Seán Sherlock (Cork East, Labour) | Oireachtas source

I move amendment No. 1:

To delete all words after “Dáil Éireann” and substitute the following:“— resolves that sections 2 to 4, 6 to 12 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, 2019 and ending on 29th June, 2020; and

— for want of any or any adequate information being presented to it, by way of a report under section 18 of that Act or otherwise, in order to enable the Dáil to make an informed finding as to the inadequacy of the ordinary courts to secure the effective administration of justice and the preservation of public peace and order in relation to the offences under sections 6 to 9 and 12 of that Act, declines to resolve that section 14 of that Act should continue in operation from or after 30th June, 2019.”

Article 38.3.1° of the Constitution requires that in order for specified offences to be tried in non-jury courts, the inadequacy of the ordinary courts to administer justice must be determined in accordance with law. There is a difference between a matter that is to be determined by law, such as the number of county councils under Article 28A, and one to be determined in accordance with law. The latter phrase denotes a certain basic standard of decision-making. For example, a determination based on the toss of a coin could never be one made in accordance with law.

Previously, the scheduling of offences to the Offences against the State Act 1939 was carried out by the Government. Having regard to the fact that it meets and acts as a collective body, the role of the Minister for Justice and Equality in policing and the reporting relationship with the Garda Commissioner, it is reasonable to infer that a reasonable volume of information is available to it when making these decisions. It is noteworthy that the Government filed affidavits as to its knowledge and its means of knowledge when its decisions were challenged in the case of Kavanagh v. the governor of Mountjoy Prison in 2001. The courts clearly afforded the Government a reasonable margin of discretion in its decision, although it was careful not to exclude the possibility of a successful challenge.

In the 1998 and 2009 Acts, however, the Oireachtas arrogated to itself the determination as to the adequacy of the courts to administer justice. It is stated in the body of the Acts that the ordinary courts are inadequate in these cases. The Oireachtas then delegated to the two Houses the decision to be taken annually as to whether the courts remain inadequate. In the absence of such decisions, the offences continue in existence but cease to be scheduled offences. If a Kavanagh-style challenge were mounted today, what would an affidavit filed on behalf of the Houses of the Oireachtas contain as to their state of knowledge about any of these things? These two determinations amount to what would in US practice be called legislative findings. We are not used to them here, but the preambles to the Financial Emergency Measures in the Public Interest Acts provide examples whereby, "a serious disturbance in the economy and a decline in the economic circumstances of the State have occurred, which threaten the well-being of the community; and whereas as a consequence a serious deterioration in the revenues of the State has occurred and there are significant and increasing Exchequer commitments in respect of public service pensions". However, legislators could make those FEMPI findings simply by virtue of information officially provided to them under statute, including, for example, the quarterly Exchequer returns. There is no comparable body of information provided to Oireachtas Members as to the adequacy of the criminal courts or the risk of corruption or intimidation of juries.

In the Abbeylara case, all the judges expressly recognised that Members of both Houses are entitled to make inquiries and to be informed through their committees in aid of the legislative power. In this matter, the Oireachtas and, every year since, the two Houses, make findings which disturb the constitutional equilibrium. They sit and debate in public, as do the committees. We know what they have considered and, as such, we know what they have neglected to consider. The record will show not that they arrived at the wrong conclusion on the evidence, but, rather, that they have had no evidence at all. The adequacy of the ordinary courts to administer justice has never been debated by a committee or on the floor of either House. The statutory report furnished by the Minister to both Houses recites the number of times each offence has been prosecuted, arrests made and so on, but it states nothing, good, bad or indifferent, as to the adequacy of the ordinary courts to administer justice.

It is fair to say that the report is detailed. However, what is relevant is what is not included in it. It refers to section 14 of the Act as providing that the offences created by it are to be scheduled offences for the purposes of the Offences against the State Act 1939, and that scheduled offences are triable before the non-jury Special Criminal Court. It goes on to state that section 14, which deals with scheduled offences under the Act, was utilised on 36 occasions last year. It does not make reference to the fact that section 14 of the Act declares that "the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order" in respect of each of those offences. The Houses are being invited to renew that declaration on foot of a report that does not refer to the terms of the declaration expressly or by implication and which contains no information or opinion as to the adequacy of the ordinary jury courts.

The more solid and substantial evidential basis we require for renewal is one that expressly recognises and addresses the core question of whether jury courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. In the absence of evidence, how can the Houses arrive at a decision in accordance with law that section 14 of the 1998 Act should be continued?

If it is the case that the decision was not just on its merits wrong and grounded on inadequate evidence, but rather taken without reference to any evidence at all, it is not too hard to argue that the determination is not made in accordance with law as Article 38 of the Constitution requires and that it is vulnerable to legal challenge by a future defendant before the Special Criminal Court. This is not a case in which a court would refuse on separation of powers grounds to second-guess a parliamentary opinion; it is, rather, a case in which a court might very well say that if the Houses of the Oireachtas insist on retaining for themselves the power to make decisions on these matters, they must take the basic step of informing themselves about the matters on which they are to decide.

We propose two amendments to the motions. The second amendment was ruled out of order as being equivalent to a direct negative to the motion. The first amendment resolves that sections 2 to 4, inclusive, 6 to 12, inclusive, and 17 of the Offences against the State (Amendment) Act 1998 should continue in operation for the period beginning 30 June 2019 and ending 29 June 2020. However, the amendment resolves that section 14 of that Act should not continue in operation. The effect would be that all these offences would be continued but would be prosecuted in the ordinary way before the ordinary courts. The reason given for declining to resolve that section 14 should continue in operation is "for want of any or any adequate information being presented to [the Dáil], by way of a report under section 18 of that Act or otherwise, in order to enable the Dáil to make an informed finding as to the inadequacy of the ordinary courts to secure the effective administration of justice and the preservation of public peace and order in relation to the offences".

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