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Seanad Éireann debate -
Monday, 29 Jun 2020

Vol. 270 No. 1

Offences against the State (Amendment) Act 1998 and Criminal Justice (Amendment) Act 2009: Motions

I thank the Minister for coming to the House and for her patience. It is the first day back and our business ran over time. I congratulate her on her elevation to the office of Minister for Justice. I know she will do a fantastic job and she did a great job during the Brexit negotiations.

Nos. 6 and 7 are motions regarding the Offences against the State (Amendment) Act 1998 and the Criminal Justice (Amendment) Act 2009. Both motions will be debated together but decided separately.

I move:

That Seanad 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, 2020 and ending on 29th June, 2021.

I congratulate the Cathaoirleach and I wish him well in his new role. I offer my warmest congratulations to all Senators, especially those who are taking up their seats for the first time. I wish them all well.

I acknowledge the huge honour that it is for me to serve the State as Minister for Justice. It is a somewhat daunting task but it is one I am looking forward to and I hope to make a difference in an interesting Department of State. With the volume of legislation in my Department, it seems I am likely to be a frequent visitor to this distinguished House. I would also like to take this opportunity to pay tribute to my predecessor, Deputy Flanagan, who served the State with devotion and capability for the past six years, first as Minister for Foreign Affairs and Trade - the Department I have just come from - and most recently as Minister for Justice and Equality.

As one of my first duties in this role, I propose the renewal of these vital provisions. The House is aware of the importance of these measures and I offer my thanks to it for facilitating this session this evening. Senators will be aware that we face the extraordinary situation whereby these provisions will fall in the coming hours if the motions are not passed. The Offences against the State (Amendment) Act 1998 was enacted in the wake of the barbaric murder by the Real IRA of 29 innocent people in Omagh in August 1998. The awful carnage and grief of that event will never be forgotten by any of us. In the intervening years, the State has been relentless in its efforts to ensure that we have no more Omaghs. I pay tribute to the excellent work of An Garda Síochána and the PSNI in countering the threat posed by those engaged in terrorism. I look forward to working closely with the Garda Commissioner and I assure him of my full support.

I also express my deepest sympathy to the family and colleagues of the late Detective Garda Colm Horkan, who was so senselessly killed just ten days ago. Ar dheis Dé go raibh a anam dílis. As legislators, we have a duty to ensure that those like Detective Garda Horkan who serve on the front line, tasked with protecting us from this threat and who frequently risk their lives in doing so, have at their disposal appropriate measures to meet it.

Section 18 of the Offences against the State (Amendment) Act 1998 provides that certain sections of the Act must be renewed by the Oireachtas if they are to remain in force. Prior to moving any motion for renewal, the Act requires that a report on the operation of the relevant provisions is laid before the Oireachtas. This report was laid before the House by my predecessor, Deputy Flanagan, on 19 June 2020. I will not take up the limited time available to us this evening by going through each of the relevant sections of the Act in detail. The report that has been provided to the House gives great detail on the various sections, the offences and the other arrangements provided for. While I have no doubt that every one of us in this House looks forward to a time when these provisions will no longer be required, the reality of the current situation must be taken into account. When these motions were taken in the Dáil last week, my predecessor gave a commitment that these provisions will form part of an independent review of the State’s security legislation.

As many Senators will be aware, the Commission on the Future of Policing in Ireland recommended a review of all our security legislation, and I believe it would be sensible to include these provisions within the scope of that review. Such a review is timely to ensure that our legislation in this area is up to date, and fully meets the needs of the criminal justice system. It will be an independent review and my Department is currently undertaking work to define its scope, which will inform the timescale.

In terms of the provisions before the House today, the Garda assessment is that there remains a real and persistent threat from republican paramilitary groups on this island. The threat level from these groups in Northern Ireland, in particular, is regarded as severe. We know these groups oppose peace and democracy; and regrettably they remain committed to violence and criminality. In the past year, there has been an increase in paramilitary shootings and attacks in Northern Ireland. The continuing attempts to murder and maim, such as the attempt earlier this year to smuggle a bomb on a Belfast passenger ferry to coincide with Brexit, demonstrate a scant regard for human life. The cowardly attempts to intimidate journalists and politicians demonstrate a contempt for an open and free democracy. The State will continue to confront those who act in opposition to the democratic wishes of the people on this island.

The report before the Houses provides data that these provisions have been utilised in excess of 70 times in the period under review. The total number of people arrested under the provisions of the Offences against the State Act 1939 is 146, with 40 people detained for offences contrary to the provisions of the Offences against the State (Amendment) Act 1998. There have been seven successful convictions in the courts in the reporting period and a further 34 persons are currently awaiting trial.

It is the view of the Garda Commissioner that there is a clear need for the continuation of these provisions. We see the use of these provisions culminating in the most serious cases being brought before the Special Criminal Court, including cases of the gravest nature such as directing an unlawful organisation, and murder, with significant convictions for directing terrorism as recently as 2017.

These are significant cases, involving those involved at the most senior level in these organisations. In addition, in recent years there have been important convictions for membership of an unlawful organisation, where the court has been able to draw inferences using these provisions.

Many provisions of the Offences against the State Acts could have application to the international terrorist threat. We are thankful that Ireland has not suffered the kinds of attacks seen in other European countries, targeting innocent people going about their daily lives but the reality is that, as an open democracy, Ireland is not immune from this threat. Our security services continue to monitor the potential threat we face and continue to work very closely with their international counterparts in identifying and responding to that threat. It is the clear view of the Garda Síochána that the Act continues to be a most important tool in its ongoing efforts in the fight against terrorism. The report demonstrates that the provisions of the Act are used regularly. The State must retain in its laws the capacity to suppress terrorist groups, and we have a duty, as legislators, to ensure that is so.

On the basis of the information set out in the report and on the advice of the Garda authorities, I propose that the House should approve the continued operation of the relevant provisions of the Offences against the State (Amendment) Act 1998 to remain in operation for a further 12 months, commencing tomorrow, 30 June 2020.

I turn now to section 8 of the Criminal Justice (Amendment) Act 2009, which is also the subject of a motion before the House. It refers to four serious, organised crime offences that are set out in Part 7 of the Criminal Justice Act 2006. Section 8 of the Criminal Justice (Amendment) Act 2009 makes these offences scheduled offences for the purposes of Part V of the Offences against the State Act 1939 – that is to say, trials for these offences are to be heard in the Special Criminal Court subject to the power of the Director of Public Prosecutions, DPP, to direct that the offences be tried in the ordinary courts. This discretion for the DPP maintains an essential balance in deciding what cases are appropriate to be tried in the Special Criminal Court.

There is stark evidence of the willingness of organised groups to engage in murder, armed robbery, kidnapping, drug smuggling, counterfeiting and other serious offences. As public representatives, we have witnessed its devastating impacts on our communities. It is clear these groups have no respect for the laws of this land nor the safety of its citizens. By their behaviour, they demonstrate a callous disregard for everything that a stable and democratic society stands for. It is clear that if these people are prepared to take human life in pursuit of their aims, they will have no hesitation in subverting the system of justice. Accordingly, the State requires legislation that can combat those who would seek to subvert the system through the intimidation of citizens.

The ongoing gang-related feuds in Dublin and next to my constituency in Drogheda have brought into focus the depravity with which they operate. These feuds have resulted in appalling and barbaric murders that have shocked the country. Substantial Garda resources have been deployed to these areas and this has resulted in significant convictions and ongoing seizures of drugs, firearms and ammunition. Most important, Garda special operations - Operation Hybrid and Operation Stratus - which were established to target feud-related violence in these areas, have had some success in targeting these groups and in preventing murders since their commencement.

We are also aware that the activities of these groups are not limited to this State, nor are the efforts of An Garda Síochána, which has excellent relationships with its international counterparts. Of real concern is the evidence that there are links between organised crime and those engaged in paramilitary activity.

In all the circumstances, I consider it necessary to continue section 8 in operation for a further period of 12 months beginning on 30 June 2020. None of us wants to ignore the real threat posed to the State by these individuals, terrorist groups and organised criminal groups. Therefore, we must take appropriate and proportionate measures to meet the threat they pose. It is my view that the provisions should be renewed and, accordingly, I commend these motions to the House.

I thank the Minister for outlining the legislation to the House. I, too, pay tribute to the former Minister for Justice and Equality, Deputy Flanagan, who held not only Deputy McEntee's current portfolio but also that of foreign affairs and trade.

Group spokespersons have eight minutes and all other Senators have five minutes, which, by my calculation, if everyone decides to take up all their time, would bring us very close to the deadline for the passing of the legislation so it does not lapse. I, therefore, ask Members to stick to the time allotted for the debate.

I will be very brief because I know we have to get the legislation passed as urgently as possible. I welcome the Minister to the House and congratulate her on her appointment. This is very important legislation. The Minister outlined the very real threats posed by gangland activities and terrorist organisations working on this island. These are threats to our security - the security of the State, citizens in this State and democracy. When I was first elected in 2016, one of the first acts I had to perform was to pass these provisions, and I have done so on several occasions since. I was quite shocked then to see Members of this House vote against these provisions, given how important they are for the security of the State. I hope all Members tonight will vote in favour of them or at least abstain, given the very real importance of the provisions.

I dtús báire, ba mhaith liom comhghairdeas a dhéanamh leat, a Chathaoirligh, faoin bpost atá agat anois. Tá súil agam go n-éireoidh leat sa Chathaoir sin. I also welcome the Minister to the Chamber and congratulate her on her appointment. We are very lucky to have somebody of her experience and skills to take over such an important portfolio, and I am confident she will do an excellent job to safeguard us all. The legislation she has outlined to the House is perhaps a very important part of that. I take on board entirely what she has said about the significance of this legislation and its importance in protecting society and citizens in this country. A number of agencies and non-governmental organisations have expressed concerns about the operation of the Special Criminal Court and the manner in which it operates. However, I recognise its importance, it has its place, and the Minister has given us very clear reasons that is the case.

As a practising criminal barrister, I am very attached to the notion of juries and very concerned about situations in which we do not have them. Juries are an important part of the criminal justice system and take important factual decision-making out of the hands of people who have seen it all before, perhaps jaded lawyers. Every judge will have practised for a long time as a lawyer at the very least and will have seen it all before. The important thing about juries is that they bring fresh eyes to a case and mean that the factual decisions are made by ordinary citizens. Juries are also an important link between the citizenry and the administration of justice. I do not for a moment underestimate the importance of juries. Notwithstanding that, the Special Criminal Court, and non-jury courts in general, have been an important part of criminal justice for over a century. The Special Criminal Court has its place, and it is extremely important we pass this legislation again, as the Cathaoirleach and other speakers have noted.

Having a Special Criminal Court operating in the way it does in Ireland is predicated on a number of things. Obviously, we have rules of evidence and fair procedures that are safeguarded by other courts and the decisions of the Special Criminal Court being reviewable to those courts up the line. There is also the fact that there is a functional legal profession which defends the rights of persons before the court. It is also important to have good and fair judges who apply the law in an even-handed way. In the context of this legislation, it is really unfortunate that in the past week we have seen Members of the Oireachtas openly, unfairly and unjustly criticise judges merely for the decisions they have made and simply, it seems, because those Members did not understand those decisions or did not agree with them. I was also disappointed to see a second party and the chairman of the Labour Party weighing in on that and supporting that decision. We, as legislators, must recognise the separation of powers in this country and the importance of an independent Judiciary and judges who exercise their powers without fear or favour and without wishing to curry popularity with politicians. The Judiciary is an extremely important institution within the State, and we must recognise that. The kinds of comments we saw last week and the kinds of campaigns that were launched last week are totally unacceptable.

Notwithstanding that, and I ask the Minister to take this under review in the coming year as we look perhaps at this legislation again, we should look at the manner in which the Special Criminal Court operates. At the moment the decision as to whether certain cases go into the non-jury court or not is made by the Director of Public Prosecutions and she will certify whether a case is appropriate for that procedure or not. She does so sparingly, in fairness to her, and carefully. Notwithstanding that, the DPP is not a disinterested party within the process, and it seems to me appropriate that that decision could or should be taken out of the hands of the prosecutorial authorities and perhaps put into the hands of an independent judicial authority, perhaps a High Court judge. An application could be brought by the DPP to the High Court as to whether a case is appropriate for treatment by the Special Criminal Court, a non-jury court, or not. I think that would deal with many of the concerns expressed by the NGOs I mentioned earlier.

As I said already, the protection of the rules of evidence for defendants before the Special Criminal Court is extremely important. However, where rows arise in the course of a trial as to whether a piece of evidence is admissible or not, in a normal jury trial the jury would be excluded for consideration of the admissibility of that evidence. If the evidence is excluded thereafter, the jury considers the factual matrix without having any knowledge of the evidence that was deemed inadmissible. By contrast, in the Special Criminal Court, a voir dire hearing, or that kind of evidential hearing, takes place not just before but for the decision of the judges who are also the jury, if you like, in the case of a Special Criminal Court trial. It seems to me that we should also look at the evidential provisions in the course of the practice and procedure in the Special Criminal Court to see if there should perhaps be a separate judicial authority to make rulings in respect of evidential questions that arise in the course of a trial.

As I said, however, I take on board entirely what the Minister said about the importance of this legislation, the rationale for it and the fact the Special Criminal Court has a very clear place in the Irish criminal justice system. I would be grateful if she would consider some of the modifications I have suggested to hone the system and to create even greater safeguards for persons brought before that court in order that we could perhaps consider putting in place a system that is more transparently independent than the one that currently exists.

I thank Senator Ward for his kind words and for bringing the benefit of his knowledge to the debate. It is hoped he will be able to contribute to the review that is ongoing.

I had intended to propose an amendment to this motion to require a review of the Offences against the State (Amendment) Act and the Criminal Justice (Amendment) Act. However, given the statements made by the outgoing Minister, Deputy Flanagan - and I acknowledge him as somebody who came very regularly to this House and engaged very respectfully and actively with it - on the intention to have a review over the course of the year, I have not tabled that amendment.

I do, however, wish to comment a little on the nature of the review and what might need to be discussed within it. First is the question of who might properly conduct the review - the Law Reform Commission or the Commission on the Future of Policing in Ireland.

I congratulate the Minister on her appointment. Those are issues she may wish to give due consideration to. I have huge respect for both of those bodies, which make immense contributions to the State. A review could not, and should not, be confined to the consideration of a single examiner, but must have regard to the full landscape of the law, including individual rights and due process, and should consult relevant civil society and human rights groups. That would be important for the success and credibility of the review.

I wish to highlight four issues that will be important. The first relates to the definition of "terrorist activity", which the Irish Human Rights and Equality Commission has described as so impermissibly wide that it risks describing groups opposing dictatorial or oppressive regimes, anti-globalisation groups, anti-war or environmental protestors or even militant trade unionists as terrorists. That definition needs to be functional and it needs to be examined carefully so that we do not in any way stifle civil society activity, which is something Ireland has always seemed to support.

The second issue relates to specific analysis of the ordinary courts in the administration of justice in Ireland and their potential to effectively act in relation to offences listed in the Acts. The operation of the Special Criminal Court should only be allowed where our ordinary courts are shown to be unable to adequately administer justice. The Minister mentioned "appropriate" and "proportionate". The real test is "necessary" and "proportionate". As Senator Bacik rightly highlighted when she spoke on similar motions last year, the burden of proof is on the Government to actively demonstrate that there are no effective alternatives to non-jury trials. Are there, for example, other measures that might be taken to protect juries in sensitive cases? Moreover, it is important to note that many important criminal prosecutions relating to organised crime in this State have taken place in the ordinary courts.

The third issue relates to compliance with UN law and recommendations, particularly in the context of Ireland taking a seat at the UN Security Council. The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has specifically criticised Ireland's Special Criminal Court, noting the seepage of the exceptional into the ordinary in ways that have not served the rule of law nor the protection of human rights well. At a time when we see a worrying new wave of authoritarianism across the globe, along with attempts to undermine and attack rule of law, we need to think very seriously about what message we are sending and what tacit signal we might send through our own policies and practices.

I thank Senator Ward for raising the issue of evidence, because that is an important example in that regard. It is concerning that during the operation of these Acts there have been attempts, thankfully unsuccessful, to seek prosecutions based on belief evidence without disclosure of underlying evidence. All of us can see and imagine what such practices could mean in a state that sought to quash opposition or oppress a minority. Faith in the rule of law and the fair operation of the law is one of our greatest defences against radicalisation and in the underpinning of democracy. Any erosion of due process carries risk.

In that context, I wish to briefly remark on a related issue and I hope that the incoming Government will not seek to undermine the rights of the public or organisations in relation to planning and development. It is vital that individuals and organisations will retain the right and opportunity to challenge and seek clarity on decisions made by Government or public authority where those decisions may be in breach of national or international law, including, for example, the EU birds and habitats directives. Moreover, financial obstacle or threat should never be deployed to make challenge solely a privilege of the wealthy.

Finally, I would like to give clear notice of 12 months that the renewal of this Act in June 2021 should not be assumed. I believe it would be irresponsible to have cases under way that might be vulnerable to the withdrawal of approval at that time. The separation of powers was referenced, which I also take seriously. As a Senator and a legislator, I will base my scrutiny and decisions at that time on the outcomes of the review on human rights law and on legislative rather than operational consideration. I want to make that clear.

I again warmly congratulate the Minister on her excellent performance in her previous role and on her new role. I look forward to engaging further with her on these issues.

I welcome the Minister to the House and join others in congratulating her on her recent appointment and on her great work in her previous role. I am glad to see four great women nominated as Ministers but I am sorry there are not more women in Cabinet. In this incoming Seanad, 40% of Senators are women and that is a notable high, which I am glad to see. Many of us will keep pressing for greater participation of women in politics and greater recognition in Cabinet because we still have very poor overall numbers of women who have served in Cabinet.

Like many colleagues, I have spoken on various occasions in previous years in debates on these renewal motions. I am pretty sure we have never debated the renewal motion so close to the deadline. We are four hours away from the time at which the provisions will cease to be in operation, to use the words in both Acts, so we are treading very close to the deadline. I very much welcomed the proposal by the Minister's predecessor for a comprehensive review of security provisions and of these motions. That is very timely. Like Senator Ward, I have an attachment to the principle of jury trial, as do must people who have practised criminal law or know something about it. Indeed, I practised in the Special Criminal Court so I know the way it operates. It should be an exception and it is an exception in our constitutional system. Under Article 38.3.1°, it is an exception to the due process guarantee in Article 38.1, because special courts under the Constitution may be established by law in cases where the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. We would do well to remember that when we debate these motions every year and when the review is undertaken.

I want to address a point that Senator Higgins made, and that both my colleague in the Dáil, Deputy Sean Sherlock, and I made when we debated these motions last year. This and one other point need to be highlighted in the welcome review that is to be undertaken. The first point relates to circumstances where special courts are being established and non-jury trials are being retained in respect of certain offences, through the renewal of the provisions such as those we are debating where such offences are scheduled offences under these Acts. In such circumstances, the inadequacy of the ordinary jury courts to determine justice must be determined in accordance with law. This time last year, Deputy Sherlock tabled amendments in the other House seeking to copperfasten that requirement to ensure that more information would be provided to us as legislators each year in the annual report as to why the Government says that the ordinary courts were inadequate to administer justice. We get these reports every year. I read them again this year. The reports disclose very little information. They disclose basic numbers, which the Minister outlined, as to the number of times each year various provisions have been used. For example, section 2, the inference-drawing section, was used on 11 occasions in the past 12 months. Section 7 was used 20 times. However, a number of provisions were not used at all in the past 12 months, namely, sections 4, 6, 8, 12 and 17. I recall that last year, a number of those sections had not been used in the previous 12 months, either, namely, sections 6, 8, 12 and 17. That is in respect of the Offences against the State (Amendment) Act 1998. In respect of the Criminal Justice (Amendment) Act 2009, we see a similar pattern. As the Minister stated, there were 72 arrests in the past 12 months for offences under this Act but some provisions were not used at all, notably section 71A, which provides for the offence of directing the activities of a criminal organisation. Patterns of usage and non-usage are disclosed in the reports but there is little substantive information as to why the Government says the ordinary courts are inadequate to secure the administration of justice. That specific point was the subject of our amendment, where we sought last year to obtain further information on this from the Government.

The previous Minister, Deputy Flanagan, rejected that amendment, saying that Members would engage in their own research, consideration and knowledge, which will form their views as to the operation of normal courts and their capacity to administer justice. The amendment was lost. The difficulty with the previous Minister's response is that we, as Oireachtas Members, must inform ourselves on points when we are debating these motions every year and it can be countered that much of the information which would be useful to us is primarily within the domain of the Government, and not within the domain of us as legislators. There are alternative ways of going about this. In the case of the financial emergency measures in the public interest legislation, for example, there is a requirement for the laying of certain financial information before legislators when we are making decisions on renewal. That point about the basis on which the Government seeks to bring offences before non-jury courts is one I would like to see taken on board in a comprehensive review.

The second point also relates to the information contained in the reports we get each year, specifically information about patterns of usage and non-usage. I have already pointed out that some provisions are typically not used over the previous 12 months. If one looks back over different years, one sees that certain provisions are almost never relied upon by prosecutors while others very frequently are. Legislators and whoever is conducting the review should be looking at these patterns to see whether the retention of certain provisions enforced for periods longer than one year should be considered. Conversely, where there is a clear pattern of non-usage of a provision over a number of years, the repeal of such provisions should be considered. These provisions are sunset clauses, in effect, but it raises the question of how useful such clauses are if there is very little substantive scrutiny each year. Perhaps we should be looking instead at a more considered approach to the specific provisions under review.

Having said that, I am very glad that a review is promised. That is very important. The review should consider the nature of the renewal procedure and, in particular, the sort of information legislators should have if we are to continue having these sorts of sunset clauses in place. It should also consider the taking of more decisive action in respect of specific provisions where patterns of usage and non-usage are disclosed. The Labour Party group will not be opposing these motions but we very much welcome the review and we very much want to ensure there is substantial scrutiny of these provisions, particularly in the light of the importance of the principle of jury trial. The Irish Council for Civil Liberties and many other human rights bodies have made very robust calls for the abolition of the Special Criminal Court, or for its less frequent usage. That also needs to be borne in mind in any review.

Lastly, I refer to Senator Ward's comments regarding a personalised attack on the Judiciary. I agree with the Senator that it is never appropriate for Members of the Oireachtas to make personalised attacks on judges. It is one thing to criticise a judgment or the outcome of a court case but it is quite another to make personalised attacks on judges. That is not appropriate in a democracy. I again congratulate the Minister on her appointment.

I welcome the Minister, Deputy McEntee, and congratulate her on her appointment. It is a fantastic opportunity to be taking over at the Department of Justice and Equality at this particular time of transformation. We have seen some transformation carried out under the auspices of previous Ministers, Frances Fitzgerald and Deputy Flanagan, but the best is yet to come in this regard. Further transformation will be possible as a result of the implementation of the recommendations of the report of the Commission on the Future of Policing in Ireland.

This is my seventh or eighth year as Government spokesperson on justice that we have had to, at this time of year, discuss putting this legislation through for another 12 months. Senator Bacik, who is here doing it as long as I am, is quite right that the timeline was never as tight as it is today, with only three or four hours left to get it through. In previous years, we always had a debate on whether the legislation continued to be necessary. While I totally accept that there are provisions of this legislation which have not been used very much - in fact, some have not been used at all - there are other elements and sections that are frequently used. The reality is that on the island of Ireland, we still have a significant threat from dissident republicans. It was only last year that we saw a journalist, Lyra McKee, murdered in this country by those dissidents. The terrorist threat certainly has not gone away, much as we would like that to happen. There is also the new threat of international terrorism, which we have not really seen yet in this country and we hope we never will. However, we must have legislation in place to ensure that if and when such activity presents itself, An Garda Síochána is equipped to react quickly to it.

In terms of the legislation itself, there is a commitment as part of the future of policing report recommendations that we would review all our security legislation. A significant development took place last Wednesday in Dáil Éireann when Sinn Féin did not press a vote on this particular legislation on the clear understanding from the previous Minister, Deputy Flanagan, which has been echoed here today by the new Minister, Deputy McEntee, that there will be a comprehensive review of it as part of the implementation of the future of policing report. I think it is appropriate at this stage that the legislation should be reviewed in any event.

Another facet of this debate is the threat arising from organised crime, particularly in our cities. We have seen the remarkable success that An Garda Síochána has had in terms of arrests and prosecutions of members of the Hutch and Kinahan organised crime gangs in spite of the fact that nearly 20 people have been murdered. It is also appropriate that we should acknowledge the activities of An Garda Síochána, in collaboration with the Criminal Assets Bureau, in the mid-west area which includes Clare, Limerick and north Tipperary, where there was a significant seizure of drugs in recent weeks. That success has done tremendous damage to organised crime in the mid-west. One hears often from An Garda Síochána, senior members of which I have engaged with regularly in my capacity as spokesperson for justice over the years, that gardaí have this legislation in their back pocket if they need it. They do not want to use it, no more than they wanted to use the legislation introduced to deal with the pandemic, but it was very useful to have it in their back pocket if it was needed. We have seen that the legislation we are discussing this evening was needed in the past 12 months.

I appeal to Members to support the legislation on this occasion in the fullness of the knowledge that there will be a review of it in due course. We would all love to see a day when we do not need this type of legislation in this country. Unfortunately, because of the history over the past 30 or 40 years in Northern Ireland, we have needed it. Our more recent history in terms of organised crime means we have needed it. I hope the day will come when we will not have to debate these types of provisions and, as has happened in this instance, the process of formation of a Government will not have to be escalated in order to ensure both Houses of the Oireachtas are in place to pass the resolutions relating to the legislation. On that front, there is tremendous respect due to all parties who rolled up their sleeves to make sure this very important deadline was met.

I look forward to the review of this legislation. In the next couple of months, the Minister might come to the House and go through the nuts and bolts of what she is proposing in this regard and what the context of the review will be. It is part of the ambit of the implementation of the report of the Commission on the Future of Policing in Ireland and it would be useful to have the Minister here to discuss that report. It is a groundbreaking piece of work which was completed during the last Oireachtas term. I echo the sentiments of colleagues in wishing the Minister the very best of luck in what is an extremely important Department.

I join other Members in welcoming the Minister, Deputy McEntee, and congratulating her on a very challenging but, I believe, very rewarding appointment.

It is much deserved. She did our country proud when she was spokesperson for the Irish State on Brexit. I was glad to acknowledge that in the previous Seanad and I reiterate my best hopes for her tenure as Minister for Justice.

I am one of the great fans of jury trials, and I am not saying that just as a cliché. The fundamental requirement that the people should have confidence in the system of justice requires jury trials. Some members of the Judiciary believe that jury trials are anachronistic but my own experience of prosecuting and defending for many years convinced me that jury trials are superior in commanding public confidence compared with judge-only trials. In any instances where judge-only trials have been implemented, controversy follows, while there is very little argument with the decision of a jury by anybody in Ireland.

Second, there was a time when the Minister's Department sought to limit jury trials for petty theft. I happened to be in the Attorney General's office at the time and I took the very strong view that if any of us were accused and convicted of stealing a box of eggs from a supermarket, it would be the end of our career. If that applies to Members of the Oireachtas and people in important positions, it equally applies to a child of 18 or 19 years of age who is accused of such an offence. There are probably 150 statutes on the Statute Book which disqualify people from holding particular positions, such as an officer of a credit union, if they have a conviction for dishonesty. I strongly believe in jury trial and that however inconvenient it may be for some, it is a real guarantee that justice is done.

I welcome and congratulate Senator Ward on his election to the Seanad. This place is now becoming well-stocked with barristers. It is amazing how many barristers have suddenly emerged this time around. Senator Bacik and myself were once the sole barristers but now I think there are five of us in this House, as well as solicitors. That is a good thing. Senator Ward said a few things with which I have some sympathy, one being that we have to be very jealous of jury trial. Senator Bacik quoted Article 38.3 of the Constitution and the "ordinary courts". The word "ordinary" means something in this context. The ordinary system must be jury trial. Only extraordinary cases can attract non-jury trial, in accordance with that Article.

The Article also refers to the determination, in accordance with law, that the ordinary courts are inadequate to deal with certain cases. While I may not have done anything about this when I was Minister for Justice, Equality and Law Reform, I have always thought in the back of my mind that to decide that a category of offences is automatically going to the Special Criminal Court, unless it is hauled back, is not consistent with Article 38.3. It must be case-specific. I doubt the efficacy of a system which would entail one judge determining whether a case should or should not go to the Special Criminal Court. Massive trials would have to be done in secret because if they went to a jury and all the dirty linen about a particular person accused of an offence, and the State's suspicions of his or her propensity to interfere with a jury, had to be laid out in public, God only knows how the principle of innocent until proven guilty would be interfered with.

There is a slight difference in emphasis between me and Senator Bacik on this next point, on which I agree with Senator Conway. I do not believe it really matters how often an offence is actually prosecuted. I will take the example with which we are dealing, namely, directing a criminal organisation. While it may be extremely difficult to prove, the fact that an offence or inferences relating to that type of offence exist does not mean we should look at it askance on the basis that it does not happen very often. That is only because it is very hard to prove. We know there are people directing a whole load of criminal organisations in this State. It is getting the evidence that is the crucial difference.

Some of the provisions in the Criminal Justice Act 2007 attracted some degree of controversy and I took a fair amount of flack as Minister for Justice, Equality and Law Reform in respect of some of them. However, one thing that Act achieved was to allow for apparently credible statements that had been withdrawn or abandoned by witnesses to nonetheless be used as evidence in both jury and non-jury cases. The reason we did that, and I want to say this now because it attracted a fair amount of criticism at the time, was that we believed that as an antidote to intimidation and a situation where the Special Criminal Court would be the court of first instance, we had to deal practically with people being intimidated out of statements they had already made. A colleague of mine in the Law Library wrote an article at the time describing the section which made such statements admissible in very controlled circumstances. He attacked it in the very strongest terms. I will not use the terms he used in that article because I do not want to misquote him, but the Canadian Supreme Court had held that to make those statements inadmissible was so unreasonable as to be unconstitutional in Canadian law. It actually changed the common law to make them admissible without any legislative Act whatsoever. I know this is a bit of an arcane point but it has to be made.

The last thing I will say is this: by all means have a review but do not make it an impractical one. It is very easy to throw obstacles in the way of prosecution but we have to prosecute. If we do not prosecute because we erect more reasons not to or more obstacles to prosecution, we will throw out the baby with the bathwater of jury trial and lose public support. The Minister should have her review. Her predecessor, who is a great man, has promised this review and I presume the Minister is committed to it as well. She should have the review, by all means. Senator Higgins said that nothing should be presumed about the extension of these provisions next year and that some of them could be modified. Anyone who believes that we will not need the Special Criminal Court in a year's time should take a look at what is happening. I saw an allegation today, though I do not know whether it is true, that a particular individual had been sourcing arms in Lithuania to bring into Ireland to kill Irish people. One only has to think of what happened to Lyra McKee and ask oneself whether it is naive or sensible to think we will not need a Special Criminal Court in a year's time.

I dearly wish we did not. However, I, for one, live in the land of reality and, unfortunately, whatever reforms or safeguards are introduced as a result of a review, it would be very dangerous to presume that these emergency provisions can be dispensed with a year hence. I see no sign of that.

We must conclude by 8.46 p.m. and the Minister must speak at 8.38 p.m.

Gabhaim buíochas leis an gCathaoirleach agus beidh mé chomh gasta agus is féidir liom. Gabhaim comhghairdeas leis an Aire as a ceapachán agus a hainmniú mar Aire Dlí agus Cirt agus Comhionannais. I congratulate the Minister on her appointment. Like other colleagues, I followed with great admiration her work in her previous role during a very challenging and difficult time. She served in that position with great distinction. I begin by echoing the condolences for Detective Garda Colm Horkan. I also wish to take the opportunity very quickly to send condolences to the family of young Noah Donohoe from Belfast who, unfortunately, went missing and whose body was recovered in recent days. Our thoughts go out to his mother and his many friends and family.

Our approach to this item has been stated in the Dáil. I hope the Minister will forgive me, and I do not like doing it, but I must read my notes from my telephone as we had some technical difficulties trying to get them printed. I ask her to excuse me for doing it. For too long the annual debate on the renewal of these emergency provisions has been characterised not by a proper examination of either provision or the provisions' effectiveness but by the historical political marriage to this legislation by both Fianna Fáil and Fine Gael. For the record, we are not debating the continued use of the Special Criminal Court or the principle of non-jury courts. That is contained in primary legislation. What we are being asked to renew is emergency provisions. By its nature emergency legislation should be required to deal with an emergency. Whatever circumstances, and perspective on them, existed when these powers were first passed, those circumstances plainly do not exist now.

There is no emergency in 2020. What there is in communities throughout this State is ongoing issues with serious organised crime. These emergency provisions did not stop the heroin barons in the 1980s, John Gilligan and others in the 1990s and the Kinahans and their like in the 2000s getting mega-rich on the backs of ordinary, decent and many working class communities while the political class sat here nodding these provisions through, year after year, with little or no regard for what was needed to deal with serious organised crime. What we must put in place in the 21st century is 21st century law that will deal with 21st century criminal gangs. The criminal gangs are no respecters of national borders, operate on a global scale and very often operate entirely online. Do people seriously expect legislation which was mainly drafted in the 1930s to be able to deal with these modern challenges? As legislators, we owe it to the people who sent us here to examine what we are voting on. We owe it to the communities that are ravaged by the activities of international criminal gangs to put in place the necessary legal framework to allow the courts and the Garda to do their jobs effectively.

That is why Sinn Féin has called for a review of these powers. The current legislation has failed communities. Those failures are written in the blood of the young people killed in feuds and the lives lost to heroin and other drugs, and are seen each time a parent ends up trying to scrape together money to pay off a child's drug debt to try to save the child's life in the face of threats from thugs. The reason we called for a review is to create the space over the next year to put together primary legislation which is not couched in an emergency, is not reliant on an annual review and is not contaminated by annual political discourse, but which puts in place a 21st century legal framework aimed at keeping our communities safe. Surely we can collectively build a political consensus on that aim. Surely we can bring a proper focus on what is required in the Ireland of today, not fighting political battles over a legislative measure from another time. Indeed, it is worth noting that the Good Friday Agreement, endorsed overwhelmingly by the Irish people 22 years ago, demanded that the Irish Government initiate a wide-ranging review of the Offences against the State Acts 1939 to 1985 with a view to both reform and dispensing with those elements no longer required as circumstances permit.

I appeal to other parties and stakeholders to open the door to a better way through the review process, to abandon the notion of emergency powers, to move to the space of giving the Garda and the courts the tools to keep communities safe, to do it in a mature, sensible and grown up way, to take counsel from those on the front line and then go about framing effective legislation that can become the start of a new way of tackling the criminal challenges the Ireland of 2020 faces. We have called for that review and the Minister referred to it in her contribution. Other colleagues have also referred to it. While I appreciate that it was only announced recently and the Minister has only taken office in the last few days, perhaps she will be in a position to facilitate us, for the purposes of the record and our information, by outlining some of what she understands and hopes that review will be and what she intends to do with it as Minister so all the points raised by me and Members across the House and across political views can be taken on board. We can assist the Minister and work collaboratively and positively with the shared stated aim of trying to get legislation that works effectively, is human rights compliant and will ultimately work to keep the communities that are suffering the most safe from the criminal gangs who are putting them under such threat.

I extend hearty congratulations to the Minister. From our small engagement on European affairs I found her to be serious, compassionate and intelligent. That arms her well for the job at hand.

I served on a jury, I qualified as a solicitor and I am now a politician, so I wish to say a few words from those perspectives. It is not just that justice is done but that justice is seen to be done. That does not only mean what happens in the courts but also what happens here and in the legislative process. We must take our responsibility incredibly seriously. We are accused of a form of auto renewal of legislation and it has become accepted practice that each year we automatically renew it. If we are to do our jobs properly, we must carry out the review. Certainly, there are very serious situations at hand where a jury is not always the best outcome. On that basis, and on the basis of what the Minister has outlined, we will accept her recommendation, but we would like to see that review take place.

I congratulate Deputy McEntee on her appointment as Minister for Justice and Equality. I am delighted to be here today, the day the renewal of certain provisions of the Offences against the State (Amendment) Act 1998 and the Criminal Justice (Amendment) Act 2009 comes before the House. I am passionate about fighting crime at every level of society. While the provisions under discussion today deal with highly important aspects of criminal justice, such as criminal prosecution in the Special Criminal Court, it is also important to do our part at local level to assist An Garda Síochána in building safer communities in which we can live, work and play. I have worked tirelessly to do that in all my years in political office.

In 2017, the communities of Duleek and Donore installed top of the range closed circuit television, CCTV, to help An Garda Síochána in the fight against criminality in the area. I became a victim this year as a result of criminality in our area and drug crime.

In late 2018, the Data Protection Commissioner informed the data controller that because of number plate recognition software, our system was in breach of GDPR guidelines. This aspect of the monitoring system had to be disabled as there is currently no legislation in place that allows the Garda to use this software. It is unbelievable that number plate recognition can be used at toll bridges, airports, ports and multistorey car parks to take money from people, yet it cannot be used in the fight against crime. This is one goal that I wish to address with the help of legislators in the House. I have no doubt this law will provide a great tool to assist the Garda throughout the country in the fight against crime.

I thank Senators for their time and for moving quickly given, as many have mentioned, we are close to the wire. I am very grateful to the House for its consideration of these two motions and I thank Senators on all sides for their contributions to the debate on both. Naturally, I welcome the support expressed by all of the speakers for continuing these provisions and I appreciate the shared commitment in the House to maintaining in place what is a robust legal framework for the Garda and the courts when dealing with some of the most serious offences that may threaten the State and the operation of the criminal justice system.

As I have outlined, the Offences against the State (Amendment) Act 1998 remains an essential tool in tackling the activities of terrorist groups across the island. We cannot be blind to the ongoing threats that so-called dissidents pose to our way of life, and their disregard for peace and democracy requires a robust and proportionate response. While I too would very much welcome a time when these provisions are not needed, now is not that time. We continue to see the devastating impact that drugs have on families and communities and the devastating impact of the activities of the organised criminal gangs, which are wreaking havoc throughout our country. As legislators, I believe we have a duty to do what is necessary and reasonable to protect those citizens.

While I agree with many Senators and it is also my firm view that a jury trial should be preserved to the greatest extent possible, we have to accept this is not always the reality and it is not always possible because of the threats posed to our citizens due to those who seek to intimidate jurors or potential jurors. The renewal of these provisions sends a very clear message to those who wish to threaten or to intimidate that this State will not tolerate those wedded to violence or those who oppose peace, democracy and the rule of law. I am very grateful to Senators for their positive consideration of these motions.

In regard to the review, I again thank Senators for welcoming this commitment. I am fully committed to this review. As many will be aware, it has arisen from the report of the Commission on the Future of Policing in Ireland, which made a number of recommendations, one of which is a comprehensive review of the legislative framework within which the police operates in the area of national security. A scoping exercise is currently under way with regard to this, which will examine a number of areas encompassed by overall security legislation and, obviously, it would be sensible to include both of these provisions. Nonetheless, I take on board a number of suggestions and recommendations made by Senators and, hopefully, I will have an opportunity to return to this issue at a later date.

I wish all Senators and the Cathaoirleach well, especially Meath Senators and in particular those who have started for the first time today.

I thank the Minister I apologise again for delaying her for so long on her first day here. We will endeavour to do better the next time.

Question put and agreed to.

I move:

That Seanad Éireann resolves that section 8 of the Criminal Justice (Amendment) Act 2009 (No. 32 of 2009) shall continue in operation for the period beginning on 30th June, 2020 and ending on 29th June, 2021.

Question put and agreed to.

When is it proposed to sit again?

At 2.30 p.m. on Tuesday, 7 July 2020.

The House will meet again at 2.30 p.m. on Tuesday, 7 July 2020 in the convention centre.

The Seanad adjourned at 8.25 p.m. until 2.30 p.m. on Tuesday, 7 July 2020.