Brendan Howlin (Wexford, Labour) | Oireachtas source

I too welcome the review chaired by Mr. Justice Michael Peart. I also take note of the Minister's promise of an interim report shortly. In the meantime, we are asked to continue in force certain provisions of the Offences against the State (Amendment) Act 1998 and the Criminal Justice (Amendment) Act 2009. That is the motion before the House. The provisions to be renewed again fall into two categories. First, those enactments created new offences and, second, the provision of the ordinary courts are deemed as inadequate to try these offences and therefore they should be tried in the Special Criminal Court. On the first matter, if these offences are now a permanent feature of our law they should be made so, and not subject to annual review. We must have a proper debate upon that.

In terms of cases being brought to the Special Criminal Court, the background to that Article 38.3.1^oof the Constitution allows for special non-jury courts to be established by law.

Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.

The process involved is a two-stage one. The first is where special courts are established and the second is that the cases to be tried are those determined in accordance with the law as cases deemed inadequate for the ordinary courts. The Constitution does not state that the Oireachtas itself will decide and set out in the law those offences in respect of which the ordinary courts are inadequate. It states that such determination is made "in accordance with such law". The determination is quite clear when one reads the Irish text of the Constitution to be consequent on the passing of law to be made "de réir an dlí sin", in accordance with that law, rather than the law being included in the text of the Bill itself. That is not a semantic point. If it is made in accordance with laws, there has to be a process of determination that cases cannot be tried before the normal courts. Previously, that judgment or determination was made by Government order under the Offences against the State Act 1939. Having regard to the Minister for Justice's role in policing and the reporting relationship between An Garda Síochána and the Government, the Minister presumably had the information needed to make those decisions, but under these two Acts, the Oireachtas took that decision-making upon itself. That causes problems.

What we are asked to do is make a determination that, in certain cases, we, as Oireachtas Members, are determining that they have to go to a special court, and the normal constitutional provisions would be set aside. That is a very onerous thing. There is much case law that I cannot go into in the five minutes I have. However, I know the Abbeylara case very well because I was involved in it, and all the judges recognised that the Oireachtas was entitled to make inquiries in regard to legislation, but in all of that there had to be a transparent process so the Oireachtas was visibly enabled to make that decision.

When that particular point was made by Deputy Sean Sherlock in 2019, the then Minister for Justice said it was reasonable to assume that Members - that is, each Member of the House - will engage in their own research, consideration and knowledge, the sum total of which will form the views of Members, including the views of Members as to the operation of normal courts and their capacity to administer justice. In essence, what is expected of each Member of the House voting today is that we have done our own research and, on the basis of that evidence, come to the conclusion that the normal courts are inadequate to deal with this, and that the normal constitutional provision on the right of people to be heard in open court by a jury is to be set aside. My great fear is that that will be challenged - there have been challenges in the past - and that it will be very hard to apply. In the first instance, who in the Oireachtas is going to set out that that inquiry and reasonable investigation that the Minister for Justice says we should undertake is being done? While the review is absolutely required, we need to change this process. I hope Mr. Justice Peart, when he comes back in his interim report, will provide fundamental suggestions as to a change in the law so we will not be in this position next year.

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