Aodhán Ó Ríordáin (Dublin North Central, Labour) | Oireachtas source

I am pleased to take Report Stage of this important Bill on behalf of the Minister for Justice and Equality who regrets that she cannot be here because she has to attend the Cabinet meeting which is currently taking place.

I propose to deal with the amendments tabled by Deputies Clare Daly and Mick Wallace together as they all relate to the offence of "public provocation to commit a terrorist offence". The amendments seek to either remove the offence of "public provocation" or revise the wording of the definition of the offence. I will deal first with the proposal to completely remove the offence of "public provocation" from the Bill which would be the effect of amendments Nos. 1 to 3, inclusive, and 7 which propose to delete references to the offence where it occurs in sections 3, 4 and 7.

The offence of "public provocation" is one of three new offences that the Bill is required to provide for to allow Ireland to transpose EU Council Framework Decision 2008/919/JHA on combating terrorism and facilitate ratification of the Council of Europe Convention on the Prevention of Terrorism which has already been signed by Ireland. The offence of "public provocation" is a central element of the framework decision and the convention, both of which were agreed to by member states of the European Union and member countries of the Council of Europe, including Ireland. To exclude this offence, as proposed by the Deputies, would mean that we would not be in a position to fulfil our obligation to transpose the Council framework decision or ratify the Council of Europe convention which is, after all, the main purpose of the legislation.

The Minister for Justice and Equality considers it appropriate that the offence of "public provocation" be covered in Irish law as it is, undoubtedly, an offence to incite a person to commit terrorist activity. Public provocation or incitement is clearly a preparatory terrorist activity and should be strongly discouraged and suitably punished. Specifically and in relation to amendment No. 7, it is not certain that the Deputies' amendments would achieve the desired result. Section 7 of the Bill amends section 6 of the principal Act, the Terrorist Offences Act 2005, and provides that it will be an offence to attempt to commit the offence of "recruitment for terrorism" and to commit the offence of "training for terrorism" but that it will not be an offence to attempt to commit the offence of "public provocation to commit terrorism". This is in accordance with the provisions of both the Council framework decision and the Council of Europe convention and reflects the fact that the offence of "public provocation", as defined, or elements of it, is more conceptually difficult to "attempt". Furthermore, the notion of intent is already covered in the "public provocation" offence as framed in that the definition of "public provocation" set out in section 4 of the Bill refers to "the intentional distribution, or otherwise making available, by whatever means of communication by a person of a message to the public, with the intent of encouraging, directly or indirectly, the commission by a person of a terrorist activity". The effect of the proposed amendment to section 7 would be to also make it an offence to "attempt" to commit the offence of "public provocation". It is unsure that this is what the Deputies intended, as it is clear from a number of the other amendments put forward that the overall intention is to remove the offence of "public provocation" from the Bill. Therefore, for the reasons outlined, it is not proposed to accept the Deputies' amendments to delete references to the offence of "public provocation" from the Bill.

I now turn to amendments Nos. 4 to 6, inclusive, which seek to revise the wording of the definition of "public provocation to commit a terrorist offence" in section 4 of the Bill. The amendments put forward by both Deputies are similar in nature and would essentially have the effect of narrowing the scope of the definition of "public provocation". It would do this in amendments Nos. 4 and 6 by removing the notion of indirectly encouraging the commission of a terrorist activity and replacing the word "encouraging" with the word "inciting" instead. It should, first, be pointed out that the wording of the definition of the "public provocation" offence, as with the two other offences, is based on advice received from the Office of the Attorney General and drafting by the Office of the Parliamentary Counsel. The wording, as drafted, broadly reflects the definition of "public provocation to commit a terrorist offence" as set out in the amending Council framework decision on combating terrorism and the Council of Europe Convention on the Prevention of Terrorism, the international instruments to which the Bill seeks to give effect. In order to enable Ireland to correctly transpose and ratify these instruments, the wording of our definition must capture the various elements of the offences as framed in these international instruments which are included in Schedules to the Bill. It is clear from the definitions provided in both instruments which are broadly similar that the indirect, as well as the direct, advocation of terrorist offences is intended to be covered by the offence of "public provocation". The definition, as provided for in the Bill and the international legal instruments, contains the word "intent", which implies that intention should be present, whether the commission of a terrorist offence is advocated directly or indirectly.

I turn briefly to the proposal to replace the word "encouraging" with "inciting" in amendments Nos. 4 to 6, inclusive. This is a common element in each of the amendments. While the definitions in the amending framework decision and the Council of Europe convention contain the word "incite", the Office of the Attorney General advised against using the term "incitement", a common law offence, when defining the offence of "public provocation to commit a terrorist offence". Concern was expressed by the office that the word "incitement", as understood in Irish law, might not capture circumstances where there had been no direct advocation and could, therefore, lead to difficulties in the prosecution of such cases. As I mentioned, the definition of "public provocation", as framed in both the amending framework decision and the Council of Europe convention, requires that indirect advocation of the commission of a terrorist offence must be covered. The wording of the definition of "public provocation" in the Bill should, therefore, remain as drafted by the Office of the Parliamentary Counsel on the basis of the legal advice received on the matter. This is also in line with the recommendations of the Law Reform Commission in its report on inchoate offences, 2010, as to the terminology to be used when defining an act of incitement in statute in order to properly reflect the expansiveness of the meaning of the term "incitement" in common law. Again, for the reasons outlined, it is not proposed to accept the Deputies' amendments in this regard.

See this speech in context