I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials to this meeting, the purpose of which to consider Committee Stage of the Criminal Justice (Terrorist Offences) Bill 2002.
SECTION 1.
Criminal Justice (Terrorist Offences) Bill 2002: Committee Stage.
I move amendment No. 1:
In page 7, between lines 15 and 16, to insert the following subsections:
"(2) The Offences against the State Acts 1939 and to 1998 and this Act, insofar as it amends those Acts, shall be construed together as one and may be cited as the Offences against the State Acts 1939 to 2004.
(3) The Proceeds of Crime Act 1996 and this Act insofar as it relates to that Act shall be construed together as one and may be cited as the Proceeds of Crime Acts 1996 to 2004.".
I welcome the Minister. My amendment is fairly straightforward. I suggest a description of the Offences against the State Act be cited in the Proceeds of Crime Act 1996. The reason is that significant amendments have been made to the Offences against the State Act and to the Proceeds of Crime Act. This Bill provides for the confiscation of the proceeds of terrorist crime in much the same way as does the proceeds of crime legislation. We should make them collectively amenable to this Title. I suggest a designation which reflects that.
The draftsman has advised me against accepting this amendment. Collective citations can arise where an Act is, or Acts are, being amended in a number of places. In this instance, the Offences against the State Acts are being amended in a number of places. Other Acts are also being amended — for instance, the Criminal Justice Act 1994. Between Acts referred to, and Acts amended, there is a massive list of statutes in the Bill. It is really a question of style, but the draftsman makes the point that we will not have collective citations for everything here. In regard to the Proceeds of Crime Act, I am advised that Act is not being amended and that there is only a reference to it. That is the type of problem we face.
For the record, and so the Deputy's advisers know the thinking behind it, the question of collective construction is different from collective citation and is generally only considered in the context of non-textual amendments. However, the Proceeds of Crime Act 1996 is not being amended, so the question of collective construction does not arise in regard to that Act. Most of the Offences against the State Act amendments are textual and even the few non-textual amendments are drafted in such a way that there is no need for a collective construction.
I am advised the wording of the amendment is dubious in that it does not refer specifically to those sections of the Act which it seeks to have included in a collective citation or construction mode. My draftsman tells me it is not a good idea.
Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
My point in regard to section 2 really relates to the commencement provision. The Bill should come into operation on its passing. The purpose of the Bill is to implement a number of less than useful conventions and an EU framework decision all agreed in the aftermath of 11 September 2001. This Bill should have been on the Statute Book long ago. There is an obligation under Article 11.1 that all EU member states must take all necessary measures to comply with the framework decision by the end of 2002. We are now heading towards the end of 2004. Some of the conventions about which we are talking go back a long way — in fact, one goes back to 1973. The convention on the taking of hostages goes back to 1979.
There may be many reasons for a delay, but it is three years since the events of 11 September 2001 and the Criminal Justice (Terrorist Offences) Bill 2002 has still to be enacted. When we enact it, which I hope will be shortly, I want to see it in operation straight away. That is the main point I make in my proposal to amend the power to bring it into operation on a day appointed by the Minister. Rather than do that, it should be brought into operation immediately it is passed by the Oireachtas.
It might be appropriate to introduce this in terms of section 2. Much legislation of this type is by its nature temporary. I cannot find anything so far to suggest that is the case with this legislation. There are renewable sections to the Offences Against the State Act which are renewed by the Dáil on an annual basis or in some other form, perhaps biennially or every five years. There is nothing in this Bill which would allow the House to review it and if need be, renew, amend or reject it, as is the norm for this type of legislation. Given that it was a rushed response to the events of 11 September 2001, even though it had been in gestation before that, it should have a temporary clause regardless of whether this is the appropriate section to introduce this. I intend to table amendments to that effect at a later stage.
Deputy Ó Snodaigh suggests a different concept for the legislation, which is a sunset clause on an extendible basis. I do not propose to do that because I believe it will become a semi-permanent part of our legislation. No legislation is permanent but this is intended to be a standing part of our legislation.
I agree with Deputy Jim O'Keeffe that this has been in gestation for long enough. Two things must be borne in mind, however. First, the framework decision brought in after 11 September 2001 was done on an accelerated basis. I have since had to grapple with the critique that the Human Rights Commission afforded of the framework decision to try to find ways to accommodate some of this in the official amendments. I have considerable sympathy with Deputy Jim O'Keeffe's point that the legislation has been around for long enough without loopholes for delay. As regards Part 4, the financial institutions sought some lead-in time. Whether they have had sufficient time to accommodate themselves is a question I will examine between now and Report Stage. However, I assure the Deputy that in my view this Bill should be passed and brought into operation as quickly and possible. I do not want to accept the Deputy's amendment now, but I will see if section 2 is needed between now and Report Stage.
I accept the complications that needed to be addressed and the Minister's heavy schedule in respect of other legislation. I also accept the fact he will examine it further between now and Report Stage. At that point I will ask him either to accept my amendment or perhaps he might be in a position to give a prospective timescale for implementation. On that basis I withdraw my opposition now on Committee Stage.
Question put and agreed to.
SECTION 3.
Amendments Nos. 2, 3 and 4 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 2:
In page 7, subsection (1), between lines 30 and 31, to insert the following:
"‘Irish citizen' means a citizen of Ireland and includes a person entitled to be a citizen of Ireland;".
The first amendment involves inserting a definition of an Irish citizen. The main point is that an Irish citizen should be referred to as a citizen of Ireland and should include a person who is entitled to be a citizen of Ireland. Reference is made in the Bill to Irish citizens a number of times. In the absence of a clear definition, the term "Irish citizen" does not necessarily include a person who is entitled to be an Irish citizen. When I was reading the Bill, in particular section 9(3), recent terrorists incidents came to mind, for example, that involving the late Mr. Kenneth Bigley who was murdered by terrorists. I am thinking of the present incident involving Mrs. Margaret Hassan. Although I am not quite sure of her current situation in terms of citizenship, she is certainly entitled to Irish citizenship. I am also thinking of the other lady from Northern Ireland whose name escapes me at the moment and who is in Afghanistan. She is also entitled to Irish citizen having been born in Northern Ireland.
I am not clear that the Bill as drafted applies to people such as these who may not automatically be regarded as Irish citizens but who would be entitled to citizenship. The reason I have tabled this amendment is that I believe the same protection should be extended to them as would be available to an Irish citizen. That is the purpose of the first amendment on the extended definition of Irish citizens. Does the committee want me to deal with the question of the ships?
Yes.
That is a very technical point. It arises in regard to what should be put into legislation, an issue on which we had a discussion during the passage of the Statute Law (Restatement) Act 2002. In the Bill a reference to an Irish ship is given the same meaning as in section 9 of the Mercantile Marine Act 1955. It means that anybody who has to check the definition of an Irish ship must consult the 1955 Act. For the sake of completeness, it would be better from a drafting viewpoint to insert the actual definition of an Irish ship rather than referring to another Act. It is a technical point and I put it forward for the Minister's consideration.
Deputy Jim O'Keeffe's first amendment seems to be eminently reasonable and might well be desirable in certain circumstances, as he outlines. I certainly support it. My amendment is intended to be helpful to the Minister by seeking to insert the following wording: "An act committed on a fixed platform above the continental shelf of the State shall be deemed to have been committed in the State for the purpose of this Act." That might well refer to something like an oil platform which would not be on land, strictly speaking, but would form an extension of the country. The amendment would make it clear that acts committed there would be deemed to have taken place within the State for the purpose of this legislation. At present the legislation is silent on that matter, so I believe the amendment should be included.
As regards the definition of an Irish citizen, effectively what we mean is that we are extending the ambit of the Bill to persons who are not Irish nationals, as required by the framework decision, but who could be if they so choose. I recognise what the Deputies are saying about Mr. Bigley, for instance, as someone who could have claimed Irish citizenship in certain circumstances. A significant number of people are in a position to claim Irish citizenship and the last thing in the world they want to do is claim it. There are people in Northern Ireland, for instance, who are entitled under Irish law to be Irish citizens, but in their own mind they do not want to be citizens of this State. There is a difference between entitlement to be an Irish citizen and citizenship.
Since Article 9 of the framework decision requires jurisdiction to be established where the offender is a national, this is a point we must bear in mind. I draw the committee's attention to Article 9 of the framework decision. It states: "Each Member State shall take the necessary measures to establish its jurisdiction over the offences referred to in Articles 1 to 4 where ... the offender is one of its nationals or residents." I can easily see the intent of Deputy O'Keeffe's amendment. Section 6(2)(e) of the Bill refers to an act which “is directed against the State or Irish citizens”. However section 6(2)(c) refers to an act which “is committed by a person who is a citizen of Ireland or is resident in the State”. The amendment would extend criminal liability to the case of Mr. Ken Bigley on that basis. The matter is not as easy as one would think. There is a benign aspect to extending the measure to persons whom we might want to protect but there is a potentially malign aspect to it if we extend jurisdiction to people who do not want to have anything to do with us. The framework decision requires us to criminalise acts committed by our nationals. We would be in a slight difficulty if we tried to go beyond that.
The reference in amendment No. 3 to the definition of a ship by reference to the Mercantile Marine Act is a clear one. The ship registration regime in Ireland is under review by the Department of Communications, Marine and Natural Resources. That Department will create a new, modern register which would define, for example, "bare boat charters" which is exiguous control over ships to be placed on the register. The definition in the 1955 Act may have to be revisited in the near future. It is better to keep a clear definition of what is meant by an Irish ship. For instance, it may be a sensible thing to do to have a ship wholly owned by persons who are citizens of Ireland or an Irish body corporate which is not registered under the law of another country. For the time being, however, I want to have a clear definition of an Irish ship.
In amendment No. 4, Deputy Costello proposes to make it clear that an act committed on a fixed platform above the continental shelf of the State is deemed to have been committed in the State for the purposes of the Act. Deputy Costello may come back to me on Report Stage if I am wrong about this but I am advised that section 3 of the Continental Shelf Act 1968 applies Irish law to all offshore installations and the exclusion zones around them which are on the Irish continental shelf. If that is so, his amendment would be unnecessary.
With regard to the Irish citizenship aspect, I will not press that amendment. I would like to consider the points raised by the Minister. I will review the situation further on Report Stage.
With regard to the definition of a ship, I note from the Minister's response that there is a proposal to review the definition in the Mercantile Marine Act. This may change the definition of an Irish ship. Will that apply to this legislation if it is passed in the meantime?
If it were passed in the meantime, some provision would have to be made to accommodate it. However, my aim is to get this Bill through before that happens.
If this Bill is passed and the definition is subsequently changed, will the new definition automatically apply to the provisions of this Bill?
No, this legislation will have to be amended if that happens.
I have also considered this point and I will not press the amendment at this stage.
Considering what the Minister has said, I will introduce an amendment at a later stage.
Amendment, by leave, withdrawn.
Amendments Nos. 3 and 4 not moved.
Section 3 agreed to.
SECTION 4.
Amendments Nos. 5 and 14 are cognate and amendments Nos. 6 to 8, inclusive, are related. All may be discussed together.
I move amendment No. 5:
In page 8, paragraph (b)(ii), line 40, after “compelling” to insert “or inducing”.
This section deals with the definition of terrorist activity. It defines terrorism as an act committed with the intention of seriously intimidating a population or unduly compelling a government or international organisation to perform or abstain from performing an act. These are not theoretical points given our recent history and what is happening in the world today, which is such that our hearts go out to hostages.
Does the word "compelling" set too high a standard? I envisage a situation where a government might be induced to act in a particular way following the commission of a terrorist act. This may be considered a technical point but perhaps the Minister would consider it with a view to improving the Bill by lowering the bar in the case of a government which may be under pressure from a terrorist organisation.
I will consider what Deputy O'Keeffe said. However, the Bill makes clear that the term "compelling a Government" is taken directly from the framework decision. The effect of the amendment, which substitutes the word "inducing" for "compelling", would widen the scope of the crime to which the framework decision provisions would apply.
Deputy O'Keeffe is correct in saying the two words mean different things. The word "inducing" would give the section a wider meaning. However, the Human Rights Commission tells me I must be careful about extending the section to give it a wider meaning. The commission has raised objections which we will come to when we discuss amendments Nos. 6, 7 and 8. The commission sounds a warning bell about using this formulation at all.
In these circumstances I prefer to leave the section as narrow as possible at this stage. We can come back to it on Report Stage. I do not want to be accused of widening the scope of a section which is already the subject of criticism from the Human Rights Commission.
I am prepared not to press the amendment at this stage. I put it forward for discussion. Amendment No. 14 makes a similar point about setting too high a standard. I withdraw both amendments at this stage for further consideration.
Amendment No. 6 reads:
In page 8, paragraph (b)(ii), line 40, after “a” to insert “democratic”.
My amendments relate to the issue of the framework decision as presented and the wide scope for its interpretation. People involved in legitimate protests or other activities could be inadvertently caught in the trawl. The amendments I have tabled arise from concerns expressed about this matter by the Human Rights Commission. The first one seeks to insert a qualification concerning the Government on page 8, unduly compelling not just a government but a democratic government or an international organisation to perform or abstain from performing an act. As we well know, there are many undemocratic governments around the world. Currently, the UN is often the channel by which we intervene where a Government needs to be restrained from acting in a particular fashion and where action needs to be taken to that effect. If there is any justification for the wars in Iraq and Afghanistan there was certainly some undue compelling of a government in those cases. In that terminology, we could describe President Bush and all the activities there as coming well within the ambit of this legislation in its definition of terrorist activity.
We must be careful about the language we use. I always thought the major problem with the convention framework was that its definitions are too loose. In this case we have to tighten and curtail our definition so that the trawl will not be so wide that it defeats its intended purpose. There are many despotic and tyrannical governments that need a fairly sharp push to perform properly, but any legitimate act of rebellion, for example, would be regarded as a terrorist offence under this legislation. The world is full of instances in which despots were taken on and pressure was applied on them to change their ways. A fresh look at that section is required. That covers my amendments Nos. 6 and 7.
Amendment No. 8 proposes an additional subsection where we talk about seriously destabilising the political, constitutional, economic or social structures of the State or an international organisation. Part of the function of opposition is to seek to change political structures. What do we mean by destabilising political, constitutional, economic or social structures? There are many such structures that need to be radically overhauled and changed. The body politic, both in terms of politicians and political parties, as well as civil society, non-governmental organisations and trade unions, are constantly pressurising and taking fairly robust actions to change radically the type of structures that exist in a particular state. Amendment No. 8 seeks to insert the following wording in page 9, between lines 3 and 4:
provided only that actions taken in the course of industrial disputes or disputes concerning environmental issues, the use of natural resources or terms of trade, or actions involving damage to property by way of protest and that do not endanger life, shall not be regarded as terrorist offences;
This concerns the breadth of the definition of terrorist activity. Unless we make some effort to curtail it and define it more clearly, we will find ourselves in some difficulty. Both amendments reflect the concerns of the Human Rights Commission to tighten up the legislation.
The section concerns the definition of terrorist activity. It is an area about which there is not a good definition. If one looks at other UN conventions there is not an acceptable definition that transcends all the legislation. The UN policy working group on terrorism has been trying to come up with an accepted definition, yet it has not managed to work one out, other than agreeing that targeting of civilians randomly or selectively for the purpose of generating fear is included. That is the best they can come up with. This Bill labels political opposition as terrorism, as well as encompassing those actions that the international community and the majority of national communities would accept. Under this legislation, for instance, the likes of Mahatma Gandhi, could be labelled as a terrorist because he blocked major roads. He also wanted to force the British to leave India. In South Africa, the ANC would have been similarly regarded, even with the change suggested by Deputy Costello, as the South African Government was considered to be democratic for the white population.
I could list a wide range of conflict areas around the world, including East Timor before independence, where the definition included in this Bill would cover people involved in civil disobedience and other forms of non-violent protest. In fact, the attacks on hawk jets in, or bound for, East Timor would have been regarded as terrorist action, as would what occurred at Shannon Airport. We do not need to go down that road because we have enough extant legislation to cover criminal damage. We should be careful in having a broad definition. It is not just my view but that of the Human Rights Commission. It is also the view of the UN policy working group on terrorism, which has cautioned against labelling political opponents or adversaries as terrorists because it demonises them. In addition, such labelling can adversely affect legitimate activity after the fact.
We should either remove this section or amend it in order that we will have the tightest possible definition that can stand up in law. The definition should not contain concepts that are not fully defined and that we will end up having to be defined through Supreme Court cases in future. Some of the wording in the Bill's definitions is vague and open to different interpretations. We need to amend this section.
The Minister suggested that we should leave the definition in place for now and may amend it on Report Stage. However, the idea of Committee Stage is to deal with such matters and amend them. The Minister or someone else may or may not wish to amend them further on Report Stage. However, the amendment should be accepted now rather than coming in on Report Stage with 30 or 40 detailed amendments we could have dealt with now.
I found the Second Stage debate useful as it gave me considerable food for thought on this matter. In replying to it I said I would need to ponder the points raised. The framework decision is binding on the State, which is one of the problems with such decisions. We should never accept rushed framework decisions in any circumstances. Knee-jerk reactions are not appropriate. A good deal of thought is required.
As a matter of European law, we are obliged to implement the framework decision. Obviously, we must implement it in a way which accords with the treaties and as best we can in keeping with the Constitution. Theoretically, the obligation we have undertaken under the framework decision even overrides the Constitution. We must, therefore, be very careful in what we do in this case. The human rights commission has rightly stated this is one definition, which is by no means above criticism because of what it could apply to.
I do not accept the proposition that there is a simple solution to the dilemma in which we find ourselves. In trying to differentiate, on the one hand, between a regime we regard as tyrannical, resistance to which we therefore regard as a justified act of rebellion or freedom fighting and, on the other, a regime we regard as friendly and which we support in every possible way, it is almost impossible to think of a statutory definition into which one category of regime falls and the other does not. I say this conscious of Deputy Costello's belief that the insertion of the word "democratic" would solve the problem. However, that is not the case.
By one definition it is possible to have regimes which are democratic — it depends on what one means by "democratic" — but by another person's definition it would not be democratic. I will give an example. The republic generally referred to as North Korea refers to itself as the Democratic Republic of North Korea. Within its own ideology the Communist Party has created a dictatorship of the proletariat which would claim to be a democracy. Many Marxist guerrillas throughout the world are trying to establish dictatorships of the proletariat along Marxist-Leninist principles. In their own minds they are engaged in establishing democratic regimes. However, when they do, many of us here would say such a regime could not be called democratic. I use this as an example to balance what I will say next.
Many regimes are autocracies while many places are run as personal fiefdoms. Some are run in an entirely arbitrary way which is unacceptable to us. Others, by contrast to some countries that claim to be democratic in their constitutions, are liberal. The Kingdom of Morocco was not fully democratic in the parliamentary sense that we understand until recent times. While people may have criticisms of that regime, we regard it as friendly and cannot allow it to be the subject of terrorist acts. We do not want to allow an emirate in the Persian Gulf with which we have good relations to be a target of terrorism simply on the basis that it is not, by someone's definition of the term, democratic. Likewise, we have a difficulty that some regimes claim to be democracies when many of us would say they are not. While I could cite many other examples which occur to me, I do not want to put my foot in it by offending people. I want to make the point that there are differences between regimes and that the word "democratic" is not a term of art which would separate the sheep from the goats effectively.
I have pondered this matter for some time and it has been debated within mine and between Departments. While I hope Deputy Ó Snodaigh does not misunderstand me, I hope to introduce an amendment on Report Stage to vest in the Attorney General a consent function analogous to his function under the Official Secrets Act where his consent is necessary for the Director of Public Prosecutions to act and also analogous in a slightly different way to his function as prosecutor in international fishing cases where in respect of some offences he is the prosecutor and the Director of Public Prosecutions is not precisely because of the international dimension to these offences which it was always thought would have to be exercised having regard to some degree to — I use the word advisedly with a small "p" — political policy. We have fisheries laws and the decision on whether to seize boats and prosecute in certain circumstances could have all sorts of implications for us. The Attorney General is the prosecutor in such cases. Likewise, under the Official Secrets Act, the consent of the Attorney General is required for the Director of Public Prosecutions to prosecute, for example, a newspaper for publishing a leaked Government document.
Deputies might believe this is a form of clutch mechanism in order that there is not a direct relationship between the law being one thing and a result always automatically emerging on the other side — perhaps this is the case. We spent some time studying the Second Stage criticisms of this section and, by extension, the criticism of the definition which is binding on us under the framework decision. Our best approach is to make consent of the Attorney General a prerequisite to the continuation of a prosecution against any person in the courts.
The term "democratic" would not add much of consequence and would just lead to arguments. A Palestinian living in the territory under the de facto control of Israel would doubtless argue he was not living in a democracy as far as he was concerned. However, an Israeli would counter that Israel was a democratic state. Between these two propositions we would have a difficulty if we simply used the term “democratic”. A person living in Saudi Arabia might well make the argument that it was not a democratic state. This does not mean the State should regard any terrorist conspiracy unleashed against Saudi Arabia from Irish soil or by Irish citizens as a legitimate act. The term “democratic” would not fit the bill.
Some members around this table would argue whether Cuba was a democracy in the way we accept the term. On the other hand, I do not believe anybody believes it is legitimate for Irish citizens to manufacture bombs or organise terrorist offences in Havana, regardless of what they might think of the communist regime. This is not easy to deal with.
Our intention on Committee Stage of tendering an amendment to introduce a role for the Attorney General is probably the only way through this minefield. I have thought of different formulations along the lines suggested by Deputy Costello — I thank him for his suggestions — but it is not that easy to do. One also has to bear in mind that the framework decision states it does not have the effect of altering the obligation to respect fundamental rights and legal principles as established in Article 6 of the treaty on European union. The question that has to be asked is, if one was organising resistance against manifestly despotic tyranny somewhere in the world, would paragraph (2) of the framework decision afford one a defence? That is a question on which the European Court of Justice will have to decide on another occasion. In the meantime we have to try to bring forward a legal definition which will be acceptable for the purposes of this legislation.
I acknowledge, as Deputy Ó Snodaigh said, that this is an unsatisfactory definition of terrorism. It is not one I would have put on paper, although in some respects it is not as bad as some of its critics say. For instance, the motives are set out in Article 1, paragraph (1):
(a) attacks upon a person's life which may cause death;
(b) attacks upon the physical integrity of a person [I do not know what exactly this means — it could mean throwing eggs at a person or something much more serious such as poisoning a person];
(c) kidnapping or hostage taking;
(c) causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system [this refers to a person who could hack into a computer and immobilise it with a virus];
(d) seizure of aircraft, ships or other means of public or goods transport...
What does seizure mean in this context? Does it simply mean occupying a boat or something else?
The Luas.
I have to concede it is an extraordinarily wide definition. That is what can happen when one attempts to forumulate a definition in the immediate aftermath of a crisis. If French farmers seize a train to force the French Government to withdraw or include subsidies, we do not want a situation where this is classified as an act of terrorism in Irish law. The better way to deal with this is to give this new role that I envisage to the Attorney General. In that way our democratic values will have an input via the Attorney General in order that we can distinguish between the seizure of a TGV in France by protesting French farmers and the hijacking of an aircraft by vicious people.
I am not agreeable to amendment No. 8 in the name of Deputy Costello which seeks to insert the following:
provided only that actions taken in the course of industrial disputes or disputes concerning environmental issues, the use of natural resources or terms of trade, or actions involving damage to property by way of protest and that do not endanger life, shall not be regarded as terrorist offences;
That amendment would give animal rights activists the right to burn down empty buildings or destroy trains in a railway station as long as there was no danger to life. I would not like to go that far because it could amount to terrorism if animal rights activists decided to destroy a major property.
This is a difficult issue and if Deputies opposite have some easy life belt to throw to me, other than the role envisaged for the Attorney General, bearing in mind that we are obliged to comply with the framework directive, I would like to hear it. I am not being high-handed in saying it took me some time to sort out within Government how we would approach this matter. After much thought and reflection, the Attorney General route was the way we proposed to go.
I am sure members opposite have many verbal blows to throw at the Minister but there is no way they can get in within the four remaining minutes. There is a window from 1.15 p.m. to 2.15 p.m. if they are prepared to accept it.
I have to take parliamentary questions later.
At 3 p.m.
Yes.
The other option is to continue but there may be a problem. Shall we resume at 1.15 p.m.?
If we resume at 2.15 p.m., there will be parliamentary questions at 2.30 p.m.
We will be back from 5.15 p.m. until 6.15 p.m.
Sitting suspended at 10.30 a.m. and resumed at 1.15 p.m.
Deputy O'Keeffe was contributing on section 4, amendments Nos. 5 to 8, inclusive, and 14.
For once I found myself in agreement with the Minister. We were philosophising on the issue of democracy. I can remember visiting East Berlin and passing through the Brandenburg Gate or Checkpoint Charlie to see the "glorious" German Democratic Republic. The contrast with western Europe was stark. I remember that first visit which would convince anyone to wonder about the use of the word "democratic" in the title of any nation state.
Would that apply to Ohio?
I do not think it looks too democratic; given the trends, it is more republican.
The other factor that must be borne in mind is that the concept of what constitutes a democracy changes with time. Going back to one of the original democratic societies in Athens at the time of Aristotle, one was talking about a society which it reckoned was a full democracy, yet it excluded slaves and resident aliens, including Aristotle.
Do not give the Minister ideas.
It also excluded women. I agree that "democracy" is a term or concept capable of attracting different views and interpretations. It is also capable of development.
The Minister suggested establishing a filtering mechanism for the implementation of the framework decision. It is an intriguing suggestion that may involve a nimble approach around a difficult problem. I recognise that there is a problem. One slight worry I have is whether it conflicts with the idea of having a framework decision which is to approximate in all member states the implementation of the decisions taken. If we establish this filtering mechanism, will it run counter to the European approach? It might be of greater concern to me than to the Minister but it is an issue that needs to be thought about. I would like to reflect on the views offered in order to consider the matter between now and Report Stage.
As regards the Minister's suggestion of seeking the Attorney General's consent, it would be helpful if he could circulate the details of the proposed amendment well in advance of Report Stage in order that we would have ample opportunity of studying it.
I am afraid there is no coalition on this point with our erstwhile or future coalitionists.
We will get these issues out of the way.
The Mullingar accord is leaking.
It is under severe threat, almost a terrorist threat. The Minister has recognised the problem we have articulated — that the definition is too wide — and is proposing a mechanism to put in place a structure to ensure some of the areas would be subject to the Attorney General's consent before any offence would be prosecuted.
I wish to address my two amendments concerning the use of the word "democratic" and the other areas covered by amendment No. 8. If the wording is left as it stands in section 4(b)(ii), every government will be pooled together as though they were intrinsically the same. No distinction is made between governments. The Minister is taking it as though there is one definition of “government” in the phrase “unduly compelling a government” and that all governments are the same. There is no distinction between a democratic accountable government or an undemocratic unaccountable one. The Minister is effectively providing succour for every despot and tyrant, not that they would seek a video of our discussions. The Minister says he has a problem with the word “democratic” and I can see the problem because there are different forms of government which term themselves democratic, whereas many of us say that is a ludicrous description. Nevertheless, democracy as such carries certain principles of equality and accountability.
I am not pushed as to what exact epithet the Minister inserts in the Bill to provide a tighter and more pertinent description, if this can be done. The human rights commission used the term "democratic and accountable". Some of the governments to which Deputy O'Keeffe referred are not accountable. Perhaps, therefore, the use of the word "accountable" would be one way of dealing with the matter. By leaving the terminology in its current stark and blunt format, with no attempt to confine it to legitimate governments — we all know what we are talking about — the Minister is erring in the other direction. He does not wish to err in one direction by saying it is difficult to define the term "governments" but if he inserts no definition, he will be leaving it so wide that all governments will be treated as though they carry the same basic principles of legitimacy. As he has a problem one way or the other, I hope he will re-examine the section and will have a word with the human rights commission about the matter.
I presume other countries also have been struggling with this framework decision. How many have transposed it into legislation? Ireland is hardly the first to do so. Nordic countries will have a difficulty throwing the net so wide that no distinction is made between a democratic and an undemocratic government, a legitimate or illegitimate government or a despot and an elected government. Perhaps the elected government aspect could be examined. More thought should be put into improving this provision.
Amendment No. 8 relates to paragraph (b)(iii). A range of activities are engaged in by citizens such as industrial disputes, protests about environmental issues, protection of natural resources and terms of trade and actions that could result in damage to property. They are making legitimate protests in a democracy which in most cases is regarded as proper and right. Where an individual or group goes beyond what is acceptable in pursuit of the objectives, legislation is in place to determine what is appropriate. Why should such people be described as “terrorists” if legislation is in place to cover damage to property, vehicles and so on during anti-fox hunting, anti-globalisation and environmental protests or industrial disputes? Every democracy has legislation in place to deal with such protests.
The Minister has gone too far by branding people who engage in such protests as terrorists. This is unnecessary and dangerous. "Terrorist" is a heavy description to use about people who engage in such activities. Legislation is in place to deal with protests and it should be imposed rather than making provisions in this Bill. My amendment relates to civic society which seeks to change governments and alter their views. Sometimes people may go a step too far but they are not terrorists. By calling them terrorists, their citizenship is under attack because it is their constitutional right to protest, assemble and associate together to seek to change the government within certain parameters.
The Minister stated he had made a commitment to pass the legislation, as drafted. However, if a caveat is inserted whereby the Attorney General will have the ultimate authority regarding which offences will be prosecuted and whether it will be amended. Why can other amendments not be made? The preamble to the framework decision states, "Nothing in this Framework Decision may be interpreted as being intended to reduce or restrict fundamental rights or freedoms such as the right to strike, freedom of assembly or association or of expression, including the right of everyone to form and to join a trade union with others for the protection of his or her interests and the related right to demonstrate". The framework document recognises all these rights should not be infringed. Therefore, why make provisions to infringe them in the legislation? The document is badly drafted and contradictory while many of its provisions are ill-defined. I do not understand how the Minister can transpose it to the letter when it contains so many contradictions.
I concur with Deputy O'Snodaigh that is not good enough to have failed to tabled the major amendment relating to the Attorney General's role on Committee Stage where it could be debated properly. We may not reach the amendment on Report Stage or, if we do, the debate may be brief. The Minister has tabled a number of amendments and should have tabled this amendment because it is critical to the legislation.
I give an undertaking that I will not object to recommital on Report Stage.
I welcome the Minister's undertaking. His proposal is that he will vest in the Attorney General a consent function regarding offences covered by the legislation. Does he intend that the Attorney General should have the exclusive right to prosecute as well as to give consent? Will he exercise the right that formally lies with the Director of Public Prosecutions? However, the Attorney General both consents to and prosecutes a number of offences such as those relating to fisheries. The legislation would be strengthened if the Attorney General performed both functions. It would mean he would make the decision which would be transmitted to the Director of Public Prosecutions who, in turn, would carry out the prosecution. Perhaps the Minister will address this.
The definition of terrorist activity and how it will be implemented are the key elements of the legislation. It would ill behove us if we were to put legislation on the Statute Book that could be used for a purpose we did not intend. The legislation dates from 2001 when there was a different culture. People have had more time to reflect on the issues involved and the framework decision was put together out of fear that terrorism abounded everywhere and the European Union had to protect itself. This is very much reflected in the ill-defined text of the document. It would have been better if the document had been redrafted by the bunch of academics involved, whom I would not regard as law makers or practitioners. They should have started from scratch again.
I am interested in what the Minister said about the Attorney General. I have difficulty with it because it would involve just this jurisdiction and there are now 24 other jurisdictions. The framework decision is a common cross-European Union proposal. This would mean a different way of dealing with offences in another jurisdiction, which would affect Irish citizens. The Minister referred to the TGV. If an Irish citizen was a member of that farmers' organisation, and took hold of the TGV to make a protest, he or she would not come under the Irish Attorney General's jurisdiction; he or she would come under French jurisdiction. The Minister admitted there are flaws because it was a rushed decision. It would be interesting to know whether the officials who gave advice to proceed with the framework decision are still in the Department. Was the Attorney General consulted on whether Ireland should sign up to the framework decision which included such a flawed definition? If we proceed with the document, we will continue with a mistake which was made initially. Even though people have said that we must endorse the framework decision, Ireland should not proceed until the document is re-examined, clarified or changed so that all EU states adopt a similar definition or caveat to include the Attorney General's consent.
I will be interested to hear how this might work. The Minister is trying to be constructive and it would be better if he tightened up the definition. The definition does not currently require terrorist actions to be violent, target civilians or seek to instil fear. One could take over an international football match and demand it be postponed because one of the countries involved might be a human rights abuser. Someone occupying the centre of Lansdowne Road during an international soccer match might not be a terrorist, but might be making a political statement. Under this legislation, however, he or she would be defined as a terrorist. Would Fr. Horan, who tried to interrupt an Olympic marathon race, be defined as a terrorist under the legislation? He may not be of sound mind, but he is not a terrorist. The framework decision states that people have a right of association and freedom of expression, but it does not refer to the freedom of political action.
As Deputy Costello said, we already have legislation to deal with actions where damage is caused or there is interference with events. We are in compliance with the spirit of the framework decision. We have the Criminal Damages Act and the Offences Against the State Act, therefore, we do not need new legislation or broader definitions. We go beyond the framework decision in the legislation. Other members and I have argued that the Minister goes beyond what was originally intended in the framework decision.
We should stand up to Europe in this instance and say there are major problems with the document. As the definition is too vague and too broad, we should re-examine that section in order not to criminalise or dehumanise people involved in anti-globalisation and WTO protests and so on. The legislation would immediately label these people as terrorists, despite the fact that they are involved in legitimate political protests. The intention of those who marched against the WTO talks was to prevent them taking place. These people would be labelled "terrorists" under the legislation.
I am grateful to members for their views on the issue. The text of the framework decision poses a dilemma for legislators who are obliged to uphold the European Union treaties. It may be worthwhile calling to members' attention the text of article 34.2 of the European Union treaty dealing with the framework decision. It states that the Council can adopt framework decisions for the purpose of approximating the laws and regulations of the member states. Framework decisions shall be binding upon the member states as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not involve direct effect. We are not bound to be absolutely religious in following the wording of the framework decision in transposing it into national law. On the other hand, we must substantially give effect to it.
Apart from the question of dealing with the Attorney General, which may be necessary to distinguish between some future scenario in which acts of resistance against a tyrannical regime of some outworking in Ireland and other cases, it may be that another amendment could be tabled to the section to give the term "terrorist activity" a narrower scope. I could imagine in that context that the definition "terrorist activity" might mean a terrorist act that is committed inside or outside the State. If the word "terrorist" is included, a court would have to examine each act to see, even in this context, whether seizure of the TGV by French farmers is a terrorist act or something which lies outside the ordinary meaning of the term as far as Irish and European people are concerned. I will re-examine this provision.
Deputy Costello referred to democracy and accountability?
Has the Minister a problem with that?
I am quite happy with the terms. Many States are run as fiefdoms of one kind or another. We get on quite well with some of them. Ireland has friendly relations with the United Arab Emirates in the Arabian Gulf. I visited there to seek votes in a UN context. I do not want to say those countries, merely because they do not have democratic and what we might call accountable regimes fall, ipso facto, into the category of legitimate targets for terrorism. I do not want to be unduly provocative but a couple of states in the world are run by parties which claim to act in the interest of the people but are wholly unwilling to allow any opposition. If one can call them democracies, that is fine. There are states that do not allow freedom of political association and insist on the dictatorship of the proletariat and on channelling all efforts into one party. Is a one party state, by definition, democratic? This is a question we must ask ourselves.
How would one classify Mr. Gadaffi at present? He had an interest in this country at one stage.
I am not going to venture any further views on the matter. From the Vatican across the world there is a series of sovereign states that do not have democratic assemblies, in the Irish sense of the word, in control of them.
That is an interesting point.
That is a conundrum for us.
I will work harder on this issue. I am not unmindful of the issue raised. However, there is no point in my saying I am happy with the original text. Perhaps the solution is to take a very liberal view of article 34.2 of the EU treaty that says it is open to us to decide the form and methods by which the result sought by the framework decision is to be achieved. We may take another cut at the whole thing and insert a section that makes it clear that it must be a terrorist offence, in the ordinarily accepted meaning of the term, and see if anyone in the EU Commission objects to that approach. That might be the way to do it.
I will not continue the debate any longer.
What other countries have gone through this process and have they experienced difficulties with the definition?
I will make available to members of the committee the text of how the British parliament dealt with this issue. They have a common law system such as ours. I understand they approached the question simply by saying courts should take these matters into account when sentencing. They did not go deeply into the whole issue. That approach may have something to commend it and we may learn something from it.
Amendment, by leave, withdrawn.
Amendments Nos. 6 to 8, inclusive, not moved.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."
Section 5 deals with terrorist groups that engage, in or outside the State, in terrorist activity and are unlawful organisations. How many of these unlawful organisations do we currently have? Is the list of organisations that are unlawful for the purposes of the Offences against the State Acts available?
There are unlawful organisations that are proscribed under statutory instruments made under the Offences against the State Acts. One is the IRA——
And the CIRA?
No, they are regarded as one organisation.
What about the provisional IRA?
They are all the one. They all claim to be the one.
They are just different parts of the one organisation.
That is what they say.
The IRA is an unlawful organisation. What is the other one?
The INLA is the other one.
I thank the Minister. I asked the question purely for information purposes.
The wording here is vague. The section gives effect to what is already in existence under the Offences against the State Acts and broadens it out beyond groups that are listed. Section 5 defines a terrorist group as one that engages in, promotes, encourages or advocates the commission of a terrorist activity. What constitutes advocacy in this context? Are the courts competent to make such a decision? Unless we come up with a proper definition of terrorist activity the problem that arises in section 4 continues in this section. An anti-globalisation group, for example, which advocated a mass protest in another jurisdiction would become a terrorist group.
I will be looking at this issue at a later stage and I hope to contribute to an amendment of this section in order to make more sense of it or to bring it into line with the Offences against the State Acts. That Act currently allows a superintendent of the Garda to present evidence that need not be disclosed to the defence. If that is to be the basis of future cases against a person charged with terrorist activity we should not go down that road.
Various organisations, including the Irish Council for Civil Liberties and the Human Rights Commission, have voiced concerns about some of the powers of the Offences against the State Acts and wish to see those Acts amended. This Bill extends those powers in an international field.
Question put and agreed to.
SECTION 6.
I move amendment No. 9:
In page 10, subsection (3), line 21, after "committed" to insert "outside the State".
Parliamentary counsel suggested this amendment in order to align the wording of section 6(3) with the wording of similar provisions in other sections of the Bill. It enables effect to be given to the requirement under Article 9.4 of the framework decision that member states take jurisdiction in cases where the member state has refused to extradite the person concerned to another member state or to a third country. The Roman phrase for this in extradition law is aut dedere aut judicare, either extradite or prosecute.
The amendment aligns the wording of section 6(3) with the wording of similar provisions in sections 9(4), 10(5) and 11(4) of the Bill. I believe it improves the Bill.
Amendment agreed to.
Question proposed: "That section 6, as amended, stand part of the Bill."
We could discuss this legislation forever. Once we accept the definition of terrorist activity everything else flows from that. Section 6 states that a person is guilty of an offence subject to various other subsections. Section 6 states when a person is guilty of an offence. It might help if the Minister's suggested term "a terrorist offence" was included here. The section states a person is guilty of an offence if he or she "engages in a terrorist activity" which implements everything for which the definition provides. A person is also guilty if he or she "attempts to engage in a terrorist activity" or "makes a threat to engage in a terrorist activity". At Hallowe'en one could have all sorts of threats to engage in terrorist activities, with fireworks etc.
This section appears to leave matters open, particularly from a globalisation viewpoint. For example, there is an ongoing bitter dispute here and in Britain with regard to hunting and this could transfer across borders, both national and international. There is also a bitter dispute in the area of genetically modified crops. That and the worldwide anti-globalisation protest are areas that could come under the banner of "terrorist" activity as defined here. Such activities are directed towards changing the policies of a government, often democratic governments.
What exactly do the words "make a threat to engage in a terrorist activity" mean? What sort of a threat are we talking about and to whom? If two of us here were to say we propose to do whatever it takes to remove the Government, would that constitute a terrorist type activity? The wording of the section is too general and wide in its application and I urge the Minister to have another look at it.
If we were to change the definition of "terrorist activity" to include the phrase "means a terrorist act that is committed inside or outside the State" and so on, it would not be necessary to change section 6 also to deal with Senator Costello's proposal. If it were inserted on page eight it would not be necessary to insert it on page nine also.
That is the point and it shows the benefit of including it earlier.
I am concerned about a number of provisions in the Bill. Similar to Deputy Costello, I am concerned by the wording. In section 6 (1) (a) (i), (ii) and (iii) the wording is too vague. The words “makes a threat to engage in a terrorist activity” are vague. Where is the threat to be made? Is it a threat from one individual to another? The section is too vague and broad. Again, the words “attempts to engage in a terrorist activity” are vague. Because of the huge penalties involved, we should be more specific in our wording of this type of legislation.
My other main concern is section 6subsection (1) which deals with terrorist offences. We should not exclude the activities of armed forces “insofar as these activities are covered by international humanitarian law”. If countries had not signed up to the International Criminal Court or if, for instance, the activities concerned were part of the official duties of armed forces, this provision would not be sufficient. We could, for instance, have a head of state involved in terrorist activity while on official business, especially until the International Criminal Court Bill is passed into law. It has not yet been cleared by all states and does not look likely to be passed by many because of the attitude of the United States in the bilateral agreements it is trying to enforce. We need to be careful in this regard because the provision also appears in Part 3, section 11, which again refers to the exclusion of armed forces from the legislation.
My most worrying concern relates to section 6 (5) where the burden of proof is shifted and "the accused person shall be presumed" guilty, basically, unless the court is satisfied to the contrary. Usually a person is presumed innocent until the court finds against him or her. Both the Irish Council for Civil Liberties and the Human Rights Commission had major concerns about this and felt there was a shift in the burden of proof. Perhaps that is a reflection of the Offences Against the State Act and the emergency powers that exist here.
As I said at the outset of discussions on this, if these are emergency powers, they should be temporary. The burden of proof in this jurisdiction should remain with the prosecutor rather than presuming the accused is guilty until he or she can prove otherwise. This applies especially when dealing with international cases where somebody might not have access to much of the material that could prove otherwise, because in such cases individuals would be up against the State apparatus. This is true also in regard to where the activity has been declared to have occurred, where it was intended to occur or where somebody thought of it. I am concerned in this regard.
I will propose amendments on Report Stage to address the issues I have raised and one or two others in relation to section 6. I want to ensure this section does not go beyond what is normally expected in our courts and from our courts system.
On that last point, the presumption with regard to intent arises only after the prosecution has proved the commission, or attempted commission, of the offence. Therefore, I am not sure I would agree with Deputy Ó Snodaigh in that regard.
I want to raise the issue of the possible introduction of the words "terrorist act" in section 4, which would have a particular application in section 6. We seem to have different definitions for "terrorist activity", "terrorist groups", "terrorist-linked activity" and so on. I wish to add a caution. If it is intended to introduce a reference to a "terrorist act", will we have to specify what constitutes a "terrorist act"? I wonder if what appeared at first sight to resolve the problem highlighted by Deputy Costello will have the contrary effect. This needs reflection rather than it being automatically accepted.
I do not like suggesting amendments on the hoof. However, what I have in mind is that if we include the phrase "terrorist activity means a terrorist act that is committed ...", we could consider including later that, for the purpose of that definition, it is a defence to show it is not in the ordinary and natural meaning of the term, or generally accepted in the meaning of the term, a terrorist offence, or something like that. We could include a negative definition of some kind. I throw that out as a possibility because what we must do is confine this immensely broad net to narrower territory.
With regard to the points made by Deputy Ó Snodaigh, it is not unprecedented for the legislature to include a presumption with regard to intent. For instance, the definition of murder was changed in 1964, but prior to that Act if a person robbed a bank and ran down a little old lady with the getaway car and killed her, that person would be found guilty of murder because a manslaughter had been committed in the commission of a felony. There was a provision called constructive malice. That was the law prior to the 1964 Act which abolished the death penalty for non-capital murder. It was provided at the time that one committed murder if one intended by one's action to kill or cause serious bodily harm to a person. A person charged with murder was presumed, until the contrary was shown, to have intended the probable and natural consequences of his act. One could not just say, "I just let off a gun while pointing it at X or Y but I had no intention. I do not know what I was thinking at the time." There was a presumption against you that when you discharge a firearm point blank at somebody, that you will injure them. You could displace that presumption. The interesting point is that the courts have held, in respect of that presumption of intention, that once it becomes an issue, the presumption does not mean that the accused must then prove that he is innocent. The courts have interpreted that definition of murder as requiring the State to prove beyond reasonable doubt once the argument is raised. The onus of proof beyond reasonable doubt reverts to the State. It is not the accused on his own undertaking an onus of proof. The State still must prove the ingredients of the offence beyond reasonable doubt. The presumption is not a presumption of guilt but merely forcing the accused person to put into play such evidence as is at his disposal in respect of the issue of intent.
We must suspend this meeting until 5.15 p.m. as another committee is meeting here at 2.30 p.m. It is also intended to meet tomorrow morning at 9.30 a.m. Is that agreed? We will start with discussion of section 7, amendment No. 10 at 5.15 p.m.
Have we formally adopted section 6?
We have already agreed it.
The Minister did not answer on the definition of making a threat to engage in terrorist activity. He expressed some concern with the reference to the physical integrity of persons in the same section.
That can be picked up later.
Question put and agreed to.
Sitting suspended at 2.15 p.m. and resumed at 5.20 p.m.
SECTION 7.
Amendment No. 10. Amendments Nos. 11, 12 and 13 are related. We will discuss the four amendments together.
I move amendment No. 10:
In page 11, subsection (1) (a), lines 36 to 38, to delete all words from and including “offence” in line 36 down to and including “Schedule 2,” in line 38 and substitute the following:
"corresponding offence specified in Schedule 2 is one for which”.
The EU decision on combating terrorism requires us to impose higher penalties for a range of offences where there is a terrorist intent save where the sentences capable of being imposed are already the maximum possible sentences on a national law. This is an aspect of European law in which there is significant divergence between common law and civil law approaches to sentencing. When one explains to a classical European civil lawyer that robbery in Ireland could constitute the most minor mugging or the robbery of a bank and the maximum sentence is life imprisonment they find it difficult to understand that we have such a broad sentencing menu open to our Judiciary for the same generic offence.
The framework decision is based on the proposition that a tightly controlled series of maximum sentences in Europe should be increased in relation to terrorism offences. This is the philosophy behind the decision. In Ireland most of these offences carry heavy penalties maxima which in most cases the Judiciary operates well.
Currently, section 7 has the effect of doubling some penalties with even higher increases for corresponding offences carrying a maximum penalty of up to five years. It was put to us, including by the Human Rights Commission, that this could be regarded as excessive. I propose to provide for a new lower level of increased penalties. The fact that I am permitted to do so within the framework decision indicates the considerable value of the decision.
Given that Irish law generally provides for high penalties for offences, the smaller increases are merited. Thus, the amendment proposes that where the corresponding offences in the Schedule carry a term of imprisonment of ten years or more, the maximum penalty would be increased by two years where there was a terrorist intent. Where the current maximum penalties for the corresponding offences are less than ten years, the maximum penalty would be increased by one year where there was terrorist intent. The increase is, therefore, proportionate in that it adds one year for maximum terms of ten years or less and two years for sentences of ten years or more. When the current maximum penalties for the corresponding offences are less than ten years, the maximum penalty will be increased by one year where there is terrorist intent. This enables us to meet the requirements of Article 5.3 of the framework decision. I have proposed these increases to accommodate the Human Rights Commission and make the Bill less draconian.
We are touching on an area on which in broad terms we have not clarified our thinking since the 1996 report of the Law Reform Commission on the issue of sentencing. From time to time, I note a draconian mood in the Minister's announcements, including references to mandatory penalties. In some senses we are trying to address this issue using a continental system of draconian penalties in circumstances in which particular intent is involved. We are reacting to circumstances. Generally, we operate by fixing maximum penalties and leaving discretion to the Judiciary, an approach with which I agree. While have some mandatory penalties, they often have escape hatches which are generally used by the Judiciary, particularly as regards drugs offences.
We do not have sentencing guidelines in place such as those in operation in the United Kingdom and the United States. Views on this matter are divided into those in favour of statutory guidelines and those in favour of non-statutory guidelines. We are, to some degree, addressing this issue without having clarified our thinking on sentencing. We are importing a continental concept and trying to establish domestic law taking into account the principles behind that concept.
While I abhor terrorist offences of all kinds, one must take a sensible approach to dealing with them. There is no point in having, as originally provided for in the Bill, 20 year sentences for offences which might not be considered abhorrent. I understand the Minister's approach but we must straighten out our thinking on sentencing generally because clarification is necessary.
Subject to the possibility of making further amendments on Report Stage, I am prepared to accept the amendments because they constitute an improvement on the original draft. We do not have at our disposal a comprehensive response to this problem, nor will we have one until such time as we have undertaken a comprehensive reappraisal of our position on sentencing.
Amendment agreed to.
I move amendment No. 11:
In page 11, subsection (1)(b), lines 39 to 41, to delete all words from and including “offence” in line 39 down to and including “2,” in line 41 and substitute the following:
"corresponding offence specified in Schedule 2 is one for which”.
Amendment agreed to.
I move amendment No. 12:
In page 11, subsection (1)(c), lines 42 to 45, to delete all words from and including “20” in line 42 down to and including “years;” in line 45 and substitute the following:
"2 years more than the maximum term of imprisonment for the corresponding offence specified in Schedule 2, if that corresponding offence is one for which a person of full capacity and not previously convicted may be sentenced to a maximum term of 10 or more years of imprisonment;”.
Amendment agreed to.
I move amendment No. 13:
In page 12, subsection (1)(d), lines 1 to 7, to delete all words from and including “15” in line 1 down to and including “case.” in line 7 and substitute the following:
"1 year more than the maximum term of imprisonment for the corresponding offence specified in Schedule 2, if that corresponding offence is one for which a person of full capacity and not previously convicted may be sentenced to a maximum term of less than 10 years of imprisonment;”.
Amendment agreed to.
Section 7, as amended, agreed to.
Section 8 agreed to.
SECTION 9.
Amendment No. 14 not moved.
I move amendment No. 15:
In page 13, subsection (5), line 17, after "constitutes" to insert "an offence involving".
I move the amendment on behalf of Deputy Costello.
I am trying to work out Deputy Costello's precise intention. I thank him for suggesting this amendment. The issue is whether section 9(5) is sufficiently defined to exclude acts of hostage taking covered by the Geneva Conventions of 1949 and the protocols to those conventions. I will examine the matter in more detail in consultation with the Parliamentary Counsel. If Deputy Moynihan-Cronin were to agree to withdraw the amendment, I would undertake to deal with the issue either by accepting the amendment on Report Stage or, if appropriate, tabling another amendment to achieve the same result.
Amendment, by leave, withdrawn.
Section 9 agreed to.
Section 10 agreed to.
SECTION 11.
I move amendment No. 16:
In page 16, between lines 13 and 14, to insert the following:
"(b) a person who, at the time of the commission of the offence is engaged in providing flood, famine, drought, war, or other humanitarian crisis relief,”.
The amendment raises the issue as to whether we can provide some form of protected status for aid workers. This is a topical issue in light of recent abductions. Margaret Hassan, for example, would certainly fit into the category defined in the amendment. The reason for the amendment is that aid workers do not appear to have the protected status available under international conventions for internationally protected persons. Can Ireland take the lead from the point of view of trying to encourage either the development of a new international convention or an extension of the existing one so that protection would be available to aid workers in the same way as protection is extended to what are known as internationally protected persons? I do not for a moment suggest people such as the kidnappers of Margaret Hassan would be immediately affected by the existence of such an international convention. The hijacking of planes was common some years ago but, as a result of international co-operative arrangements and international conventions, ultimately this issue was addressed. I accept security modifications were also put in place in addition to the agreements.
How can Ireland take a lead in the context of aid workers? We have a long tradition of aid workers going back to our missionary days although the majority of aid workers are now lay people. We have a direct interest in ensuring those who are involved in aid operations around the world would have as much protection as possible. That is the background to my proposal to extend in section 11 protection to persons who, at the time of the commission of an offence, are engaged in providing flood, famine, drought, war or other humanitarian or crisis relief.
I accept entirely that under international law, states are obliged to protect the rights of all civilians on their territory, including aid workers even in times of war or armed conflict. A number of conventions are referred to in the context of the Bill, including the 1973 and 1979 conventions. The convention adopted in 1973 by the UN relates to offences against internationally protected persons. The 1979 convention is against the taking of hostages. It appears we never acceded to those conventions let alone ratified them. Another convention from 1997 is the International Convention for the Suppression of Terrorist Bombings, which is the only one we appear to have signed.
One further convention to which I wish to refer is the 1994 Convention on the Safety of UN and Associated Personnel to which we acceded in March 2002. It is generally accepted that this particular convention has a number of weaknesses. I am aware it is currently before the Sixth Committee, the international law committee of the UN.
I raise this issue for a variety of reasons. Ireland should be prepared to take a lead role in trying to develop international law and, in particular, UN conventions where they are required. It would be appropriate that an approach would be spearheaded by Ireland with a view to trying to get UN-protected status for those involved in aid work. That is my purpose in tabling this amendment.
I am not sure if the Minister can accept the amendment in the context of the Bill but I hope he will do so, or at least give consideration to it. More importantly, I am keen to get an indication from him that the thinking I put forward would find a resonance in Government and that there could be a joint and common approach from Ireland in an effort to achieve the objective which I outlined.
I see exactly why it occurs to Deputy O'Keeffe that this category of people requires protection. As he will appreciate, section 9 already provides hostage taking is a generic offence which applies to everybody. The real question is if we should try and stretch the notion of internationally protected persons on a unilateral basis and tack on to a recognised international law concept a group of people who are not currently recognised by international law as having that status.
Whereas I am very well disposed towards the principle of what the Deputy is trying to do, I do not want to muddy the waters by unilaterally adding a new category of people to our implementing legislation for an international convention. Without slamming the door on the Deputy's idea, what I wish to do is raise the issue with the Department of Foreign Affairs. It may be that a new convention is needed and that it would see value in some variant of what the Deputy suggests in this legislation. It may be the case that it would increase the Department's bargaining power with other countries to suggest that special protection for this category of people would be a general provision. I would prefer to go to the Department of Foreign Affairs and test the temperature there to see if it believes this is a good or bad idea before accepting the amendment.
I am glad the Minister responded in that fashion because I believe we can carve out a role internationally and at the same time do something to provide some form of additional protection for aid workers if we progress this issue. From previous contacts I have had with the Department of Foreign Affairs on this issue in recent times I gather the Department accepts there are a number of weaknesses in the legal regime of the 1994 convention and, in particular, the narrow definition accorded to the term "UN operation", which prevents the application of the convention to non-peacekeeping operations without a declaration of exceptional risk by the General Assembly or the Security Council.
I believe there is some question of discussions on this issue before the international law committee of the UN General Assembly. The Sixth Committee will meet again in the spring and what I hope to do is stimulate a very strong approach from Ireland that would focus on two things, namely, the narrow definition of the UN operation but also an approach which would be designed to extend the entire operation of the convention to cover aid workers generally who might not necessarily be involved in UN operations.
I withdraw the amendment on the basis that the Minister will look at the issue which I will raise again, and in the hope this role might be adopted by the Government in the spring.
Amendment, by leave, withdrawn.
Section 11 agreed to.
SECTION 12.
Amendments Nos. 17 and 38 are related and will be discussed together by agreement.
I move amendment No. 17:
In page 16, subsection (1), lines 41 and 42, to delete all words from and including "a" in line 41 down to and including "Superintendent;" in line 42 and substitute the following:
"the Chief Bureau Officer of the Criminal Assets Bureau;".
The first amendment seeks to replace the chief superintendent of the Garda Síochána with the chief bureau officer of the Criminal Assets Bureau as the person who can apply for an interim order, interlocutory order or disposal order under the provisions of the Bill. As the terrorist funds which would be the subject of any such application may not be the proceeds of crime we believe the amendment is effectively unacceptable for the reasons set out.
Under the Proceeds of Crime Act 1996, one of the persons who can apply for an interim order, interlocutory order or a disposal order is a member of the Garda Síochána of at least chief superintendent rank. The other is an officer of the Revenue Commissioners. Under the Bill the only person who can make the application is a member of the Garda Síochána of at least superintendent rank. As any such application would be in respect of funds used or intended for use in committing or facilitating the commission of a terrorist offence or terrorist financing offence it would be inappropriate for an application to be made by an officer of the Revenue Commissioners. For the same reason, it would be inappropriate to confine that Garda power to make an application of the Bill to the chief bureau office of CAB. In practice, when a member of the Garda Síochána makes an application under the 1996 Act, it will be by the chief superintendent who has been appointed chief bureau officer. That is because the objectives of CAB are to identify the assets of persons that derive from or are suspected to derive from criminal activity and to take appropriate action under the law to deprive or deny those persons of the assets or the benefits of such assets. In other words, we are referring to the proceeds of crime, the identification of which is the function of CAB.
If I shake a box in a pub and collect money for Al-Qaeda or some other organisation, the money collected is not a proceed of crime. It is just money subscribed and therefore CAB's role in respect of that money is not really appropriate. It is a specialist proceeds-of-crime agency. Funds donated by sympathisers to a terrorist cause might be earned perfectly legitimately and have no criminal origin. Confining the power in question to CAB implies that we are dealing solely with the proceeds of crime — this is the speciality of the bureau — whereas terrorists' finances do not necessarily derive from the proceeds of crime.
On the second amendment, section 22B provides for an ex parte application by the Minister for Justice, Equality and Law Reform to the High Court for an interim order in respect of specified property which, in the opinion of the Minister, is either of the following: the property of an unlawful organisation, whether or not it is in the possession or control of that organisation; property that has been forfeited to the State and vested in the Minister by reason of section 22 of the Offences Against the State Act 1939. I cannot accept that amendment for the same reason that I could not confine applications to the High Court under sections 14 to 16 of this Bill to the chief bureau officer of CAB. As I stated, CAB’s statutory objective is to identify assets that are the proceeds of crime and to deny persons of those assets by action it is entitled to take under law. The properties of unlawful organisations might not necessarily be the proceeds of crime — not all them in any case — and it would probably be difficult to distinguish the proceeds of crime from property otherwise acquired or donated. Therefore, apart from policy considerations associated with the seizure of property of unlawful organisations, it would be outside the remit of CAB to become involved in seeking interim orders and disposal orders in respect of organisations such as terrorist organisations.
CAB is a specialist agency. It does its job very well and I do not want the financial end of anti-terrorism to be necessarily tied to its activities. I want it to focus on its own functions and I would like anti-terrorism measures to be more widely available. Having said that, I believe the Assets Recovery Agency in Northern Ireland and the CAB in this State should both be used very extensively to track down terrorist organisations' moneys that are the proceeds of crime, derived from bank robberies, extortion, etc. Whereas I am not suggesting that CAB might not want to use these types of powers on some occasion, I am not suggesting that they should be confined to CAB officers. It would be a mistake to do so.
Perhaps the Minister will forward his written responses to the amendments to Deputy Costello, thereby enabling him to argue the point in another forum. I cannot imagine what Deputy Costello is thinking. He should be back at this committee in a matter of minutes. I will withdraw the amendment on the assumption that the Minister will forward to the Deputy the written responses.
No problem.
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 17, subsection (1), line 8, to delete "property" and substitute "funds".
This is a technical amendment that replaces the word "property" with "funds" in the definition of "respondent". The definition of respondent is taken from section 1 of the Proceeds of Crime Act 1996. The term property is used in that definition and consequently throughout that Act. However, in line with the UN International Convention for the Suppression of the Financing of Terrorism, the term funds is used throughout this Bill. In the interests of accuracy and consistency, it is appropriate to use the term "funds" rather than "property" in the definition of respondent for the purposes of this Bill. It is a little oversight and it should be rectified.
Amendment agreed to.
I move amendment No. 19:
In page 17, subsection (2), between lines 27 and 28, to insert the following:
"or
(c) are subject to a trust, investment, or are in the possession or control of a company connected to that person”.
During Committee Stage of the Proceeds of Crime (Amendment) Bill 1999, I felt there might have been a loophole such that criminals could place robbed moneys in a trust or investment controlled by them indirectly, and I wondered if the Bill could be improved accordingly. The Minister examined the issue and, if I recollect correctly, he came up with a formulation that accepted the principle of what I was arguing, but in a slightly different wording. Will the Minister consider a similar formulation in this case to improve the legislation?
I thank Deputy O'Keeffe for this amendment, which is broadly similar to one he tabled for the Proceeds of Crime (Amendment) Bill 1999. The wording of this amendment is a little different to that proposed by the Parliamentary Counsel to deal with that case. While the 1999 Bill deals with possession or control of property and this Bill deals with the possession or control of funds, I will refer the wording of the amendment to Parliamentary Counsel. I assure the Deputy that if Parliamentary Counsel is satisfied with the wording, I will accept the amendment if it is tabled again on Report Stage. If not, I will suggest an amended version thereof for consideration on Report Stage.
I am happy with that.
Amendment, by leave, withdrawn.
Section 12, as amended, agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."
The Human Rights Commission and the Irish Council of Civil Liberties have both expressed concerns about this section, of which the Minister and others would have been made aware. The concerns relate to the creation of the new offence of financing terrorism. The definition of terrorism in section 13 is somewhat narrower than the one we have already dealt with. The Irish Council of Civil Liberties believes the definition of what constitutes one's being guilty of the offence of financing terrorism to be excessively broad. The definition covers any person who, "by any means, directly or indirectly, unlawfully and wilfully provides, collects or receives funds intending that they be used or knowing that they will be used, in whole or in part" to carry out acts defined as offences under section 13(1). The Irish Council of Civil Liberties contends that the wide construction of what constitutes financing, in particular the clauses that moneys given may be only partially used to carry out the defined offences and that funding can be indirect, could potentially criminalise a wide group of people with little direct link to future offences.
The other point the council makes is that there is no monetary limit. In other words, the definition of "financing" in the Bill covers all contributions, however small. The Human Rights Commission takes the position that the provisions could result in fund-raising for groups opposing dictatorial regimes being construed as the financing of terrorism. If we tighten up the original definitions, it might go some way towards addressing the concerns of both the Human Rights Commission and the Irish Council of Civil Liberties, although there is a tighter definition of what constitutes terrorism or terrorist activity in section 13.
I acknowledge the points the Deputy is raising but my advice is to stick very closely to the terminology of the original convention. I do not propose to move away from it. On thresholds of materiality in respect of financing terrorism, one only has to remember the bomb in Wapping, which killed one individual and destroyed very significant property in London. The cost of putting it together was €3,000, which is an example of an inexpensive bomb causing massive damage and taking human life. There are many other cases of children being blown up by bombs placed in dustbins and the like. Relatively small sums of money can be used to cause terrible damage. I accept Deputy Ó Snodaigh's remarks but the section should stand as it is.
Question put and agreed to.
Sections 14 and 15 agreed to.
SECTION 16.
Amendments Nos. 20 and 21 are related and may be discussed together.
I move amendment No. 20:
In page 22, subsection (1), to delete line 32 and substitute the following:
"16.—(1) In this section 'drug related initiatives' means voluntary and State funded programmes established to discourage people from taking drugs, or established to assist in the rehabilitation of drug users.
(2) subject to subsection (3), where an interlocutory order".
This amendment proposes to insert a new definition into section 16 of "drug related initiatives", which would enable the Minister to ensure that the proceeds of crime seized by the State are applied to appropriate organisations and initiatives, identified by the Minister for Justice, Equality and Law Reform, focused on redressing the damage caused by those engaged in drug-related activities.
We discussed this issue on the Proceeds of Crime (Amendment) Bill 1999, which was followed up by Deputy O'Dowd who developed the thinking on the matter. We are talking about ring fencing rather than collecting funds and giving them into the maw of the Exchequer. The idea is to focus on the areas which have been damaged by drugs and provide ring-fenced funds. Reference is made here to a disposal order and funds seized, therefore, similar thinking will arise.
The ring fencing issue is a hardy annual. Every time I hear myself address the issue I am more convinced.
Is the Minister in favour of it?
I could be very tempted by Deputy O'Keeffe's very generous offer to establish a special slush fund for myself to use.
The Minister will need one in a year or two.
The answer is "No". I will stick to the general principle that forfeited funds should go to the Exchequer.
We have covered this ground before, for example, the dormant accounts fund, plastic bag tax and national pensions reserve fund. I am disappointed the Minister has not accepted this amendment. I will not press the issue now but I will return to it with greater fervour at the next stage.
I wish the Deputy luck.
Amendment, by leave, withdrawn.
Amendment No. 21 not moved.
Section 16 agreed to.
Sections 17 to 21, inclusive, agreed to.
SECTION 22.
I move amendment No. 22:
In page 31, line 14 to delete "3B" and substitute "8B"
This is a technical amendment to remedy a typographical error.
Amendment agreed to.
Section 22, as amended, agreed to.
Sections 23 to 32, inclusive, agreed to.
SECTION 33.
I move: "That section 33 be deleted.". Sections 33 and 34 have been rendered redundant by amendments to sections 38 and 39 of the Criminal Justice Act 1994, which were made by the Proceeds of Crime (Amendment) Bill 1999 which recently passed All Stages in the Dáil and I therefore propose that they be deleted.
Question put and agreed to.
SECTION 34.
I move: "That section 34 be deleted.".
Question put and agreed to.
Sections 35 and 36 agreed to.
NEW SECTION.
I move amendmentNo. 23:
In page 38, before section 37, to insert the following new section:
"37. — (1) Section 55 of the Act of 1994 is amended by deleting subsection (2).
(2) Section 63 of the Act of 1994 is amended by inserting the following subsection after subsection (10)-
‘(11) (a) references in this section to drug trafficking includes any conduct which is an offence under the law of a country or territory outside the State and would constitute drug trafficking had the conduct occurred in the State,
(b) references in this section to an offence of financing terrorism includes any conduct which is an offence under the law of a country or territory outside the State and would constitute financing terrorism had the conduct occurred in the State or in the circumstances referred to in section 13(6) of the Act of 2002, and
(c) references in this section to an offence in respect of which a confiscation order might be made under section 9 of this Act included any conduct which is an offence under the law of a country or territory outside the State and would constitute an offence in respect of which a confiscation order might be made under section 9 of this Act had the conduct occurred in the State.’.”
This is very much a technical amendment. Section 55 of the 1994 Act already made a non-textual amendment to section 63 of that Act. The Minister seeks to repeat and compound this. I am proposing a more direct textual amendment be made to section 63. If it commends itself to the Minister or he wishes to examine it further, that is fine. It does not alter the situation substantively.
I am not all that attracted to the amendment. Section 55 of the 1994 Act is a mutual assistance provision under which the Government may designate countries for the purposes of international co-operation. Section 37 of the Bill amends section 55 to ensure that, for the purposes of mutual assistance, the offence of financing terrorism is included, as with drug trafficking and other offences to ensure that conduct which is an offence of financing terrorism outside the State would constitute an offence of financing terrorism if the conduct occurred within the State.
Section 55 appears to the most appropriate place for this provision, although it could be argued that subsection (2) might be better placed later in the section. However, that is simply a presentational point and does not have much bearing on the meaning or effect of the provision.
It is more appropriate because it is linked to the designation provided for in this section. Moreover, it is an international co-operation provision which should be part of Part 7 of the Criminal Justice Act 1994, which deals with international co-operation. Section 55 is in Part 7. Section 63, which allows the Garda to apply to the District Court for an order to make material available is in Part 8 which, in general, contains supplementary provisions. I am satisfied that section 55 is the better place for this provision and has been since 1994. However, if the Deputy is not happy, I am prepared to seek the opinion of the Chief Parliamentary Counsel before Report Stage to see if his solution is tidier than mine.
It is a technical amendment tabled purely to improve the Bill. If it commends itself to the chief parliamentary counsel, well and good. If not, that is also fine.
Amendment, by leave, withdrawn.
Section 37 agreed to.
SECTION 38.
Amendments Nos. 24 and 25 are cognate and may be discussed together.
I move amendment No. 24:
In page 38, paragraph (a), line 33, after“Síochána” to insert the following:
"and to the Revenue Commissioners".
The need for these amendments arises from amendments made to section 57 of the Criminal Justice Act 1994 by the Department of Finance in the Central Bank and Financial Services Authority of Ireland Act 2003 and the effect of those Department of Finance inspired amendments was that any person, for example a bank employee, to whom section 32 of the 1994 Act applied, would have to report offences such a money-laundering to the Revenue Commissioners as well as the Garda.
Amendment agreed to.
I move amendment No. 25:
In page 38, paragraph (b), line 43, after “Síochána” to insert the following:
"and to the Revenue Commissioners".
Amendment agreed to.
Section 38, as amended, agreed to.
NEW SECTION.
I move amendment No. 26:
In page 39, before section 39, to insert the following new section:
39.--Section 58 of the Act of 1994 is amended as follows:
(a) in subsection (1) by substituting ‘an investigation into drug trafficking, into whether a person holds funds subject to confiscation or into whether a person has benefited from an offence in respect of which a confiscation order might be made’ for ‘an investigation into drug trafficking or into whether a person has benefited from an offence in respect of which a confiscation order might be made’, and
(b) in subsection (2) by substituting ‘makes any disclosure which is likely to prejudice an investigation arising from a report into whether an offence of financing terrorism or an offence under section 31 or 32 of this Act has been committed shall be guilty of an offence’ for ‘makes any disclosure which is likely to prejudice an investigation arising from a report into whether an offence under section 31 or 32 of this Act has been committed shall be guilty of an offence’.”.
This amendment corrects an oversight in the drafting of the Bill which excluded from the offence prejudicing an investigation of the disclosure and making of a report under section 57(1) or (2) of the Criminal Justice Act 1994 into whether an offence of financing terrorism has been committed that was likely to prejudice an investigation arising from the report.
Section 58(1) of the Criminal Justice Act 1994 makes it an offence to disclose anything likely to prejudice an investigation into matters such as drug trafficking or whether a person has benefited from an offence in respect of which a confiscation order might be made. A person who knows or suspects that an investigation is taking place can commit this offence. Frequently, an official in one of these institutions would tip off a customer that the authorities are on to him. Section 39 amends that provision to include disclosure of an investigation into whether a person holds funds subject to confiscation, that is, terrorist funds.
In addition, a similar amendment should have been made to section 58(2) of the 1994 Act and the amendment I now propose does just that. It will be an offence for a person to disclose the making of a report under section 57(1) or (2) of the 1994 Act into whether an offence of financing international terrorism has been committed, knowing or suspecting that such a report has been made. Section 57 is concerned with the making of reports to the gardaí and the Revenue Commissions by a person, such as a director or employee of a financial institution, of his suspicions that money laundering and now, also, terrorist financing offences are being or have been committed. It criminalises someone in an institution who tips people off that they are being investigated to facilitate their evasion from the purpose of the Act.
They must know the order is being made. The reference is to "in respect of which a confiscation order might be made".
If a bank manager knows funds are under examination and rings the client to say that his funds are being investigated because it might be the proceeds of international terrorism, and the client tells him withdraw it, the bank manager is committing a criminal offence.
I agree in principle but I am worried about the reference to the confiscation order that "might" be made. What knowledge would a person need to have?
If it was only for orders that had been made, it would be ineffectual. It must be anticipatory.
Amendment agreed to.
Section 39 deleted.
SECTION 40.
I move amendment No. 27:
In page 39, line 13, after "61(1A)" to insert "of the Act of 1994".
This is a technical amendment to identify the section 61(1A) to which I am referring.
Amendment agreed to.
Section 40, as amended, agreed to.
Sections 41 to 43, inclusive, agreed to.
SECTION 44.
I move amendment No. 28:
In page 42, to delete lines 11 to 42 and substitute the following:
"and
(b) respecting the freezing or seizure of such assets or the imposition of other restrictive measures referred to in subsection (1)(b).
(3) A person who contravenes a requirement of a regulation made under subsection (2) is guilty of an offence.
(4) A person guilty of an offence under subsection (3) is liable—
(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to—
(i) a fine not exceeding the greater of €10,000,000 or twice the value of the assets in respect of which the offence was committed,
(ii) imprisonment for a term net exceeding 20 years, or
(iii) both such fine and such imprisonment.
(5) Where after being convicted of an offence under subsection (3) a person continues to contravene the requirement to which the offence relates, the person is guilty of a further offence on every day on which the contravention continues and for each such offence is liable to whichever of the following penalties is applicable:
(a) on summary conviction to a fine not exceeding €1,000, if the person was convicted of the offence under subsection (3) on summary conviction;
(b) on conviction on indictment to a fine not exceeding €100,000, if the person was convicted of the offence under subsection (3) on indictment.
(6) The Minister for Finance may make regulations providing for such incidental, supplementary and consequential provisions as appear to that Minister to be necessary for giving effect to regulations under subsection (2).
(7) A person who contravenes a requirement of a regulation made under subsection (6) is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both.
(8) Where after being convicted of an offence under subsection (7) a person continues to contravene the requirement to which the offence relates, the person is guilty of a further offence on every day on which the contravention continues and for each such offence is liable on summary conviction to a fine not exceeding €1,000.”.
Section 44 allows the Minister for Finance to make regulations that will impose effective, proportionate and dissuasive penalties for breaches of EU legislation that provides for freezing of funds of named individuals or groups linked to terrorism.
Until now the Minister has been empowered to impose penalties for the commission of a summary offence. Under section 44(3), a person who contravenes a requirement of a regulation of a substantive nature can be tried summarily or on indictment. Following conviction for such an offence, a person who continues to contravene the requirement to which the offence relates can be tried summarily or on indictment. Also, under section 44(3), a person who contravenes a regulation of an administrative nature can only be tried summarily.
As currently worded, however, a person who continues to contravene an administrative regulation can be tried summarily or on indictment. This is wrong and illogical and the purpose of this amendment is to ensure that a person who can only be charged summarily for contravention of an administrative regulation can also only be charged summarily for a continuing contravention of that regulation. Accordingly, this amendment returns the wording of the section to what it should have been and I commend it to the committee.
If there is such a fine or a term of imprisonment, is it right that we should give the power to the Minister of Finance to make regulations without their coming back to the Dáil or committee for approval?
That is a reasonable point. It appears that it would allow the Minister for Finance to criminalise an act but the Attorney General's office has advised us this is legitimate. It is done this way because if this applies to a well-known international terrorist, we cannot convene a meeting of the Dáil or a committee during a recess to see if such an order can be made. The Attorney General has advised that there is nothing inherently wrong with it, despite the fact that it effectively designated someone as a person whose activities can lead to crimes being committed by others.
I take the Minister's point that we do not want to tip off the person to whom the regulations will be applied but regulations in this form should have a sunset clause until confirmed by a committee or by the Dáil. That would allay the concerns. If a regulation criminalises a person, it must be confirmed at a later stage and within a set time frame.
The Deputy is talking about the general principle of the section but the amendment only ensures that under the European Communities Act, which empowers a Minister to make regulations that only create summary offences, he or she cannot create indictable offences. Continuing disobedience, however, would be an indictable offence if we do not amend the law this way. We do not want a situation where the Minister for Finance can create a regulation that gives rise to indictable offences being committed by individuals on a continuing basis where they do not comply with the regulation.
I find myself in the rare position of agreeing with Deputy Ó Snodaigh. I am worried about accepting this without teasing it out further. This apparently gives power to the Minister for Finance to create a regulation which could result in enormous penalties for breaching it, including on conviction on indictment a fine not exceeding €10 million and imprisonment for a term of up to 20 years. We should pause before rushing into such a situation. I may be wrong but I am concerned about granting the Minister for Finance such draconian powers without reference to the Oireachtas.
The Minister is giving enormous power to the Minister for Finance when the only thing he must have is an opinion that assets might contribute to terrorism, a concept that can be broadly defined. The Minister can then seize and freeze assets and impose penalties. We must bear in mind the wide definition of terrorism. All this can be done without reference to any other Minister, not even the Minister for Justice, Equality and Law Reform, or law officer. No consultation process, good, bad or indifferent, is available to the Minister for Finance. There is no reference to the Oireachtas. What scrutiny are the regulations that the Minister for Finance may draw up subject to? We have no idea how these regulations will operate, except that the Minister for Finance has total and unilateral control over them. It gives a hard line of authority to the Minister for Finance, allowing him to impose heavy penalties.
Whereas the Deputies are talking to the principle of the section, my amendment confines penalties for a continuing breach of the Minister's regulation to the status of a summary offence rather than an indictable one. The Deputies are raising broader issues as to whether the section should be there at all. On the specific issue of the amendment, that is in ease of people and not imposing new liabilities. It is confining the punishment powers.
The amendment, as presented by the Minister, appears to be an ease of the provision as provided and can be supported. However——
Can we come back to it on Report Stage?
I have genuine concerns of putting this through on the nod. In principle, giving powers to any Minister to provide for an offence that would involve such enormous monetary penalties and imprisonment of up to 20 years without reference to the Oireachtas is not good.
Chairman, can we note the doubts expressed and agree to return to it on Report Stage?
I am in the hands of the select committee members.
I am prepared to agree to it if the Minister will re-examine it with his advisers before Report Stage.
Particularly with the width of the definition of terrorist offences, it could be applied to anything.
Amendment agreed to.
Section 44, as amended, agreed to.
Progress reported; Committee to sit again.
The select committee adjourned at 6.20 p.m. until 9.30 a.m. on Thursday, 4 November 2004.