We will now deal with No. 5, motion regarding the continuance of the Offences Against the State (Amendment) Act 1998 and No. 6, motion regarding the Criminal Justice (Amendment) Act 2009. Both motions will be debated together and decided separately. I call on the Acting Leader to move No. 5 regarding the Offences Against the State (Amendment) Act 1998.
Offences Against the State (Amendment) Act 1998 and Criminal Justice (Amendment) Act 2009: Motions
I move:
"That Seanad Éireann resolves that sections 2 to 4, 6 to 12, 14 and 17 of the Offences against the State (Amendment) Act 1998 (No. 39 of 1998) shall continue in operation for the period beginning on 30th June, 2023 and ending on 29th June, 2024."
I thank the House for taking these two motions today.
They seek the approval of the Seanad to continue in force provisions in the Offences Against the State (Amendment) Act 1998 aimed at tackling terrorism and the Criminal Justice (Amendment) Act 2009 in respect of organised crime.
The House will be aware that the Offences Against the State (Amendment) Act 1998 was a necessary and wholly proportionate response to the atrocity at Omagh. Our thoughts are always with the families of those murdered and the survivors of this heinous act.
Of course, it must be recognised that in the subsequent years there has been steady progress towards building a lasting peace on this island. Earlier this year we commemorated the 25th anniversary of the Good Friday Agreement. This historic agreement demonstrates how democratic politics can improve the lives of citizens in a divided society. However, there remains much work to do - peace is fragile and needs to be protected. This time last year we all welcomed the lowering of the threat level in Northern Ireland. However, this was short lived. In March, the UK authorities raised the threat level to "severe", meaning a terrorist-related attack is highly likely. It is clear that the so-called "dissident republicans", who have their origins in the Provisional IRA and INLA, continue to represent a threat. Images of masked men in paramilitary uniforms on the streets of Derry earlier this year and of youths throwing petrol bombs at police are images we all hoped that we would not see again. They serve to remind us that we cannot take for granted the enormous opportunity for peace and progress that was brought about by the Good Friday Agreement.
It is imperative that our laws and our authorities are properly equipped to deal with the threat from terrorism, and let no one be under any illusion that these groups do not represent a threat to this State. In that regard, I am firmly of the view that the provisions I am seeking the renewal of today are necessary and required to support An Garda Síochána in investigating, disrupting and dismantling the activities of terrorists.
The House will be aware that in February 2021, the Minister for Justice established an independent expert review group to examine all aspects of the Offences Against the State Acts. The Minister for published reports of the review group last week ensuring that they would be available to Senators ahead of today's debate.
There is much to digest in the majority's package of recommendations and also in the perspective of the minority, and it is important that we take the time to consider carefully how best to proceed. With this in mind, the Minister for Justice has asked her officials to consult with other Departments and the Garda Commissioner, the Office of the Director of Public Prosecutions, DPP, and the Courts Service to inform the preparation of a substantive response for consideration by Government in due course. The Minister has also asked her officials to consult with the Irish Human Rights and Equality Commission to ensure that a broad human rights perspective is captured.
However, in the meantime, having regard to the clear view of the Garda authorities, as noted in the report before the House, that the 1998 Act continues to be one of the most important tools in our ongoing efforts in the fight against terrorism, the Minister is absolutely satisfied that these provisions continue to be required and that they should remain in operation for a further 12 months.
I note that Sinn Féin, which has never supported the Offences Against the State Acts or the Special Criminal Court, has tabled an amendment calling for legislation to give effect to the recommendations of the review group as soon as possible. As I have said, the Minister has asked her officials to begin detailed consultations on the findings of the reports of the review group. It is not appropriate, given how we are dealing with pillars of the criminal justice system that have served us well, to give a commitment to legislation without full consideration of the issues. The Minister must first consult with An Garda Síochána, the DPP and the courts and others to inform a substantive response for consideration by Government.
It is absolutely imperative that we do not do anything to undermine the efforts of the authorities with responsibility for countering paramilitary and criminal groups and protecting communities.
Section 8 of the Criminal Justice (Amendment) Act 2009 makes certain organised offences scheduled offences to be heard in the Special Criminal Court subject to the power of the Director of Public Prosecutions to direct that the offences be tried in the ordinary courts. The purpose of this provision is to guard against the possibility of interference with jury trials by ruthless criminal gangs who behave as if they are beyond the law. Everyone in this House is aware of the threat that society and the criminal justice system face from organised crime gangs who will stop at nothing in pursuit of their criminal activities. Nobody can doubt that they will not hesitate to use extreme violence and murder in pursuing their aims and evading justice. This Government is fully committed to supporting the Garda in combatting those involved in organised crime and this is reflected in the unprecedented allocation of more than €2 billion in budget 2023. It is right that we acknowledge the important work of the Garda to bear down on those involved in organised crime and the views of the Garda are clearly set out in the report to the effect that the continued operation of this provision is required. It is, therefore, the view of the Minister that section 8 should be continued in operation for a further 12 months.
I call Senator Horkan, who has seven minutes.
I do not think I will be needing the seven minutes because the Minister of State has clearly outlined the circumstances in which we find ourselves. On my behalf and that of the Fianna Fáil group, I can say we will be supporting these Government motions.
It is clear that if these motions were not to be passed, the provisions in place would expire on 30 June 2023. That is not a position I or anybody else would want the State to be in. I was taken by the Minister of State's reference to something I already knew, namely, that in March, the UK authorities raised the threat level to "severe", meaning a terrorist-related attack is highly likely. In that context, it would be remiss of us not to renew these provisions. I welcome this move. I hope parties across the Chamber will support these motions. I thank the Minister of State for his comprehensive speech outlining the reasons for the need for these extensions. I am aware there is an ongoing review but until that is dealt with, it is important for us to renew these measures for the next 12 months.
I support the motion. I have some sympathy with the Sinn Féin amendment but I think it will take longer than 12 months to get all the ducks in a row to do what is necessary. On the question as to whether further or different legislation is necessary, I want to say that the whole concept of scheduled offences is, and always has been, a slightly dubious one. The relevant provision of the Constitution reads, "Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order." It always seemed to me that on a close reading of that particular article, it is wrong to say that offences per se go to the Special Criminal Court. What the Constitution actually requires is that it must be decided on a case-by-case basis and it must be determined in respect of the case and not the offence that the ordinary courts are inadequate. For that reason, I have always taken the view that in respect of scheduled offences under the Offences against the State Act, the presumption that you go to the Special Criminal Court in particular cases is a very dubious one constitutionally. I have held various offices, which I will not go over, since I formed this opinion and nobody has ever made this point significantly, but I believe the recommendation in the report that offences should not be scheduled per se but that the process whereby they are determined to go to the Special Criminal Court should be case by case and not category by category. That is my strong view.
I am an absolutely passionate believer in jury trial and, therefore, believe that whatever system is put in place, whether Special Criminal Court or other non-jury courts, must be, under the article, the absolute exception and used to the minimum degree necessary to secure the effective administration of justice. Where does that leave me?
The law dates from 1939 and 1940 and later. These laws do need revision. The Government has to face up to this issue. Warrants under the Offences Against the State Act were already the subject of legislative change and we are going to have to address this issue very seriously in the next 12 months. Can it be done in 12 months? I think it will be tight, but I do believe the Minister should come into this House and explain her thinking about the report. We should have a debate on the report because it is a substantial piece of work. My secretarial assistant, Samantha Long, has just printed it out for me, and when I saw the size of it I said this does deserve to be discussed in detail. As for today, while I have sympathy for the Sinn Féin amendment, I support the Government because I think we do need another 12 months to get it right. There is no point in making a mess of this vital piece of legislation or rushing at it in a way that will leaves loopholes, which will affect the security of the State.
My last point is on the question of the security of the State. The security of the State is not to be taken for granted. We are vulnerable. Our Defence Forces are at a minimum. We got rid of the FCA. How many people who are not in criminal gangs can even fire a rifle now and come to the Government's aid? We have stripped everything back down. The numbers in the Defence Forces are down, the numbers in the Garda Reserve are down and the numbers in the Civil Defence are down. It is about time we as a society took security seriously. I am not getting into NATO or any of those issues, but I am saying that successive Governments have run down the Department of Defence and the security of the Irish State is not to be taken for granted.
Ar dtús báire, ba mhaith liom fáilte a chur roimh an Aire Stáit agus mo bhuíochas a ghabháil leis agus leis an tAire Dlí agus Cirt as an tuairisc sin a chur ar fáil dúinn roimh an díospóireacht seo. I will not say I have read the report, but I have had a brief look at it. I agree with what Senator McDowell says, that it is enormous, but it is also very detailed and it gives very careful consideration to the issue at play here. I welcome the report. I also welcome its majority finding.
On behalf of Fine Gael, I support the motion, but I am not 100% committed to it because I think the Special Criminal Court is a necessary evil. As somebody who practices in this area, I greatly value juries. I think they bring something to any process, including defamation processes, as we discussed at the Joint Committee on Justice last week and this week. They are a tremendously important part of the system, but I also recognise that there are certain limited instances where it is not possible or advisable to have a jury, and they are covered by the Special Criminal Court. I do not agree with what Senator McDowell says about scheduled offences. I understand the points he makes but my understanding is that scheduled offences merely limit the provisions of Article 38.3, insofar as they say it cannot be applied to other cases outside the scheduled offences.
It is the opposite. Any case can be sent to the Special Criminal Court.
But is that not the point? The Constitution allows it to apply to any offence, but the legislation limits it to scheduled offences.
Yes, and scheduled offences are therefore automatically sent, unless the DPP rules otherwise.
This is the point I was going to get to. I accept that point, but it does not mean that scheduling offences is necessarily a problem. What I do think is a problem, as I have said in every one of these debates in the years I have been in this Chamber, is that the decision-making process, whereby cases are nominated to go to the Special Criminal Court, is problematic because the sole decision maker is not an independent authority. The DPP decides of her own motion whether a case goes to the Special Criminal Court. The reality is that, although I have enormous respect for the independence and the professionalism of the DPP's office, it is not a disinterested party in the context of the prosecution of offences, nor should it be. The DPP is necessarily a party to a prosecution and therefore it is not correct in my view that she should be making the decision about where a case is prosecuted or at least insofar as it applies to a jury court or a non-jury court. I think that decision should be made by an independent body. The High Court is the most obvious example, and it should be done by a motion of the DPP before the High Court. To my mind, that would solve exactly the problem Senator McDowell complains about, although there is also scope to say there are other offences, and the offenders involved and the nature of those offences might otherwise qualify them for a trial in the Special Criminal Court. Whatever the case, I think we can remove the possibility of complaint about a conflict of interest or a complaint about being an interested party making that decision simply by removing it from the DPP and giving it to an independent body like the High Court.
Whatever the case, we can remove the possibility of complaints about a conflict of interest or an interested party making that decision simply by removing it from the DPP and giving it to an independent body like the High Court. The Special Criminal Court is something that should be used sparingly. It should not be used on a blanket basis for for a majority of offences, or anything like that. There is a small number of offences that fall within what is required for the Special Criminal Court. The notion, however, that we would take it away at this juncture, particularly before we have had an opportunity to fully consider the report, is dangerous. I also agree with calls for the Minister to come to the House to discuss the report. There should be a full debate in this Chamber on the report so that we can flesh out the issues. There are reforms we can make to the legislation on foot of the expert report and the majority recommendations. I do not agree with the notion that the Special Criminal Court should become a permanent court. I favour parliamentary oversight where that is possible. While what constitutes a debate here every year perhaps does not involve a great deal of information being provided to us by the Minister on the basis of the continued requirement for the court, I still think it is important this question comes to the Seanad and the Dáil every year. It is appropriate that parliamentary oversight is a necessary part of the safeguards that are built into it. Let us discuss the report and look at reforming the way it is done. Let us try to improve the elements of the Special Criminal Court with which some people have a difficulty so that we can safeguard everybody's rights as he or she goes or does not go before the court.
I move amendment No. 1:
To delete all words after "Seanad Éireann" and substitute the following:
“:
- resolves that sections 2 to 4, 6 to 12, 14 and 17 of the Offences against the State (Amendment) Act 1998 (No. 39 of 1998) shall continue in operation for the period beginning on 30th June, 2023 and ending on 29th June, 2024; and
- calls on the Minister for Justice to bring forward legislation to give effect to the recommendations of the Independent Review Group as soon as possible.”.
I second the amendment.
I welcome the Minister of State to the House. In 2002, the Hederman review into the Offences Against the State Acts was published. It made several key recommendations, including to repeal the existing Offences Against the State Acts and replace them with one single consolidated item of legislation, which should contain significant reforms of the Acts. The most recent review of the Acts, published last week, reflected the recommendations of the Hederman review. Twenty years have passed between the Hederman review and the most recent review. What has changed in this period with respect to the Acts? In a word, nothing. Sinn Féin sought the most recent review, as the Minister of State is aware. We made a submission to the review group. Despite any protestations to the contrary, it is the review and its recommendations that are now most relevant and urgent, not the renewal of outdated legislation for which the Government is seeking support.
The review group stated that, "Many of the recommendations which follow throughout this report are simply a reiteration of what the Hederman Committee recommended in 2002." As Sinn Féin and others have stated repeatedly, the idea of having to renew legislation each year creates massive legal uncertainty. The Government is speaking out of both sides of its mouth simultaneously. On the one hand, it has accepted the overwhelming weight of legal and academic analysis in establishing the review and publishing it, yet it acts as though it has no credible alternative to its groundhog day piece of annual political theatre. This approach does not make sense, unless you are Fine Gael, trying to build a faltering reputation as being the party of law and order. Its record, since it took responsibility for the justice portfolio 12 years ago, belies this reputation. Look at what Fine Gael Ministers have delivered. Serious crime levels are out of control and a serious threat is posed to society by organised crime. There is a retention and recruitment crisis in An Garda Síochána. Courts across the State have a huge backlog and there are lengthy waits for trials. Inquests in coroners courts, similarly, take a long time. Families cannot move on while waiting and wondering what happened to loved ones who have passed. Legislation to combat white-collar crime, the handmaiden of serious and organised crime, has been implemented after the EU deadlines. Prisons are deprived of necessary resources, increasing risks to staff and, indeed, public safety.
What must be done? The report of the review group points the way forward. All courts need to integrate into a single, reformed, modern criminal justice system. Resources must be provided to the Garda and special provisions for juries, where there is a high likelihood of intimidation or tampering, need to be implemented. Evaluations of this risk should be based on statistics and intelligence evaluations and supervised by judges. The majority opinion of the review group report backs this very clearly. It also recommends that the current system should not continue. The sole power for deciding on the use of a non-jury court will remain with the DPP, but it is recommended that an oversight mechanism be introduced. There are great merits in the views of the majority and the minority, and we will consider them fully when the enabling legislation is brought forward.
Sinn Féin was the only party to make a submission to the review group, so am I entitled to ask how seriously others take the matter when they failed to make a similar submission. We included four key recommendations in our submission, the majority of which were incorporated into the core recommendations of the report of the majority of the review group.
Other measures outside the courts system are required as well. Within the Criminal Assets Bureau, CAB, more experts are needed to deal with financial crime. The Commission on the Future of Policing in Ireland made several recommendations related to cybercrime and cybersecurity. These recommendations must be implemented.
I urge the Minister of State to resist the temptation to hold this political set piece again next year. The report can be completed, and a Bill moved, within that timeframe. Sinn Féin is willing to facilitate this in a timely manner. We do not want another charade of a renewal vote and, therefore, we urge all Seanadóirí and the Minister of State to accept our amendments and put an end definitively to the theatrics of this annual vote.
I am grateful to the House for its consideration of the motions and thank all Senators for their contributions, especially those in support of the motions.
The very real threat to our society from dissident republican paramilitary groups and the brutality of ruthless crime gangs need an effective and particular response from the criminal justice system. As legislators, we have a duty to support An Garda Síochána and the justice system in tackling these threats. The Offences Against the State Acts have stood the test of time for 80 years, and it is important we take the time to consider carefully how best to proceed on foot of the work of the review group. It is imperative we do not do anything to undermine the efforts of the authorities with responsibility for countering paramilitary and criminal groups and protecting communities. Community safety must be at the centre of all our efforts.
I assure the House the Minister is fully committed to considering the package of recommendations from the majority of the review group and the perspective of the minority and returning to Cabinet with a full response in due course. To assist with this, she has, as I said earlier, asked her officials to consult other Departments, the Garda Commissioner, the Office of the Director of Public Prosecutions, the Courts Service and the Irish Human Rights and Equality Commission. The Minister intends also to take other two initiatives in the short term in response to the work of the review group. She will discuss with officials the work in train at the Department of Justice in regard to juries to identify any additional measures, short of non-jury trials, that might in certain cases mitigate the risk of intimidation or other interference.
Regardless of this important work, the threat from terrorist activity remains real and persistent, and serious organised crime continues to present a significant challenge. It is crucial the State have the capacity to deal effectively with those who seek to undermine it, and those involved in organised crime, especially the drugs trade, who inflict devastating damage on individuals, families and our communities. The renewal of these provisions clearly demonstrates we do not accept the activities of terrorists and organised crime groups and that we are determined to support An Garda Síochána and the criminal justice system in defeating them.
Amendment put:
The Seanad divided: Tá, 4; Níl, 24.
Tá
- Gavan, Paul.
- Hoey, Annie.
- Ó Donnghaile, Niall.
- Warfield, Fintan.
Níl
- Ahearn, Garret.
- Byrne, Malcolm.
- Casey, Pat.
- Cassells, Shane.
- Clifford-Lee, Lorraine.
- Craughwell, Gerard P.
- Cummins, John.
- Currie, Emer.
- Daly, Mark.
- Daly, Paul.
- Doherty, Regina.
- Gallagher, Robbie.
- Garvey, Róisín.
- Horkan, Gerry.
- McDowell, Michael.
- McGahon, John.
- McGreehan, Erin.
- Mullen, Rónán.
- O'Loughlin, Fiona.
- O'Reilly, Joe.
- O'Reilly, Pauline.
- O'Sullivan, Ned.
- Seery Kearney, Mary.
- Ward, Barry.
Tellers: Tá, Senators Niall Ó Donnghaile and Paul Gavan; Níl, Senators Robbie Gallagher and Joe O'Reilly..
Pursuant to Standing Order 57A, Senator Rebecca Moynihan has notified the Cathaoirleach that she is on maternity leave from 6th February to 18th August, 2023, and the Whip of the Fine Gael Group has notified the Cathaoirleach that the Fine Gael Group has entered into a voting pairing arrangement with Senator Moynihan for the duration of her maternity leave.Pursuant to Standing Order 57A, Senator Alice-Mary Higgins has notified the Cathaoirleach that she is on maternity leave from 19th June to 19th December, 2023, and accordingly has not voted in this division. Senator Ollie Crowe has notified the Cathaoirleach that he has entered into a voting pairing arrangement with Senator Higgins from 19th June to 19th August, 2023; and accordingly has not voted in this division.
Amendment declared lost.
Motion put and declared carried.
I move:
That Seanad Éireann resolves that section 8 of the Criminal Justice (Amendment) Act 2009 (No. 32 of 2009) shall continue in operation for the period beginning on 30th June, 2023 and ending on 29th June, 2024.
I move amendment No. 1:I move:
To delete all words after "Seanad Éireann" and substitute the following:
“:
- resolves that section 8 of the Criminal Justice (Amendment) Act 2009 (No. 32 of 2009) shall continue in operation for the period beginning on 30th June, 2023 and ending on 29th June, 2024; and
- calls on the Minister for Justice to bring forward legislation to give effect to the recommendations of the Independent Review Group as soon as possible.”.
I second the amendment.
Amendment put:
The Seanad divided: Tá, 4; Níl, 25.
Tá
- Gavan, Paul.
- Hoey, Annie.
- Ó Donnghaile, Niall.
- Warfield, Fintan.
Níl
- Ahearn, Garret.
- Blaney, Niall.
- Byrne, Malcolm.
- Casey, Pat.
- Cassells, Shane.
- Clifford-Lee, Lorraine.
- Craughwell, Gerard P.
- Cummins, John.
- Currie, Emer.
- Daly, Mark.
- Daly, Paul.
- Doherty, Regina.
- Gallagher, Robbie.
- Garvey, Róisín.
- Horkan, Gerry.
- McDowell, Michael.
- McGahon, John.
- McGreehan, Erin.
- Mullen, Rónán.
- O'Loughlin, Fiona.
- O'Reilly, Joe.
- O'Reilly, Pauline.
- O'Sullivan, Ned.
- Seery Kearney, Mary.
- Ward, Barry.
Tellers: Tá, Senators Niall Ó Donnghaile and Paul Gavan; Níl, Senators Robbie Gallagher and Joe O'Reilly..
Pursuant to Standing Order 57A, Senator Rebecca Moynihan has notified the Cathaoirleach that she is on maternity leave from 6th February to 18th August, 2023, and the Whip of the Fine Gael Group has notified the Cathaoirleach that the Fine Gael Group has entered into a voting pairing arrangement with Senator Moynihan for the duration of her maternity leave.Pursuant to Standing Order 57A, Senator Alice-Mary Higgins has notified the Cathaoirleach that she is on maternity leave from 19th June to 19th December, 2023, and accordingly has not voted in this division. Senator Ollie Crowe has notified the Cathaoirleach that he has entered into a voting pairing arrangement with Senator Higgins from 19th June to 19th August, 2023; and accordingly has not voted in this division.
Amendment declared lost.
Motion put and declared carried.
Cuireadh an Seanad ar fionraí ar 5.28 p.m. agus cuireadh tús leis arís ar 6 p.m.
Sitting suspended at 5.28 p.m. and resumed at 6 p.m.