occupier has not consented or is unlikely to consent to entry. That is not the way things happen.
If a sergeant goes to the District Court and asserts his belief that there is stolen property in Mr. Michael McDowell's house, the judge does not ask if he or she is absolutely sure that Mr. McDowell would not simply open the door and let the sergeant enter the premises and take the property, without a warrant. That is not the way warrant procedures work. It is a power given to courts.
It may well be that I would politely open the door and show the sergeant the stolen property in my house and ask him or her to take it away, but the procedure is that where one secures a warrant, one does not have to satisfy a court that the person in respect of whom it will be executed is not likely to co-operate on a voluntary basis. That is not the basis on which warrant business is done.
I move amendment No. 34:
In page 71, between lines 6 and 7, to insert the following new subsection:
"(13) Where a document served pursuant to this section directs or requests the person to whom it is addressed to attend a hearing in a designated state, the document shall be served a reasonable time prior to the hearing in the designated state concerned and in any event at least 14 days prior to the hearing.".
I spoke on this matter earlier. The purpose of this amendment is to allow the defendant a reasonable time, following service, to arrange for travel to another state.
This amendment requires other member states to serve documents in this country requiring persons to attend hearings in other member states within a reasonable time and not later than 14 days prior to the hearing. While I am sympathetic to the notion that people are given a decent amount of notice, I do not think it would be prudent or correct of us to impose rigid timescales on other member states.
The onus is on other member states to serve documents in good time if they require a person to attend there but some flexibility is also important. For example, if a person from this jurisdiction is required, under this regime, to attend a court case urgently in Newry and that person is in County Louth, is it reasonable to assert that he or she cannot be required to do so, that is, to travel 20 miles, unless given 14 days notice, particularly if one considers that a person would be liable to be brought to Drogheda District Court from Northern Ireland at a moment's notice? We need some flexibility in this regard, but I take the point that good notice should be given. The 14-day provision is unnecessarily inflexible. It is slightly over the top if an individual in County Donegal is required to go to Derry under this provision but cannot because two weeks notice was not given to him or her.
I move amendment No. 35:
In page 79, lines 31 to 34, to delete subsection (4).
The Labour Party believes subsection (4) is meaningless. The subsection is designed to discourage judges from operating the section and we suggest it is deleted. What is the purpose of section 83 if subsection (4) is left in it?
I admit it is an odd-looking provision at first sight. The Parliamentary Counsel, however, regards it as important because it permits the courts to refuse to grant measures where they do not have jurisdiction, apart from this section, and where they think it would be inexpedient having regard to that matter to make the order in question. The provision has featured previously in other legislation dealing with orders. The same wording can be found in the civil proceedings context in section 13(2) of the Jurisdiction of Courts and Enforcement of Judgments Act 1998.
The provision must be read carefully. Although it may not be an elegantly phrased piece of draftsmanship, it follows precedent. Subsection (4) states:
The Court may refuse to grant the measures sought if, in its opinion, the fact that it has not jurisdiction, apart from this section, in relation to the subject matter of the proceedings concerned makes it inexpedient for it to grant such measures.
It could be phrased more eloquently. I will consider clarifying its meaning between now and Report Stage. It introduces a discretion for the court to refuse to make an order in circumstances where if it did not have the jurisdiction under this section, it would regard this as an inexpedient order to make. It directs the court to have regard as to whether the order being sought by virtue of the jurisdiction it has is a reasonable order to make.
Why would the Minister apply in the first place if it was inexpedient?
The Minister can make mistakes.
I move amendment No. 36:
In page 81, between lines 7 and 8, to insert the following new subsection:
"(2) The amendments effected by subsection (1) of this section shall not affect any order made prior to the commencement of this section, but on or after the commencement of this section, the court may make such amendment to such order, or such further order, as may be appropriate in the circumstances.".
Section 84 fails to make clear the effect of the new nomenclature on restraint orders that have already been made.
The amendment proposes to ensure any order made under the Criminal Justice Act 1994 prior to the commencement of section 84 is not nullified by amendments made under section 84. Under normal rules of construction, such a provision is not necessary as legislation is generally not retrospective and any order made lawfully under the Act prior to the commencement of the section cannot be altered because it is a court order.
In addition, the provisions of the section amending the 1994 Act do not refer to orders. Most of the proposed amendments deal with terminology and clarification of terms. Subsection (h) clarifies that empowerment under this section of a member of the Garda Síochána to have access to or to take away a document is to be construed as an authorisation to do so. Subsection (e) clarifies that orders under the section may relate to property in an EU member state.
I do not believe the amendment will serve any purpose. Unless the Parliamentary Counsel, after considering the Senator's amendment and reading the debate, believes there is a grey area that needs to be addressed, I do not propose to make the amendment.
I have tabled the amendment on the advice of the Attorney General following recent judgments in two Supreme Court Cases, Browne v. Attorney General & anor and Kennedy v. Attorney General & anor. To date, there have been two domestic legal bases under which regulations have been made to give effect to the European Communities directives and regulations. These are regulations made under section 3 of the European Communities Act 1972 and the regulation-making power in a parent Act for domestic purposes with the same subject matter as the particular directive or regulation.
Two recent decisions of the Supreme Court found that regulations giving effect to European Community law and policy obligations are ultra vires of the parent Act. In those cases, regulations were under a standard regulation-making provision in the parent Act. It was not a European-oriented regulation-making power. The Supreme Court found that a general regulation-making provision in an Act that does not specifically provide for regulations giving effect to EU law cannot be used for the purposes of implementing EU law. The domestic regulations giving effect to EU law may only be made pursuant to a power expressly providing for such a purpose.
While it is the intention that all regulations now considered to be ultra vires will be remade together in a specific vehicle, I have been advised by the Attorney General, that I should amend section 86 to expressly incorporate a regulation-making power for international instruments. As the Bill gives effect to seven international instruments, it is important that the regulation-making power provision encompasses power to give effect to international and EU law.
When is it proposed to take Report Stage?
When is it proposed to sit again?
At 2.30 p.m. on Wednesday, 5 April 2006.