Alan Kelly (Tipperary, Labour) | Oireachtas source

I am speaking on behalf of our justice spokesperson, Deputy Brendan Howlin, and on behalf of the Labour Party. While we intend to support these motions, I want to express serious reservations about the technical procedures we adopt. In doing so, I recognise I am open to the charge that precisely the same procedures were adopted when we were in government. That is true, and it is also true that Ministers tend to confine themselves to operating within their own departmental responsibilities rather than inquiring too closely into the business of their colleagues. In any event, it is clear to me, from this side of the House, that we need to better arrange the role of the Dáil in extending this legislation.

In regard to the Criminal Justice (Amendment) Act 2009, I would make a comparison with another set of legislative measures with which everyone in this House is familiar - the FEMPI legislation. Those Acts had a major impact on vested statutory and contractual rights. When the first Act was introduced, it was recognised that the provisions might be vulnerable to constitutional challenge. The swingeing measures could be justified only by reference to the emergency economic circumstances in which we found ourselves. Hence, unusually, a series of facts are set out at the start of the Act, where it is recited that a serious disturbance in the economy and a serious deterioration in the revenues of the State had occurred, threatening the well-being of the community. The purpose was to justify the measures taken in the Act as being necessary but also proportionate in order to address the economic crisis.

We were also advised in government that, as economic conditions improved, we would have to unwind FEMPI. We were told that this was not just sound policy but was constitutionally necessary. As the facts on the ground diverted from the facts asserted in the recitals to the Acts, the risk would increase that the courts would look behind those recitals and assess the real facts. If the facts on the ground no longer justified the measures taken, then the Acts were liable to be struck down as a disproportionate interference with constitutional rights.

It seems to me that the comparison with the legislation we are considering now is instructive. In both cases, the Oireachtas makes a factual judgment in order to justify what would otherwise be unconstitutional. In both cases, the factual judgment has to be evidence-based. In both cases, the risk is that the courts may be invited to look behind the facts as asserted by the Oireachtas. In both cases, if the courts discover that the Oireachtas arrived at its conclusion on no evidence, inadequate evidence or out-of-date evidence, then the Act may be challenged and it may fall.

What we are dealing with here is the fact that the Constitution entitles every citizen to trial by jury on a serious charge. An exception can be made where it is determined in accordance with law that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. A person or body closer to the facts - such as the Minister for Justice and Equality or the Government - could have been chosen to make that determination. However, under the 2009 Act, the Oireachtas abrogated to the two Houses themselves the responsibility for determining that the ordinary courts are inadequate to administer justice effectively.

If the Houses are to perform this function properly, then the Houses must inform themselves as to the factual situation. That our ordinary courts cannot adequately administer criminal justice is a strong assertion to make, to put it mildly.

Critically, it has the effect of abolishing what would otherwise be a constitutionally-vested right. It is, therefore, it seems to me, a conclusion that can only be arrived at on foot of an examination of the evidence.

In the case of the FEMPI Acts, we in this House were able to make a judgment call, based on the information available to us. Members of the Dáil vote expenditure and authorise taxation. The Houses receive statutory monthly Exchequer reports and a wealth of other economic data. The Members of the Dáil and Seanad would, therefore, be better placed than most to determine if there had been a serious deterioration in the revenues of the State. We cannot say this about the adequacy of our criminal justice system. We cannot say the determination we are being asked to make today is based on information that is generally available to us. This is why the 2009 Act requires the Minister to prepare a report and lay it before the Houses prior to extending the legislation for yet another year. The report was filed electronically last Friday. It has a cover page and five other pages of double spaced typing. It runs to a little over 1,200 words, less than the length of my contribution this evening.

I am not being unfair to the report to summarise it as stating the Garda Commissioner believes the legislation has proved effective in tackling organised crime. The Minister has stated her position on the report, which I do not have time to quote. However, we are not being asked to decide whether this legislation is either important or effective. Neither the Minister nor the Commissioner addresses the issue which we are, in fact, being asked to determine. The net question before us is whether the ordinary criminal courts, sitting with juries, are inadequate to try these offences. This is what we are asked to determine, and to determine not just in accordance with the 2009 Act but also in accordance with Article 38 of the Constitution. If we rubber-stamp this process year after year, then I do not think it will be beyond the wit of defence counsel in the Special Criminal Court to argue that a valid extension of the Act is a prerequisite to the trial of these offences in that court; that a valid extension requires a determination in accordance with law that the ordinary courts cannot administer justice in these cases; that a valid determination in accordance with law as to the state of the justice system in the ordinary courts has to be an evidence-based determination; and that the two Houses have either no or inadequate evidence before them to enable them satisfactorily to arrive at any such determination. I do not second guess the Minister and nor do I want to. What I am arguing for is a realisation that if it is to fall to the two Houses to make this decision then it must be an informed decision. This is not just good policy but it is also, it seems to me, a necessary precondition to ensuring the continuing constitutional validity of this legislation.

Many of the provisions of the 1998 Act which we renew from year to year should no longer be renewed. I say this not because I believe we should let them lapse but for the opposite reason. Some of these provisions should long ago have become a permanent part of our criminal law. I do not know why it strikes anyone as sensible, 18 years later, that we still annually renew a section that makes it an offence to direct an unlawful organisation. It should have been dealt with. Neither do I think anyone seriously disagrees that withholding information about serious offences should be a crime. We need a serious look at what our permanent criminal code should say about offences against the State, public order and organised crime, and then disentangle anything that we consider exceptional and suited only to emergencies. We should do this because we can create serious confusion and allow for errors, omissions and, possibly, injustices if we cannot arrive at a holistic overview.

There are many other issues to do with the 1998 Act, which the Labour Party intends to put in writing to the Minister as we do not have time to discuss them. I do not believe that either of these Acts entitles or enables us to repose unquestioning confidence in the assertions of the Minister. The time has come for the House to schedule a proper debate on the issues, which I have outlined, involved in keeping this legislation in place. This would allow all Members to have a serious and properly informed discussion. On this occasion we will support the motion, but I ask the Minister to please take on board the points I have made. I have raised a number of issues and the Houses need to bring forward new legislation to deal with many of the anomalies I have outlined.

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