Brendan Howlin (Wexford, Labour) | Oireachtas source

I congratulate Deputy Flanagan on his appointment as Minister for Justice and Equality. We worked together in government but also for a long period in dealing with issues in the justice area as our respective party spokespersons. I regard the Department of Justice and Equality as being one of fundamental importance to the State and a challenging Department. I know the Minister is well up for it.

The motions before us are as follows:

That Dáil Éireann resolves that sections 2 to 4, 6 to 12, 14 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, 2017 and ending on 29th June, 2018.

That Dáil Éireann resolves that section 8 of the Criminal Justice (Amendment) Act 2009 (No. 32 of 2009) shall continue in operation for the period beginning on 30th June, 2017 and ending on 29th June, 2018.

First, it is clear from the terms of the motions that they do not have to be taken today, despite what was said this morning, since they only come into operation on 30 June. Second, I strongly believe the issue should have been referred to the joint committee for a report and recommendation. We made the same point last year and I had hoped there might be a change in the intervening 12 months.

We are asked to resolve that the ordinary courts in the State are inadequate to secure the effective administration of justice and the preservation of public peace and order. These are very big asks of this House. That our courts cannot adequately administer criminal justice is a strong assertion to make. To curtail the right to a jury trial can be justified in circumstances but those circumstances would normally be an element of crisis or an emergency in the affairs of the State.

What is involved is the Oireachtas making a factual judgment in order to justify what otherwise would be unconstitutional, and that factual judgment should be evidence-based. My contention is that the real risk is that the courts may be asked to look behind our assertion. If the courts discover that the Oireachtas arrived at a conclusion with no evidence, inadequate evidence or out-of-date evidence being proffered, I think we are in trouble. The law could have been set out in order to leave it to the Minister to make that assertion but it did not. Instead, the law states that the two Houses would make that assertion.

The Act requires the Minister to prepare a report to inform the Houses before such a determination is made. The four-page, double spaced, typed report is not in fact a real, comprehensive report, which I think the Minister would objectively accept. The report says nothing at all, good, bad or indifferent, about the state of the ordinary criminal justice system yet we are asked to declare as a fact that our criminal courts cannot administer justice. We have not been given any adequate factual basis to come to a real conclusion. I believe that if we rubber stamp this process year after year, then any defence counsel in the Special Criminal Court can argue that the Act cannot validly be extended without an evidence-based determination. While I do not intend to second guess the Minister, it does fall to this House to make that determination because that is what the law states.

My party will not obstruct the passing of these motions, which we will support because we are concerned that there are in our midst criminal gangs that can intimidate jurors, which is a reality for our State of which we must be cognisant. However, we should also be cognisant of the law and the real and important job of work that these Houses have to do. We should have a proper debate about these matters.

We should have evidence-based analysis placed before us that we can parse and analyse as Houses of the Oireachtas rather than, quite frankly, a very inadequate one that, I believe, does not measure up to the legal requirements on which each of us speaks for five minutes on this important issue on an annual basis. I hope the new Minister will do it differently next year.

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