Michael McNamara (Clare, Independent) | Oireachtas source

I will discuss amendment No. 42. I do not understand the Minister's idea that this interferes with judicial independence. It merely states that if somebody challenges the making of a high-risk vendor notice, the Minister can go to court and provide it with all of the reasons he or she determines that the high-risk vendor notice is appropriate, much of which I anticipate will be based on national security grounds.

The judge then looks at it and determines what it is appropriate to give to the appellant, that is, the person who is challenging the notice. The appellant will be given some information or, indeed, all of the evidence that the Minister has put forward or, perhaps, none of it. There is a proposal in the Bill whereby the appellant can be given a summary of the information provided.

This amendment proposes that if a judge determines that some, but not all, of the information be given to the appellant, once that determination is made the judge will not go on to hear the substantive case. The idea that a judge will be able to act appropriately etc. is something with which I have no problem. The idea that a judge will be given information by the Minister in respect of the appellant, but the appellant will not have access to that information and may not even know what the information is about, depending on what the judge deems appropriate to give to the appellant, is a new departure.

It is something that exists in other jurisdictions, not in this context but in regards to terrorism charges or allegations of terrorist activity. There are special advocate procedures in place in the United Kingdom. On the Continent it is not unusual to have such a system. However, in the Irish system the judge is there to look at the information and all of the evidence. Both parties can challenge all of the evidence against them. That is the normal course. There is no facet of Irish law where that is not the case. There is no facet of Irish law where an appellant or a party to proceedings cannot challenge all of the assertions made against them and all of the evidence which supports such assertions.

In the Special Criminal Court there is an issue around a superintendent's assertion that somebody is a member of a prescribed organisation. The Chief Justice found that it would be unconstitutional if that was not required to be corroborated. In this instance there is no protection whatsoever. In the case of an appellant who goes to court, the Minister can state he or she has information from an embassy or security apparatus. Of course, the Minister will always say that there is a threat to national security to divulge the very fact that he or she is obtaining information from the Americans, British, French, Germans, Latvians or Lithuanians – take your pick.

The exchange of that information is contingent upon it being confidential. A Minister can argue that merely saying that information has been obtained from whatever security state will threaten our national security. Of course there will be an application that the information not be provided to the appellant. The judge may deem it appropriate to provide some, but not other, information. For the judge to then determine the case against an appellant based on evidence that the judge and Minister have, but which the appellant has never been provided with, is, as I have said, a novel departure in Irish law and one that I am not in any way comfortable with.

I am not comfortable with the process in any event, but my amendment could at least ensure that it essentially involves a different court. One way or the other, it will involve the High Court. A different judge of the High Court than the judge who would determine what information would be provided to the appellant would hear the case.

Of course, the amendment has the further effect that only the evidence provided to the appellant can be used in the appeal of the making of the high-risk vendor notice. Up to now, in all or any courts in Ireland both parties have had equal access to all of the evidence that a judge hears. That has not been controversial up to now. This is a Rubicon. It is a new departure, and one that I do not think is necessitated.

It is not proportionate to introduce it at this time and in this context. It is a concept that should not be introduced without a lot of debate. As I said, if the Minister can provide any context in Irish law where something like this occurs, I would welcome hearing about it. I am not aware of any such cases. I understand it was discussed in a case called APin court. I have no idea what the previous Chief Justice and Mr. Justice O'Donnell, who is now the Chief Justice, would find with regard to this, but it was clear from their judgments that this would be a new departure. Given that it is a new departure, it is something that needs to be very fully debated.

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