Michael McNamara (Clare, Independent) | Oireachtas source

I have to say I have concerns about this motion. They stem as much from the content of the Bill as from the manner in which it has been brought before the House to date. When the Bill was discussed on Committee Stage, certain matters were ruled out of order. The Minister of State is now seeking a motion to instruct the committee so that those matters can be brought back before it. That committee meeting was held on 26 October. The evening before, 25 October, the Minister introduced a number of new amendments which completely alter the purpose and shape of the Bill and which are very novel in Irish law. The fact that they were introduced on 25 October meant, of course, that no member of the committee or Member of this House had any opportunity to consider them or to table amendments on Committee Stage. The amendments the Minister introduced essentially facilitate him in making assessments of what are called "high-risk vendors". That is a very novel approach in Irish law. One of these amendments states "The Minister may assess at any time, and on an ongoing basis, the likelihood of a vendor being subjected to interference by a third country" and, in doing so, shall have regard to the following matters:

(a) whether or not a strong link exists between the vendor and the government of any third country;

(b) the status of the rule of law and the political situation within the third country in question, in particular whether or not there is democratic or legislative oversight, including an independent judiciary, in place, and whether or not data protection or security agreements exist between the European Union and the third country in question

If the Minister has concerns about a lack of judicial oversight, judicial independence or the rule of law in countries of the world, the way to counter such concerns is not to impinge upon those matters at home, which is very much what this Bill does. If the Minister makes a high-risk vendor assessment, he informs the vendor in question of that assessment but can require that this be kept confidential.Vendors cannot reveal that to anybody, not even their own customers who will not know why they are doing this. As one might expect, vendors can appeal the matter to the High Court. However, if the Minister's assessment is based on national security grounds, he can make an application to the High Court for the appellant not to be provided with the information on which the decision is based. The court can decide whether to give the appellant a mere summary or the gist of that information and then go on to determine the case. The case itself will be heard in confidence. It is not that it "may" be heard in confidence. The court has no discretion. The amendments would introduce the proposition, which is extraordinary in Irish law, that the court and the Minister would be in possession of certain information while the appellant would not and would therefore not be in a position to challenge it.

Something a little bit similar to this occurred in a case involving citizenship, A.P. v. The Minister for Justice and Equality. In that case, the Chief Justice, Mr. Justice Clarke, said that:

short of breaching the State's legitimate and proportionate security interests, it is difficult to see how a process can be constructed which might not, in at least some cases, potentially infringe one or other of what might otherwise be considered matters of principle. Either the Court will have to assess legality without having access to information which formed part of the administrative decision making process but which is covered by State security privilege or the Court will have to make a decision on the substantive merits of the case on the basis of evidence or materials which a party was not permitted to access and could not, therefore, challenge. Neither proposition is particularly attractive but one or other solution must be found if State security privilege is to be upheld. Irish law clearly favours the solution which does not permit the Court to have regard to materials not available to the parties.

He then went on to consider the Offences against the State (Amendment) Act 1972 and said, to be consistent with the Constitution, the opinion evidence of a chief superintendent would have to be corroborated. Mr. Justice O'Donnell, who is now the Chief Justice, said "I also agree that there are, to put it at its lowest, serious doubts that it would be permissible to provide that, certainly in respect of court proceedings, a court could proceed upon material which was not available to be considered or challenged by or on behalf of one party." That is an extraordinary proposition.

Amendments were put in this morning but the Bill was also pulled this morning. I am informed that it will not be considered next week or the week after, which means that it will be considered in the run-in to Christmas with, if past experience is anything to go by, a whole load of other legislation, which will be rammed through without debate or with a guillotine. It is quite important that this be debated fully given how novel it is. I believe it needs to be considered by a fuller Dáil and, on that basis, I call for a quorum of the Dáil.

See this speech in context