Select Committee on Legislation and Security debate -
Tuesday, 26 Nov 1996

SECTION 3.

Mr. O'Donoghue

I move amendment No. 1:

In page 4, subsection (1), line 2, after "abolished", to insert "All offences carrying a penalty of imprisonment for a period of five years or greater shall henceforth be known as felonies.".

This amendment was inspired by Deputy Lenihan who is an expert in the field. He made it clear that that since the expression "felony" is referred to in the Constitution, it is open to question as to whether the Minister could introduce a Bill which purports to abolish the entire concept. Deputy Lenihan is of the view that there is a serious question to answer in this regard. It is his opinion that, since the expression "felony" is referred to in the Constitution, the least the Bill should do is provide for a new definition. I strongly agree with his stated view that the House is not competent to devalue or eliminate the concept of "felony" from the Constitution.

That said, I accept, as did Deputy Lenihan, that the definition of the word "felony" is not written in stone and must be open to interpretation. However, it is important that we acknowledge that the word "felony" is recognised in the Constitution and we must be wary of dispensing with it entirely in legislation such as this.

Minister for Justice (Mrs. Owen)

I recall Deputy Lenihan raising this matter on Second Stage. The fact that the Constitution refers to "felonies" does not mean that they must continue to exist or cannot be altered. Legislation was introduced in the past to amend and repeal old legislation and offences which were classed as felonies were repealed and replaced with new or modified offences. That process is ongoing and it applies to all legislation, not only that sponsored by the Minister for Justice. There is no argument that every offence which was a felony when the Constitution came into effect must be retained and cannot be altered for the purposes of Article 15.13.

Similarly, I do not believe any person would argue that new felonies created by the Oireachtas after 1937 would have no application for the purposes of Article 15.13. There is an ongoing process in criminal law where old offences are abolished or replaced and new offences are created. I listened to the arguments made. From what Deputy O'Donoghue said, I believe he too has a 50:50 view as to whether we should abolish this in relation to Article 15.13. I share that 50:50 view in this regard. I am prepared to consider tabling an amendment on Report Stage. I do not want the Bill to be struck down for constitutional reasons. There may be doubts about its constitutionality because Article 15.13 refers to a felony as regards Members of the Oireachtas and I would not like it to be struck down for that reason. If it would certify the constitutionality of the Bill, I would be prepared to table an amendment on Report Stage. For that reason, I ask Deputy O'Donoghue to withdraw the amendment.

Mr. O'Donoghue

I thank the Minister for her reply.

Amendment, by leave, withdrawn.

Section 3 agreed to.