Thursday, 11 July 2019
Criminal Justice (International Co-operation) Bill 2019: Committee Stage (Resumed) and Remaining Stages
To a large extent I agree with what Deputy Maureen O'Sullivan said about inadequate procedures for victims in the South. Having said that, I do not believe this amendment is heavily weighted in one direction or another. It simply is to ensure the potential for oversight. I hope that any legislation that would exist in the North - we would argue for it likewise - and the British legislation would have the potential for oversight.
I do not accept what the Minister said. He is incorrect in his comments on drafting of the amendment. It is a mistaken understanding of the sequencing. The Minister spoke about referring back to the High Court judge who will undertake the questioning or testimony, but, of course, that testimony will not happen if the request has been refused. This happens at the stage that it has been refused or refused in part. Therefore it would actually be happening before the procedure the Minister is talking about. From a drafting point of view there is no difficulty there and it clearly stands on its own. It does not have to refer back to the other procedures because what would happen if the judge was not satisfied that the Garda Commissioner was applying the section correctly. That is quite clear and is there in black and white. From a drafting point of view, I am very confident that it is properly worded.
From a policy point of view on the rights and wrongs of this, the comments of both the Minister and Deputy O'Callaghan assume that everything works as it should. We would not have legislation like this if everything worked as it should. Clearly one would hope and I would expect that the Garda Commissioner - and anyone holding that office in years to come - and the gardaí will co-operate properly in a spirit of trust, co-operation and desire to assist the victims of the conflict. I hope they would apply the section correctly and that they weigh up the three considerations they have been asked to weigh up here.
When the request comes in, there are two potential refusals: the Garda Commissioner could refuse to facilitate the testimony by correctly applying these tests or the Garda Commissioner might not apply them correctly and refuse to co-operate for reasons that do not fit within the three categories outlined.
Deputy O'Callaghan spoke about a judicial review. I am not sure the coroner could seek a judicial review of the decision of the Garda Commissioner as outlined in section 3. Even if he or she could, I am sure it would be a very difficult situation for the coroner of another jurisdiction to seek a judicial review against the Garda Commissioner in this jurisdiction.
Deputy O'Callaghan also talked about proceedings in camera. Much of this procedure needs to be carefully managed. It has to be careful in terms of it being tight and all the rest of it. Therefore I think that is appropriate. It would be difficult to have a review of the grounds given considerations such as security, prejudice and criminal investigations. I am not sure it would be possible to have an examination by the High Court judge of the Garda Commissioner's grounds unless the Garda Commissioner was in a position to be perfectly frank and I am not sure that could possibly happen in a public hearing.
The same High Court judge could potentially conduct a judicial review or could potentially conduct the testimony as provided for in section 3. It is important that the High Court judge would have the opportunity to hear what the Garda Commissioner is saying and accept or not accept that he or she had applied the section correctly.
We all expect and hope, and I am quite optimistic, that all requests for co-operation will be facilitated as best as possible and that this section would be applied correctly, as I believe it will be. However, in this legislation, as in other legislation, there must be provision for cases where the procedures do not work as they are meant to because they do not always. We would not be dealing with legislation of this kind if public authorities always acted as they should. Therefore it is a perfectly proportionate, carefully weighted opportunity for the coroner to seek a review in a manner that is very much in the spirit of the rest of the legislation. It keeps it very carefully protected where that is necessary but also ensures that people have every opportunity to have co-operation regarding inquests into what happened to their families and to them.