Criminal Justice (Terrorist Offences) Bill 2002: Report and Final Stages.

Tuesday, 14 December 2004

Dáil Eireann Debate
Vol. 595 No. 2

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Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I move amendment No. 1:

The amendment proposes the inclusion of the legislation in a collective citation covering emergency legislation relating to domestic offences and offences expected to be committed by international organisations or an external element. As these Acts are of this nature, make amendments to the Offences Against the State Act and deal with the proceeds of crime and confiscation of the proceeds of crime — terrorist crime in this case — it is appropriate that they would all be cited as Offences Against the State Acts 1939 to 2004.

[298]The legislation under discussion goes back a long way. We had the initial framework document in 2001, the legislation was introduced in 2002 and now in the latter days of 2004 we are at the 11th hour. It is possible now to look at the legislation and the framework document and decision that preceded it from a more distant perspective than in the immediate aftermath of the tragic events of 11 September 2001. I am glad the legislation was not rushed through at that time. There are some occasions when it is good to leave legislation on the books for a while and this was one.

Much of this legislation is of an emergency nature. It will introduce offences against the State when we had reached the stage of reviewing such measures. We had hoped, especially with the possibility of a peace deal in Northern Ireland arising from the Good Friday Agreement, that we would review all emergency legislation. The Hederman committee produced a report on which action has not been taken, but some decision is required on it because it is part of the Good Friday Agreement from 1998. I had hoped we would try to eliminate some elements of this type of legislation rather than increase the corpus of emergency powers. However, we seem to be going in the wrong direction.

I notice that in the new Criminal Justice Bill we are again normalising what would be regarded as powers of detention. I remember the debate that took place in 1984 on the increase in the period of detention from six to 12 hours. When we pass the Criminal Justice Bill 2004, we will double that period to 24 hours.

This is emergency legislation and therefore should be cited appropriately rather than giving the impression that it is something less. It is also important that we review it periodically. We are passing substantial powers. While there is some justification for them, we do not have an assessment of that justification. We should have an assessment here and internationally. An international threat is not necessarily a domestic threat. However, that does not mean we should not be careful and take whatever measures are appropriate.

When we passed our offences against the State legislation in 1939, followed by amending legislation in 1992 and 1998, it was to deal with a domestic threat to the State. In this case it seems we are responding to a threat to other states, particularly the United States. Do we need the same level of protective measures as would be required in the United States? We need to do a full review and assessment of security in this country and examine where the threats lie.

I would welcome an explanation from the Minister in the form of a background assessment as to why we need anti-terrorism legislation as distinct from the current domestic legislation, the Offences Against the State Acts. What is the international threat to this country and from where does it come? Is the threat internal? Are there elements of it in the country, for example, [299]al-Qaeda or other organisations with terrorist contacts, engaging in or threatening terrorist activities? The definition of terrorism includes both the threat and the activity.

It would be useful for this House to know the Minister’s assessment from the information available in the Departments of Defence and Justice, Equality and Law Reform. He need not reveal confidential matters to provide this but let us know where we stand at this point. We see on CNN and Sky News the level of fear and the perception of the global threat of terrorism, but where do we stand? What is the threat to us and how does this legislation fit into the global context.

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  The Deputy is making a speech.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I wanted to argue that this legislation falls into the category of emergency or special legislation, such as offences against the State or anti-terrorism legislation, and should, therefore, be collectively cited as such.

Minister for Justice, Equality and Law Reform (Mr. McDowell): Information on Michael McDowell  Zoom on Michael McDowell  I undertook to examine this matter between Committee and Report Stages. The Office of Parliamentary Counsel advises that collective citation arises where an Act or set of Acts are being amended in a number of places but only arises where there are non-textual amendments. In other words, if a subsequent Act inserts new material into an earlier Act, the two are not cited together or the amending section is not cited because it effectively makes the change in the first Act. Therefore, it is not cited collectively with that Act. That is the technical reason I am advised against accepting this particular amendment.

I can understand this distinction. If there were a section in this Bill which said that the provisions of an earlier Act had a different meaning, or had an extended ambit or whatever, then, in those circumstances, if it were a non-textual amendment or a substantive law amendment which was new, there would be an argument for doing what the Deputy suggests. However, in the case of a textual amendment where the subsequent legislation merely inserts new material in the earlier Act, it is not normal to extend the citation for the earlier Act to include the subsequent legislation because we will not find anything in the latter which is independent of the first Act. In those circumstances, I do not propose to accept the Deputy’s amendment.

I do not want to go into a Second Stage speech but wish to say this. We have international obligations. We are part of a common space of freedom, security and justice in the European Union and are part of the global community. We also have a common travel area with the United Kingdom. It is incumbent on us to ensure that our law is as effective against international terrorists [300]as it is against domestic terrorists with domestic agendas.

This legislation is necessary to give effect to a number of obligations into which this State entered at international level in the form of agreements and conventions and which we voluntarily undertook as part of a global move against the use of terrorism to effect political change. From that point of view, the international terrorist situation is one we have undertaken to address. We cannot walk away from those undertakings now.

The Deputy may ask how stands the threat today. How stood the threat on 11 March in Madrid? Nobody saw it coming, but it struck out of the blue. I would hate it to be the case that this country was used as a platform to plan or to further an international terrorist cause and then to have to explain to fellow members of the international community that we had not got around to changing our law to give the Garda the right to take effective counter measures against the people in question. That would be a difficult thing to do. They could rightly consider it strange that we allowed a group of people in Dublin to plan a bombing in a European city and that we refrained from bringing measures into being which were as effective as if the bombing were to be carried out in our cities, or that we allowed organisations to operate in our midst which were as damaging to a fellow member of the European Union as they would have been had they been unlawful organisations working to subvert the Irish State.

We cannot have a double standard on this and, therefore, without going into any confidential information in my possession in regard to the level of international terrorist threat in Ireland, we are simply obliged to get on with this. Common sense dictates that we should not be out of line with the European Union.

From a micro-political point of view, I must attend Justice and Home Affairs Council meetings of the European Union, and a number of the provisions of the Bill are obligations which I solemnly undertook to bring about when holding the Presidency of that Council. I am not in a position to walk away from those commitments and to say that I have lost interest in the fight against terrorism. The political cost would be enormous if something were to go wrong and Ireland were implicated in a major terrorist atrocity or outrage in Europe. That is a responsibility I do not wish to bear. For that reason I thank Opposition spokespersons for facilitating me in getting the legislation through this House in this session because if we do not get it through the House this session and something does go wrong in January, February or March of next year, I and this House collectively will face the wrath of the international community for failing to act in the matter.

Amendment put and declared lost.

[301]An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Amendment No. 3 is an alternative to amendment No. 2 and they will be discussed together by agreement.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I move amendment No. 2:

Deputy English’s amendment repeats a Committee Stage amendment tabled by Deputy Jim O’Keeffe. That amendment sought to delete the commencement provision in section 2 in its entirety so that the Act would come into operation on its enactment. I understand and share Deputy English’s and Deputy O’Keeffe’s interest in seeing this legislation come into force without delay and, with one exception, the amendment in my name provides for that. The one exception is section 32. The financial institutions have advised they need some lead-in time to enable them to be ready to implement their obligations under that section. I consider that a reasonable request and am satisfied that my response to it is also reasonable.

Section 32 brings the offence of financing terrorism within the scope of the provisions which already impose obligations on banks and other financial bodies to take certain measures to prevent and assist in the detection of money laundering. These measures involve, among other things, the training of directors, officers and employees of banks and other institutions for the purposes of enabling them to identify transactions which may relate to the commission of such offences and, therefore, I have provided a period of four months from the date of the passing of the legislation before section 32 comes into operation.

In commending amendment No. 2 to the House, I thank Deputies O’Keeffe and English for bringing this matter to my attention in the first place.

Mr. English: Information on Damien English  Zoom on Damien English  I accept the Minister’s explanation. Four months is probably a little too long but I accept it is probably the best that can be done by the financial institutions. However, the Minister referred to the problems that could be caused in January, February or March if the legislation is not implemented and there is a contradiction in this regard.

Amendment agreed to.

Amendment No. 3 not moved.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I move amendment No. 4:

Sinn Féin is opposed to the legislation because, as I said on Committee Stage, it is a human rights disaster waiting to happen. The amendment is a very specific one which I debated with the Minister on Committee Stage. It would be preferable to call this Bill an Act to allow for the introduction of draconian measures because the State’s Human Rights Commission has recommended against it. The proposed legislation goes well beyond the requirements of the EU framework decision on combating terrorism and also conflicts with Ireland’s international obligations in regard to the protection of civil and political rights. I would have offered this amended title except that the Ceann Comhairle would have ruled me out of order on the grounds of derision, as he has done when I recommended other titles which best reflected the purpose of the legislation being debated.

Everything about the Bill is fundamentally flawed, from the hasty and unaccountable process whereby the framework decision was thrown together in response to a written request from the US President, George Bush, to the unacceptably broad wording of the common definition itself, which the Minister conceded on Committee Stage. The legislation copperfastens existing repressive legislation that has been the subject of international criticism and was also the subject of criticism by our Human Rights Commission and the respected jurists and legal minds of the Hederman committee which was empowered to review it as a consequence of the Good Friday Agreement.

I tabled legislation to repeal the Offences Against the State Acts in June this year because, as Deputy Costello said, we should be getting rid of this type of legislation as part of the normalisation process under the peace process, not adding to the body of draconian laws at this stage. It is unfortunate that the Minister has decided to move in the opposite direction to which everybody signed up in the Good Friday Agreement.

The framework decision and the process that led to it were fundamentally flawed. I am not alone in this belief. For this reason, we should not rush the Bill through at the last minute as the Minister proposes. It is not right that we have less than 90 minutes to debate a Bill of 111 pages, incorporating 66 sections, seven Schedules and 36 [303]new ministerial amendments, many of which are substantive and which the Opposition only had sight of this morning. Why the familiar last minute rush when the Bill was published two years ago and Second Stage concluded a year ago?

In a memorandum from the Chief Whip’s office dated almost three weeks ago, it was stated that the Minister would contact Opposition spokesperson’s offices to explain his reasons for the rush. He did not contact me up to today. The Minister’s urgent rush on legislation this long and complex which concerns the curtailment of fundamental rights is unacceptable. I contend that the urgency is manufactured and that the real intention is to suppress debate on this important Bill with significant implications.

Given the depth and scope of concerns raised by the Human Rights Commission, Ireland should not rush to incorporate the framework decision into law but instead we should refuse and let the Commission take us to the European Court of Justice so that we can argue these points on behalf of the Irish people and all Europeans. As a result of the Minister’s approach I have made no substantial effort to table comprehensive amendments. Instead, I propose a few critical changes that reflect the concerns of the Human Rights Commission and the Irish Council for Civil Liberties, to which the Minister has essentially refused to respond. Among other provisions, amendment No. 4 proposes that this legislation shall cease to be in operation after one year, unless a resolution has been passed by both Houses of the Oireachtas resolving that it shall continue in operation.

I have taken this approach because I examined the statements of the human rights organisations such as the Irish Council for Civil Liberties and the Irish Human Rights Commission as well as the detailed report of the Hederman committee. As Deputy Costello pointed out, we should examine the report and legislate to address the concerns raised by it. We should also listen to the dissenting views of many eminent people on the Hederman committee about the Offences Against the State Acts — the very reasonable views of Professor Dermot Walsh, Mr. Justice Hederman and Professor William Binchy should be considered.

I read the correspondence which I received from these groups and tabled a number of amendments based on their comments. If the amendments are not taken on board, Sinn Féin will vote against this legislation because the necessary safeguards of human rights are not provided for in the Bill as presented. Moreover, the Bill undermines human rights and should not be presented to the House in any shape or form; we should legislate for the opposite position. In April I received a letter from the Irish Council for Civil Liberties, which contained a detailed examination of the legislation, accurately outlining some of the flaws of the legislation.

[304]An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  The Deputy should confine himself to debate on amendment No. 4.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  Amendment No. 4 is concerned with ceasing the operation of this legislation after one year. The reason for this, unless the House decides otherwise, is that it is common practice in terms of repressive legislation and has been common practice in the House in the past. Sunset clauses are provided for to ensure that such draconian laws do not become part of the legislation of the State. No democratic State should have repressive legislation as part of the body of its permanent law, which is what I seek to prevent by tabling this amendment. When this happens, the democratic credentials of the State become questionable.

The Sinn Féin amendment would allow a review of the operation of this legislation after one year by providing that the legislation would cease to be in operation after one year, unless a resolution has been passed by the Houses of the Oireachtas resolving that it shall continue in operation. It also provides that resolutions under subsection (3) shall be preceded by a full parliamentary debate which shall not be taken prior to the publication of the report under subsection (5), which will be the independent review of its operation to be conducted by the Human Rights Commission, the results of which will be published and laid before the Houses of the Oireachtas not less than 30 days prior to the date on which the legislation is due to lapse under subsection (3).

The Irish Council for Civil Liberties raised issues in regard to safeguards and time limits provided for in the legislation. It noted that the Bill does not provide for a requirement that it be subject to regular review and periodic renewal by the Oireachtas. It stated that such a provision would, at a minimum, seem to be required by international law, whereby derogations from normal legislation should be periodically reviewed to determine when they are necessary and continue to be a proportionate response to the established and verifiable threat. The ICCL also referred to many other issues in regard to the legislation, to which we can return at a later stage.

The Irish Human Rights Commission also made a detailed submission and I would like to know how many of its recommendations the Minister has taken on board. Has he made any particular changes which give effect to the concerns it raised, in particular those addressed in amendment No. 4 on a review and the provision of a sunset clause? My reading of the Bill is that these are not provided for.

The report of the Irish Human Rights Commission has a section on the annual review. I presume the Minister received the report, although I do not know whether he took the time to read it. I hope he did and perhaps he will elaborate on why he turned down the IHRC’s reasonable requests and recommendations that, given the [305]controversial nature of this Bill and the sweeping powers it confers on the Garda Síochána and the courts, it be reviewed annually by an independent expert. Such a review would consider whether the legislation was still necessary and whether any aspects of it disproportionately infringe the rights of those affected by it. The review should be published promptly on completion and should be considered during the periodic debates we have suggested on whether the legislation should be renewed. The IHRC has called for such periodic reviews on this basis but they are not provided for in the legislation, which amendment No. 4 seeks to address.

The IHRC also points out that previous legislation, for example, the Offences Against the State Acts, can lapse unless it is extended or revived for further periods of three months at a time, as provided for in sections 52 and 53. It is not uncommon to have such a renewal process for justice legislation, particularly legislation of this type which seeks to undermine human rights in this House and beyond, including in the European Union, if the Minister’s proposals are tied to the framework decision.

The Irish Council for Civil Liberties is not some fringe group. It was founded by very eminent people, such as Kader Asmal and Mary Robinson, who still struggle against such legislation and the Minister’s agenda and have done a great service to the nation. The submission of the ICCL reflects the standards set down by such people.

  6 o’clock

The intent of the amendment is to provide, in terms of the process in which we engage, that we do something similar every second year as provided for in certain sections of the Offences Against the State Act 1998. That has been regular practice in the past in respect of legislation. There is nothing unusual or unreasonable about the sunset clause which I have recommended and for which the Irish Human Rights Commission and ICCL have called. This, for me, is the bottom line. I cannot and will not support a Bill which does not take on board this amendment.

Subsection (4) of the amendment seeks to ensure debate in this House is mandatory and to prevent the suppression of debate, which regularly occurs given the Minister for Justice, Equality and Law Reform in particular is more concerned about the volume rather than the quality of legislation passed. It also seeks to prevent guillotines which are routinely——

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  The Deputy should confine his remarks to amendment No. 4.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I am speaking to amendment No. 4, part of which reads: “Resolutions under subsection (3) shall be preceded by a full parliamentary debate, which shall not be taken prior to the publication of a report under subsection (5).” This legislation is being rushed and we are all aware of the effects of rushed legislation. [306]The amendment proposes that there be a full parliamentary debate, which shall not be taken prior to the publication of a report. Given that under this legislation we would be aware of the date on which the Act would lapse, such debate could be properly planned. It is in the public interest that that is done. No reasonable person on either side of the House would oppose late or additional sittings to ensure the matter is debated.

I want to ensure that the operation of this legislation is thoroughly, critically and independently examined in contrast to the bare-bones reports which the Minister collates with the Garda Síochána. Such reports do not involve critical analysis, the specifics of which are so aggregated as to be nonsensical. Members of this House have a right to know what the evidence states about whether the legislation is necessary, effective or human rights compliant at any given time. We have a responsibility to monitor political conditions and to insist, where objective conditions do not warrant the operation of this law, where it is ineffective in practice for the purpose of increasing public safety or where the law does not effectively balance human rights protection, that it be struck down.

The final part of amendment No. 4 states: “The Act shall be subject to an annual independent review of its operation, to be conducted by the Human Rights Commission, [a body set up under the British Irish Agreement, which is independent of this House and has given much time to dealing with legislation] the results of which shall be published and laid before the Houses of the Oireachtas no less than 30 days prior to the date on which the Act is due to lapse under subsection (3).” This provision will allow the Irish Human Rights Commission to do the job for which it was established and for which it should be properly funded. It also allows it to do its job by informing legislators and the public of the impact of the law. The 30 day minimum time limit for publication of the report not only allows legislators to give it due consideration but allows it to reach the public domain and to become the subject of public debate in the media and elsewhere. Such mechanisms enhance democracy. The Bill as drafted provides no recourse to independent reviews or full annual parliamentary debate. There is also no possibility the legislation will lapse each year without the passing of a resolution by the House.

We have all seen the effects of repressive legislation. This is yet more legislation which does not require to be enacted. The Irish Human Rights Commission and ICCL stated that this legislation should be enacted on a temporary basis only. It should be passed with the covenant that it will lapse when the situation so requires or, at the very least, that it should be reviewed. The IHRC in its submission stated that a substantial body of anti-terrorism legislation already exists, in the main the Offences Against the State Acts 1939 to 1998, and that the Government, under the British-Irish Agreement, committed itself to a wide-ranging review of these Acts with a view to [307]reforming and dispensing with those elements no longer required as circumstances permit. The committee established to carry out that review, the Hederman committee, reported in May 2002.

In the circumstances and while recognising the obligation to implement the EU framework decision, the Irish Human Rights Commission believes that, before drafting this Bill, the Government should have assessed the level of threat from international or transnational terrorist groups and the extent to which that threat and the obligations imposed by the framework decision could be met by existing legislation. In its view, many of the requirements of the framework decision are met by existing law. A number of new provisions introduced by this Bill go further than are strictly required by the framework decision, a matter with which we will deal under other amendments.

The Irish Human Rights Commission further stated that the Bill significantly extends police and other law enforcement powers and in its essence, emergency legislation——

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  The Deputy is being repetitive.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I am reading what the Human Rights Commission had to say on the Bill.

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  The Deputy should confine his remarks to amendment No. 4. He appears to be making a Second Stage speech.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I am dealing specifically with the amendment. The Irish Human Rights Commission states that in its view such legislation should only be introduced when a strong case has been made for it. Such legislation should have strict time limits and include provisions for a review, otherwise it will soon become part of the permanent law of the State. It suggests that the legislation should lapse after a specified period, as provided for in the amendment, of one to three years unless renewed by a vote of the Oireachtas, also provided for in the amendment, that an independent review of its operations be carried out annually and that the report of the review be debated by the Oireachtas.

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  The Deputy is being repetitive.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  No, I am not.

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  I have heard the Deputy make that point already.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I may have done so earlier but I am now stating what the Irish Human Rights Commission had to say on the matter. The amendment is informed by the Irish Human Rights Commission, the Hederman committee and a submission which Sinn Féin made in 1999 [308]to that committee to review the Offences against the State (Amendment) Act 1998. We believe our repressive and draconian legislation should be subject to annual review by way of full debate in this House. I ask the Minister to take on board these concerns. He has acknowledged in committee that sunset clauses exist and stated that he could not include this provision as we were dealing with EU legislation. That statement contradicts the supposed rights we in Ireland have in terms of our sovereignty in matters of judicial and criminal affairs.

This is a framework decision which, if fully implemented, will undermine the little sovereignty we have left in these areas. It should be rejected or, at least, the conditions I have requested should be put in place. At a later date, it can lapse when the conditions are right in Irish, European and international affairs. If the Bill’s provisions are allowed stand, as the European Union moves towards a fortress Europe, at a later stage we will not have the opportunity to undo the damage. I recommend acceptance of the provisions of this amendment.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I cannot see us reaching amendment No. 72 this evening. The amendment raises a serious issue. I received the same documentation as Deputy Ó Snodaigh from the Irish Human Rights Commission and the Irish Council for Civil Liberties. Both express concern about the extra powers to be granted in this new emergency type legislation and that it could be oppressive in its operation. Both propose a mechanism whereby a report would be made on the operation of the legislation each year. On that basis, the Oireachtas would determine whether the legislation was working effectively and if it needed to be amended, done away with or continued. That is an appropriate proposal.

It must be remembered that this Bill will amend the Offences Against the State Acts. In 1998, after the dastardly and tragic act in Omagh, the Oireachtas agreed to an annual review of the existing legislation with a report from the Garda Commissioner on the Act’s workings. The Irish Human Rights Commission believes the report should come from an independent source. Last week, the Garda report on the workings of the seven day detention provisions was skimpy, revealing that some aspects of the legislation were not operated. Special legislation must not be passed for effect or to fulfil our international duty. I accept that we have an obligation to the EU framework decision but it is up to us to implement it in accordance with our domestic legal norms. We do not have to be slavish in the implementation of the decision as it can be adjusted.

On Committee Stage, the British definition of terrorism was requested, yet we only received it today. That definition is worse than ours.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Deputies will be glad I am the Minister.

[309]Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  We thought the Minister was bad, but they are awful. The definition includes provisions such as the attempt to influence the Government or to intimidate the public or a section of it. The Dáil Chamber is bad enough as we can be seriously intimidating and we are only attempting to influence the Government. The language in this definition is inaccurate.

I appreciate the Minister tabling amendments which will tone down considerably certain provisions in this regard. Amendment No. 22 will exclude individuals engaged in any protest, advocacy or dissent, strikes, lock-out or other industrial action. I welcome the provision that these activities cannot be deemed terrorist offences. I also welcome amendment No. 23 that provides for the exclusion of an individual from the definition who is determined by the Attorney General to have had the intention of compelling the government of a state to perform or abstain from a certain act or from seriously destabilising or from destroying the fundamental political, constitutional economic or social structure of such a state. I acknowledge these proposed caveats in the Bill. How to legislate for the serious intimidation of a population is, however, beyond me. Some caveat must be introduced to determine when and how this could happen.

In 1998, a good principle was established in having a report on the workings of legislation presented to the Oireachtas for it to determine whether the legislation should continue in operation. The Minister has indicated that we should dispense with this practice, making legislation permanent. I do not agree because we have had an abundance of special legislation since 1939, which has been added to all the time. After the Good Friday Agreement, a solemn commitment was made to examine emergency legislation with a view to normalisation as much as possible rather than going further down the road of special powers. However, we are now introducing a new set of special powers, similar to existing special legislation.

The amendment proposes that this legislation will be reviewed annually. Why can there not be a single annual review of all special legislation from 1939 on in the context of the Good Friday Agreement and, hopefully, a near future deal on the North with decommissioning on the cards? The Minister is to the forefront in claiming that what is happening now is not of a political nature but a criminal one. The law of the land, therefore, should be the mechanism used. The further we go down that road, the better. Such an approach would be welcomed by the Garda. The review should be encapsulated with one single debate on all special legislation, whether domestic, such as the Offences Against the State Acts, or arising from the international threat of terrorism.

If a report on the workings of the special legislation were presented to the Oireachtas, one day a year could be set aside for debate to determine whether any aspects of the legislation needed to be amended, deleted or strengthened rather than [310]simply passing legislation and leaving it on the Statute Book willy-nilly. Otherwise we may never know what aspects of it are or are not being used by the Garda and the thrust of the legislation may be lost.

If we go to the trouble of implementing a European Union framework document, which the Minister indicated is part of our international obligations, and the European Council deals with these matters in a European context, it is important for the Minister to be able to go to Europe and say we passed the Bill last year and how it is operating in Ireland. He should be able to ask how it is operating in other countries, whether a review of the legislation been carried out, if it is useful legislation, whether we hit the nail on the head or whether we put in place measures that were ineffective and unworkable and need to redress the situation, and whether we have gone overboard and found that its operation infringes civil liberties as the Commission on Human Rights and the Irish Council for Civil Liberties believe may happen.

I find merit in the amendment tabled by Deputy Ó Snodaigh but I do not necessarily believe it should be in this format. A number of formats could be used, but the principle of periodic review, debate and decision in this House is desirable and would be welcome.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I listened carefully to the points made repeatedly on the amendment. I indicated to Deputy Ó Snodaigh on Committee Stage that I am not agreeable to what might be termed a sunset clause for the Bill. This Bill will become a semi-permanent feature of legislation. No legislation is permanent in the sense that it cannot be changed, but this Bill is intended to be a standing part of our legislation. I remind Deputy Ó Snodaigh that the central purpose of the Bill is to give effect to our international obligations under the UN conventions on terrorism and the EU framework decision on combating terrorism. Therefore, it is not appropriate to introduce a sunset clause into the Bill, as suggested in the amendments. Whatever about a review of its operation, to say that Ireland’s response to a permanent international law obligation will cease periodically is inappropriate. The Bill is necessary because we live in a world where international terrorism is on the march. We know people are willing to do terrible things in pursuit of their political ends. There is no point codding ourselves or hoping that Ireland can opt out of the global reality. These threats are real.

I was critical of the looseness of the language and the phraseology of the framework decision which was put to this House before any of us were elected to it. It was approved of and received the prior assent of this House as a framework decision by which process this House and the other House obliged Ireland to implement it. One can argue the toss as to whether the decision should have been made, but it was made. The old story of the Kerryman who said he would not [311]start from here when asked for directions may be applicable in this case. In the aftermath of the 11 September 2001 atrocity, this House and the other House undertook as part of our obligations under the European Union treaties to enact a law in conformity with the framework decision. We also signed UN conventions which we are free not to live up to if we wish. We can denounce them and walk away from our international obligations, but imagining that these obligations under EU and UN law cease to exist periodically is not a viable way of approaching this subject.

We must face up to the fact that it is perfectly conceivable that plans will be put in place by people in Ireland to carry out terrorist threats elsewhere in the world. It is by no means a fanciful thought. The question we must ask ourselves, should it eventually come to pass, is whether we did anything about it and whether the Garda Síochána was given the powers to arrest, detain and question people on these matters on the same basis as if the terrorism were directed towards our own State. Deputy Ó Snodaigh said that, under the Good Friday Agreement, there is an obligation to review the Offences Against the State Act and that review is carried out in good faith. One does not have to be Einstein to remember that those who participated in the Good Friday Agreement thought paramilitary activity in Ireland would come to a rapid halt shortly after the Agreement was entered into in Belfast in 1998. It is sometimes uncomfortable for people to remember that it was part of the Agreement, even though the language could have been tighter, that the parties to it would use their best endeavours to ensure that all arms would be decommissioned within two years of its signature. What happened to that? Nothing happened.

It would be foolish of us in this House to think for one minute that there is not still a domestic terrorist threat. Recently, a group of people who were caught at Inniskeen, County Monaghan, assembling a bomb with 1,200 pounds of explosives received sentences of up to ten years’ imprisonment in the Special Criminal Court. What possible use could that activity have had except terrorism? More recently, the Garda informed me that it caught individuals in possession of timing devices driving within the country with a view to committing further offences. It is not as if the threat has diminished. The threat still exists. In these circumstances, I must deal with that threat. It is not repressive to have a legal framework to deal with the threat because, to coin a phrase, the threat has not gone away. The people who are carrying on these activities would be wholly unimpressed if I were to repeal the Offences Against the State Acts in their entirety. They would laugh at me and get on with their business. It is not a choice which is open to me.

Parts of the Offences Against the State Acts are temporary in nature and depend on Government proclamations and so on. However, other parts of them are permanent. The State must [312]have protection in law. It will always be an offence against the Irish State to establish an unlawful organisation, advocate the overthrow of the State or the resistance of the power of the State or hold rallies in a way which would compromise the independence of these Houses in the way that happened in the 1930s. These are permanent aspects of our law.

I agree that provisions such as internment and the use of the Special Criminal Court depend on factual matrices coming into existence which justify the deployment of those powers, but they are not repressive on that account. They are simply a response to a situation which exists as a matter of fact. The word “repressive” when used by Deputy Ó Snodaigh is technically correct. The provisions are in place to repress subversion. If the word is used in its pejorative sense, it is a response to armed aggression against the democratic institutions of the Irish people. Accordingly, I do not believe it is appropriate to categorise the Offences Against the State Act as emergency legislation. Such Acts are not emergency legislation, properly so called. Those such as that which followed the Omagh bombing which have a requirement for repeated renewal if they are to remain in existence may have been intended as an ad hoc response to a set of circumstances, but that does not make them repressive in the pejorative sense of the term. It just means that they are proportionate responses to a lethal force or tendency within society.

When Deputy Ó Snodaigh argues for a sunset clause to be put in this legislation, he argues that Ireland should opt out of the framework decision periodically or alternatively that we must keep repeating new legislation in this House virtually every year. We have enough to do in this House. Repeating this Bill is not an appropriate way to deal with matters. I do not accept the amendment.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  As the Minister says, we have enough to do in this House without repeating legislation. As I said initially, this type of legislation is emergency legislation. We all live in hope that any emergency that might happen will not continue for any length of time, but since the Offences against the State Act was enacted in 1939, it looks like we are in a permanent state of emergency.

We should be entitled in this House to deal with this type of legislation on an ongoing basis until such time as is it is deemed by the elected representatives of the people not to be required any longer. The easiest way of doing that is to force us to review and debate such legislation on an ongoing basis. Otherwise it becomes a permanent feature of our law, we become complacent, the legislation is accepted and we may then move on to the next legislation which might come from Europe with its range of demands on national legislators to tighten up and create fortress Europe.

[313]The European drive, backed by the US, towards increasingly repressive legislation has not been effective and can never be so. The most effective way of dealing with conflict throughout the world is to tackle its causes and to tackle the issues on a basis of human security. That this is, as the Minister said, binding on us in some way because it involves international obligations does not make it right. We need to undo the mistake this House made when it discussed the framework decision. The Minister said that this House accepted it. There was a cursory Dáil debate of only an hour on the issue. We did not have a substantial debate on the matter in the House. I was not present.

An Leas-Cheann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  The Deputy is only allowed to speak for two minutes.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I have said all I wanted to say. The presence of international obligations does not make this matter right. At some stage, nation states must take a stand, and this is one of the issues on which we should take a stand.

Mr. Costello: Information on Joe Costello  Zoom on Joe Costello  I have a question related to the notes given to us by the Department of Justice, Equality and Law Reform on the British definition of terrorism and the interpretation of it in British legislation. Regarding temporary legislation, the notes say that the Prevention of Terrorism (Temporary Provisions) Act 1989 and the Northern Ireland Emergency Provisions Act 1996 will cease to have effect. In their implementation of the legislation, the British authorities rescind some existing legislation on their statute books. They have abolished the emergency legislation which they had on a temporary basis. I would be interested to know the context. They are presumably interpreting the legislation before us as covering Northern Ireland and any threat which might come from these shores. That seems to be the thrust of the matter. I understand that there is also other legislation related to the prevention of terrorism. How stands the special legislation dealing with Northern Ireland which was introduced following the Troubles there over the past three decades.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  As I understand it, Britain’s Terrorism Act 2000 is intended to be a permanent part of British legislation and to provide a permanent framework within the United Kingdom for dealing with terrorism. The single page with the definition, which was handed to Deputy Costello, may be slightly misleading because the Act is very substantial. It deals with proscribed organisations, membership of them, support for them, uniforms, terrorist property, fund-raising use and possession, funding arrangements, money laundering, disclosure of information about terrorism and the like, and with the seizure of terrorist cash. These issues are all part of our law too. The Act also deals with terrorist investigation, power to cordon off and designate areas, the duration of [314]the provisions, information and evidence, suspected terrorists and their arrest without warrant, duration of the authorisations, and powers to stop and search. It also deals with terrorist offences, directing terrorist organisations — which is part of our law — possession for terrorist purposes of information, collection of information, inciting terrorism overseas, terrorist bombing and jurisdiction in that regard. It also has special provisions relating to Northern Ireland.

This is not a temporary provision. The United Kingdom has put into its law a comprehensive anti-terrorism law. We have taken a different approach. We have taken parts of the Offences against the State Act and married new provisions to them.

Deputy Costello might note that the United Kingdom’s definition of terrorism is not as bad as might be thought. For something to qualify as terrorism it must come under section 1(i)(a), (b) and (c). That is a cumulative requirement for the action in question. It is not as if it is radically different from anything we have proposed in this House.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  Even at this late stage, I again urge the Minister to accept the amendment. This is not just about the Bill as a whole. Taking the Bill as a whole, new powers are being introduced which are not, and were not, part of the framework decisions. The framework decisions were intended to afford discretion to legislators and as such we had an opportunity. The Minister is correct in saying there was a debate in this House. As I said, it was a cursory debate, lasting only an hour. As a Parliament, we can, if we so decide, undo that debate and signal accordingly to our partners in Europe, having given it the proper consideration and allowed the time to lapse in which to view the world from a different viewpoint rather than from the emergency blinkered outlook that followed 11 September 2001.

The rush to pass emergency temporary legislation to deal with terrorist threat dated from that time. At this remove we have the opportunity to say enough is enough and that we have the Offences Against the State Act, which is more than capable of dealing with the issues and problems which I hope will not arise. The Offences Against the State Act is almost a permanent fixture on the Statute Book at this stage after its temporary introduction, originally, in 1939 and the changes that occurred afterwards. In fact one section of the Act was so temporary in nature that it was scheduled to lapse after three months, yet that section is being reintroduced.

  7 o’clock

The original debate on the Offences Against the State Act shows that it was to be an emergency provision to establish the Special Court in Green Street. In fairness to the late Deputy William Norton of the Labour Party, he argued at the time that no circumstances could justify the introduction of this unusual type of legislation. That is what it is. It is not normal day-to-day legislation [315]and, therefore, we should treat it differently. We should treat it as a temporary measure and put it to the test of these Houses, in my view, on an annual basis but in the opinion of the Human Rights Commission, on a three-yearly basis. People should see a review of the process on an ongoing basis so that they can accept or otherwise the suspension of some of their rights on the basis that it is for the best. If the suspension of these rights is not acceptable, the people should be able to demand of parliamentarians a change in the law, bringing it back to normal legal standards. That is what we are looking for.

All the legislation I call repressive, which the Minister has contradicted, has been criticised by various international groups. We have been [316]found wanting in that area in terms of the European Court of Justice and other bodies which have criticised our temporary repressive legislation, namely, the Offences Against the State Act. We keep adding bits to it so that eventually we will have on our Statute Book some of the most repressive legislation available to any government. I hope the Government will never have to give effect to what already exists and what it is now proposing. Some of the provisions of the Bill go well beyond anything which a democratic society should contemplate. That is why I have argued that this should be a temporary measure and not a permanent feature of our law, which cannot be undone in the future.

Amendment put.

[315]The Dáil divided: Tá, 30; Níl, 64.

Information on James Breen  Zoom on James Breen  Breen, James. Information on Thomas P. Broughan  Zoom on Thomas P. Broughan  Broughan, Thomas P.
Information on Joan Burton  Zoom on Joan Burton  Burton, Joan. Information on Michael Collins  Zoom on Michael Collins  Collins, Michael.
Information on Joe Costello  Zoom on Joe Costello  Costello, Joe. Information on Jerry Cowley  Zoom on Jerry Cowley  Cowley, Jerry.
Information on Sean Crowe  Zoom on Sean Crowe  Crowe, Seán. Information on Martin Ferris  Zoom on Martin Ferris  Ferris, Martin.
Information on Eamon Gilmore  Zoom on Eamon Gilmore  Gilmore, Eamon. Information on Tony Gregory  Zoom on Tony Gregory  Gregory, Tony.
Information on Joe Higgins  Zoom on Joe Higgins  Higgins, Joe. Information on Michael D. Higgins  Zoom on Michael D. Higgins  Higgins, Michael D.
Information on Brendan Howlin  Zoom on Brendan Howlin  Howlin, Brendan. Information on Kathleen Lynch  Zoom on Kathleen Lynch  Lynch, Kathleen.
Information on Finian McGrath  Zoom on Finian McGrath  McGrath, Finian. Information on Liz McManus  Zoom on Liz McManus  McManus, Liz.
Information on Arthur Morgan  Zoom on Arthur Morgan  Morgan, Arthur. Information on Caoimhghín Ó Caoláin  Zoom on Caoimhghín Ó Caoláin  Ó Caoláin, Caoimhghín.
Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  Ó Snodaigh, Aengus. Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  O’Sullivan, Jan.
Information on Séamus Pattison  Zoom on Séamus Pattison  Pattison, Seamus. Information on Willie Penrose  Zoom on Willie Penrose  Penrose, Willie.
Information on Ruairí Quinn  Zoom on Ruairí Quinn  Quinn, Ruairí. Information on Pat Rabbitte  Zoom on Pat Rabbitte  Rabbitte, Pat.
Information on Seán Ryan  Zoom on Seán Ryan  Ryan, Seán. Information on Joe Sherlock  Zoom on Joe Sherlock  Sherlock, Joe.
Information on Róisín Shortall  Zoom on Róisín Shortall  Shortall, Róisín. Information on Emmet Stagg  Zoom on Emmet Stagg  Stagg, Emmet.
Information on Mary Upton  Zoom on Mary Upton  Upton, Mary. Information on Jack Wall  Zoom on Jack Wall  Wall, Jack.



[315]Níl
Information on Dermot Ahern  Zoom on Dermot Ahern  Ahern, Dermot. Information on Michael Ahern  Zoom on Michael Ahern  Ahern, Michael.
Information on Barry Andrews  Zoom on Barry Andrews  Andrews, Barry. Information on Johnny Brady  Zoom on Johnny Brady  Brady, Johnny.
Information on Martin Brady  Zoom on Martin Brady  Brady, Martin. Information on Seamus Brennan  Zoom on Seamus Brennan  Brennan, Seamus.
Information on Joe Callanan  Zoom on Joe Callanan  Callanan, Joe. Information on John Carty  Zoom on John Carty  Carty, John.
Information on Donie Cassidy  Zoom on Donie Cassidy  Cassidy, Donie. Information on Mary Coughlan  Zoom on Mary Coughlan  Coughlan, Mary.
Information on Brian Cowen  Zoom on Brian Cowen  Cowen, Brian. Information on John Cregan  Zoom on John Cregan  Cregan, John.
Information on Martin Cullen  Zoom on Martin Cullen  Cullen, Martin. Information on John Curran  Zoom on John Curran  Curran, John.
Information on Noel Davern  Zoom on Noel Davern  Davern, Noel. Information on Noel Dempsey  Zoom on Noel Dempsey  Dempsey, Noel.
Information on John Dennehy  Zoom on John Dennehy  Dennehy, John. Information on Jimmy Devins  Zoom on Jimmy Devins  Devins, Jimmy.
Information on John Ellis  Zoom on John Ellis  Ellis, John. Information on Frank Fahey  Zoom on Frank Fahey  Fahey, Frank.
Information on Michael Finneran  Zoom on Michael Finneran  Finneran, Michael. Information on Dermot Fitzpatrick  Zoom on Dermot Fitzpatrick  Fitzpatrick, Dermot.
Information on Seán Fleming  Zoom on Seán Fleming  Fleming, Seán. Information on Mildred Fox  Zoom on Mildred Fox  Fox, Mildred.
Information on Pat the Cope Gallagher  Zoom on Pat the Cope Gallagher  Gallagher, Pat The Cope. Information on Jim Glennon  Zoom on Jim Glennon  Glennon, Jim.
Information on Noel Grealish  Zoom on Noel Grealish  Grealish, Noel. Information on Seán Haughey  Zoom on Seán Haughey  Haughey, Seán.
Information on Máire Hoctor  Zoom on Máire Hoctor  Hoctor, Máire. Information on Joe Jacob  Zoom on Joe Jacob  Jacob, Joe.
Information on Cecilia Keaveney  Zoom on Cecilia Keaveney  Keaveney, Cecilia. Information on Billy Kelleher  Zoom on Billy Kelleher  Kelleher, Billy.
Information on Peter Kelly  Zoom on Peter Kelly  Kelly, Peter. Information on Tony Killeen  Zoom on Tony Killeen  Killeen, Tony.
Information on Seamus Kirk  Zoom on Seamus Kirk  Kirk, Seamus. Information on Tom Kitt  Zoom on Tom Kitt  Kitt, Tom.
Information on Brian Joseph Lenihan  Zoom on Brian Joseph Lenihan  Lenihan, Brian. Information on Tom McEllistrim  Zoom on Tom McEllistrim  McEllistrim, Thomas.
Information on John McGuinness  Zoom on John McGuinness  McGuinness, John. Information on Micheál Martin  Zoom on Micheál Martin  Martin, Micheál.
Information on John Moloney  Zoom on John Moloney  Moloney, John. Information on Donal Moynihan  Zoom on Donal Moynihan  Moynihan, Donal.
Information on Michael Moynihan  Zoom on Michael Moynihan  Moynihan, Michael. Information on M. J. Nolan  Zoom on M. J. Nolan  Nolan, M. J.
Information on Éamon Ó Cuív  Zoom on Éamon Ó Cuív  Ó Cuív, Éamon. Information on Seán Ó Fearghaíl  Zoom on Seán Ó Fearghaíl  Ó Fearghail, Seán.
Information on Charlie O'Connor  Zoom on Charlie O'Connor  O’Connor, Charlie. Information on Liz O'Donnell  Zoom on Liz O'Donnell  O’Donnell, Liz.
Information on John O'Donoghue  Zoom on John O'Donoghue  O’Donoghue, John. Information on Dennis O'Donovan  Zoom on Dennis O'Donovan  O’Donovan, Denis.
Information on Noel O'Flynn  Zoom on Noel O'Flynn  O’Flynn, Noel. Information on Batt O'Keeffe  Zoom on Batt O'Keeffe  O’Keeffe, Batt.
Information on Ned O'Keeffe  Zoom on Ned O'Keeffe  O’Keeffe, Ned. Information on Fiona O'Malley  Zoom on Fiona O'Malley  O’Malley, Fiona.
Information on Tim O'Malley  Zoom on Tim O'Malley  O’Malley, Tim. Information on Tom Parlon  Zoom on Tom Parlon  Parlon, Tom.
Information on Peter Power  Zoom on Peter Power  Power, Peter. Information on Mae Sexton  Zoom on Mae Sexton  Sexton, Mae.
Information on Brendan Smith  Zoom on Brendan Smith  Smith, Brendan. Information on Michael Smith  Zoom on Michael Smith  Smith, Michael.
Information on Noel Treacy  Zoom on Noel Treacy  Treacy, Noel. Information on Mary Wallace  Zoom on Mary Wallace  Wallace, Mary.
Information on Ollie Wilkinson  Zoom on Ollie Wilkinson  Wilkinson, Ollie. Information on G. V. Wright  Zoom on G. V. Wright  Wright, G. V.

[317]Tellers: Tá, Deputies Ó Snodaigh and Stagg; Níl, Deputies Kitt and Kelleher.

[317]Amendment declared lost.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  As it is now 7 p.m., I am required to put the following question in accordance with an order of the Dáil of this day: “That the amendments set down by the Minister for Justice, Equality and Law Reform and not disposed of are hereby made to the Bill, that Fourth Stage is hereby completed and the Bill is hereby passed.”

Question put.

Deputies:  Vótáil.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  Will the Deputies claiming a division please rise?

Deputies Ó Caoláin, Ó Snodaigh, Crowe,
Morgan, Ferris, Gregory, Joe Higgins and Finian McGrath rose.

An Ceann Comhairle: Information on Rory O'Hanlon  Zoom on Rory O'Hanlon  As fewer than ten Members have risen, I declare the question carried. In accordance with Standing Order 68, the names of the Deputies who claimed the division will be recorded in the Journal of the Proceedings of the Dáil.

Question declared carried.


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