Brendan Howlin (Wexford, Labour)

I tabled a one word amendment to section 7 but my concerns go much deeper. Section 7 creates a new section 2A in the Bail Act 1997. I made a reasonably long submission in my Second Stage contribution about the real fears that were alerted to me by my legal advisers at the time that section 7 is unconstitutional. Unfortunately, the Minister did not respond in any way to that point at the conclusion of that debate. Since he has rejected already an amendment from Deputy Jim O'Keeffe on the basis that it potentially would be a time bomb because he could not guarantee its constitutionality, I alert him to the real fear presented to me that the new section 2A is unconstitutional.

I checked it subsequently beyond the legal advisers available to me in my work here. I have the learned advice of a very distinguished senior counsel on this point, which I will share with the House if I may. I have also been told that a learned professor of law who read this opinion also agrees with this view.

The view on this point states:

There must be a serious question about the constitutionality of the proposed Section 2A by way of addition/amendment to the Bail Act, 1997. It is proposed that where a Garda not below the rank of Chief Superintendent gives evidence of a belief that the refusal of the application for bail is reasonably considered necessary to prevent the commission of a serious offence by the Applicant, such statement "is evidence that refusal of the application is reasonably considered necessary for that purpose". ...

If the section is enacted as it stands it will carry the presumption of constitutionality which simply means that when it comes to a consideration of its constitutionality [in the courts] the courts must proceed on the basis that where two possible constructions, one constitutional and [one] ... unconstitutional, are available, the Court must adopt that interpretation which conforms with the Constitution.

The difficulty with the section as it stands is that it seems to seek to place the Bail Court in a position of being statutorily obliged to accept the evidence of opinion that is put [to]...it. Thus, whereas section 2(1) permits the Court to refuse an application where it is satisfied that such refusal is reasonably considered necessary to prevent the commission of a serious offence the requirement that the Court should be so satisfied is fulfilled where "the statement is evidence that refusal of the application is reasonably considered necessary for that purpose" as provided for the proposed Section 2A(1).

On...[the] face [of it] the new provision seems to require the Court to refuse an application where it has evidence of the prescribed opinion although a...[reasonable] connection between that opinion and the refusal of bail to the applicant has not actually been established to the satisfaction of the Court.

Whereas one might view the entirety of section 2 and the new section 2A on the basis that section 2(1) is the controlling section which requires the Court in all instances to be "satisfied" it seems to be quite clear that the proposed section 2A is intended in some way to derogate from section 2(1). It becomes a question of the extent of the derogation and it seems clear that section 2A(1) has been drafted in a way so as to make it clear that the Bail Court must act on the unrebutted evidence of [the] opinion of a Garda of the rank of Chief Superintendent [or above] by refusing the bail application.

It seems reasonably clear from the language adopted that this is the intention of the draughtsman in this case. Thus, the presumption of constitutionality is of little aid. So, for instance, in a case where there is...no evidence except that of the Chief Superintendent it is difficult to see how the Bail Judge could be satisfied that refusal of the application was not reasonably considered necessary to prevent the commission of a serious offence. Indeed it would appear that no matter how well the opinion of the Chief Superintendent was undermined by cross-examination the fact that he gave the opinion on oath would render it evidence upon which the Bail Judge must act.

Article 34 provides for the administration of justice in the Courts established by the Constitution. However, this proposed amendment to the 1997 Bail Act appears to be open to the principled objection that it would have the effect that Bail Judges would be placed in a position of having to suspend their judgment on the issue of the satisfactoriness of the evidence grounding [the]...objection to bail where the Garda authorities [above the rank of Chief Superintendent] considered the refusal of the application is "reasonably considered necessary" to prevent the commission of a serious offence.

In essence, I have tomes of opinion but this is the clearest exposition of it that I wanted to present. It is the opinion of people whose opinion is respected across the House. I will not give the names of the individuals unless I am asked to do so because that would be disingenuous. I cite the fear that there is a substantial difference between this and the provisions that have been applied in the Offences Against the State Act. This is not evidence that is rebuttable and on which the court can make an independent decision. While they certainly can cross-examine the witness, as stated, the mere assertion itself is the evidence.

Section 2A(1) in section 7 is inelegantly drafted and that is the reason I drafted my amendment, but that is a separate issue from my concern about its constitutionality. I propose the deletion of the word "considered" in the last line of it. The section states, "...the statement is evidence that refusal of the application is reasonably considered necessary for that purpose", but surely it should state "the statement is evidence that refusal of the application is reasonably necessary for that purpose". What is being judged in this instance is whether it is reasonably considered necessary. It is the consideration that is being judged as opposed to the necessity. It seems perhaps to be meaningless, as currently drafted. If the Minister wants to proceed as he intends to, at least the Garda evidence should be relevant to the issue that is before the court.

There are two separate issues, which perhaps I may not have outlined elegantly. The first is the genuine fear that the provision, as drafted, may be unconstitutional and may well put the entirety of the Minister's proposals in jeopardy for that reason. The second is that the provision is inelegantly drafted and would be made clearer, if the Minister wants to persevere with it, by the acceptance of this amendment.

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