Joe Costello (Dublin Central, Labour)

I welcome the opportunity to discuss the motion on the renewal of the sections of the Offences against the State (Amendment) Act 1998. We all remember the tragic circumstances under which this amending legislation was introduced in September 1998. We will recall how ironic it was that we had signed up to the Good Friday Agreement in Easter of the same year only for it to be shattered by the worst single atrocity of the 30 years of the Troubles. No one expected the shocking and horrific event at Omagh. In that context, there was unanimity when this legislation was presented to strengthen the powers of the Garda to deal with the perpetrators of the atrocity. It was an amendment to the Offences against the State Act. People believed that if there was anything necessary to bring those perpetrators to justice, every citizen would gladly provide the mechanism and support for it.

There were concerns about emergency legislation becoming permanent, a feature of such legislation in the past. It was for that reason the Houses agreed an annual review mechanism would be built into the legislation. It was hoped that once the perpetrators were brought to justice, this legislation would no longer be on the Statute Book. Last year, only one person was convicted of a related offence to the Omagh bombing, the first conviction since the legislation was passed in 1998. The Minister of State did not refer to it in his speech. I would like to know if anyone else has been put behind bars under the terms of the legislation since this time last year.

We want a full report on the operation of the legislation. On today's Order of Business, I raised the issue of whether Members are entitled to an earlier production of the report on the previous year's implementation of the legislation. I believe we are. As the Minister of State alluded, I raised this last year when it was impossible to get a copy of the report the night before the debate on the legislation. If I had not gone searching yesterday for the report I would not have it. I must make a correction to what I said on this morning's Order of Business. I misconstrued the date 15 June for 13 June. It was in the Library on 13 June. However, it took quite some time for the Library to find it for me.

Section 18 states:

Each of the following sections, namely sections 2 to 12 and 14 and 17 shall, subject to subsection (2), cease to be in operation on and from the 30th day of June, 2000, unless a resolution has been passed by each House of the Oireachtas resolving that that section should continue in operation.

The House will sit past 30 June and on 1 July. There is ample time over the next several weeks to give us an opportunity to digest the report. There is no reason we should rush this motion in the same week the legislation has been reported on. Section 18(3) states:

Before a resolution under this section in relation to a section specified in subsection (1) is passed by either House of the Oireachtas, the Minister for Justice, Equality and Law Reform shall prepare a report, and shall cause a copy of it to be laid before that House, of the operation of the section during the period beginning on the passing of this Act or, as may be appropriate, the date of the latest previous report under this subsection in relation to that section [typical legalese] and ending not later than 21 days before the date of the moving of the resolution in that House.

The Minister must prepare a report, then lay it before the House not later than 21 days before moving the resolution. The Minister of State is arguing on a technicality that once the report is prepared 21 days before its renewal, the functions have been fulfilled. It is clear from the legislation that the report must be prepared and laid before the House not later than 21 days before moving the resolution. This has not been adhered to either in the spirit or the technicality of the law. We built in this annual review mechanism for the purpose of scrutinising the operation of the legislation and to see whether it deserved be renewed.

That spirit of the law will be lost if Members receive the report and have the debate in the same week. Last year, we received the report the day before the debate at the very earliest. Unless the spirit of the legislation is upheld by providing the report for Members much earlier before the debate is held, it is impossible to scrutinise, conduct proper research and prepare for it. Once again, I ask the Minister to provide at least two weeks between the time in which the report is placed in the Library and the debate. That is the least we can expect.

The legislation came about because of the tragic events in Omagh in 1998. The amendments to the Offences against the State Acts 1939 to 1972 include changes regarding the rules of evidence, membership of an unlawful organisation, other offences under the Offences against the State Act and scheduled offences. Some new substantive offences have also been included as well as the extension of the maximum period of detention permitted under section 30 of the 1939 Act.

This is part of a schedule of emergency legislation tied up with special courts which has been in existence since 1939. Interestingly, one of the provisions of the Good Friday Agreement was to examine all emergency legislation to see if it could be stood down. The intention was that, given the ceasefire and the Good Friday Agreement, the legislation would be reviewed on both sides of the Border. Such a review of the terrorist legislation took place in Northern Ireland, where the Diplock courts and the provisions of the Prevention of Terrorism Act relating to Northern Ireland were stood down. The legislation there has been effectively normalised and regularised.

One should remember that the Omagh attack took place in Northern Ireland. That horrific act was not perpetrated in this jurisdiction but in Northern Ireland, and the British Government did not see fit to reintroduce a series of emergency powers to deal with the situation, nor has it done since. It has accepted the provisions and thrust of the Good Friday Agreement to dismantle, in so far as possible, those emergency provisions.

We have done nothing of the sort. Our discussion should be broadened to examine how the emergency legislation came into existence. In 1939, the Emergency was declared and the rainbow Government lifted it in 1995. Despite that, the offences against the State legislation from 1939 still remains in existence. It was retained because of the supposed dangers of jury intimidation or jury bias. In my experience, we do not have a problem with jury intimidation but with witness intimidation and it does not pertain to special legislation or political offences alone. It also applies to normal criminal offences. That is why we must examine the paraphernalia of legislation which will determine our criminal justice system. Members must examine whether the arguments for the introduction of the original Offences Against the State Act and for Dessie O'Malley's establishment of the Special Criminal Courts in 1972 still hold good. Even in 1972, Mr. O'Malley stated that he envisaged that the Special Criminal Courts would be temporary. There was no acceptance that they would continue on a long-term basis.

Not only has the Minister for Justice, Equality and Law Reform accepted the Special Criminal Court, but this year he took a further step by introducing a second Special Criminal Court. He introduced it in the context of the terrorist legislation which was initially introduced in 2002 and was passed in 2005 as the Criminal Justice (Terrorist Offences) Act. I am still unsure what was his real justification. I asked him whether there was a backlog of cases to be dealt with, but he was unable to clarify that. He introduced a second Special Criminal Court for no apparent reason that he could justify. Perhaps he expected an outbreak of paramilitary activity on the part of the Continuity IRA or the Real IRA which would have to be dealt with. Is this second Special Criminal Court operational? What has been done about it? Was it established to deal with a backlog of cases that were not dealt with in a timely manner and are sitting there?

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