Pa Daly (Kerry, Sinn Fein) | Oireachtas source

I move:

To delete all words after "Dáil Éireann" and substitute the following:

":

— 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, 2023 and ending on 29th June, 2024; and

— calls on the Minister for Justice to bring forward legislation to give effect to the recommendations of the Independent Review Group as soon as possible.".

I thank the Minister for publishing the review in advance last week. The Offences against the State Act goes back to an Ireland of 84 years ago - 1939 and the outbreak of the Second World War. The legislation introduced internment camps in the Curragh in Kildare where de Valera imprisoned without trial republicans, German soldiers who had strayed off course and some communists. When Hamilton Neil Goold-Verschoyle, who was a communist, began political classes in the Curragh, a bishop contacted de Valera and had him removed to another prison, which I believe was Arbour Hill, for spreading such foreign propaganda. It was an era of executions and military tribunals. Brendan Behan was interned there and later wrote The Quare Fellowabout one such execution, which was in Mountjoy Prison.

I knew some of the men were interned back then, such as Tomo Costello, Denna Fitzgerald from Tralee, a Kerry footballer, and the Landers brothers. Some of them were still alive when I was younger. Others I heard about, such as Mr. Goold-Verschoyle, Mr. Kinch, the famous writer Máirtín Ó Cadhain and Brendan Behan. Austin Clarke wrote a poem about them. Some were executed after speedy trials and buried beside the path between the main gate and the old women’s prison in Mountjoy. Those men are all dead now but the emergency legislation introduced during what this State euphemistically called the Emergency trundles on and gets us from A to B, or from 2022 to 2023. Nobody can argue with any substance that the circumstances that gave rise to the introduction of this emergency legislation exist today. Even if we were to disregard the Second World War legislation, there were 497 prosecutions back in 2008 under the renewable sections, while in 2022, there were seven. There is a contradiction between what is said in the annual report - the views of the Garda authorities that the second Special Criminal Court is indicative of the use of the court and why it is necessary and what the Minister said, which is that only 21 cases were held there in the past year.

Recently, we all commemorated in the Good Friday Agreement in the 25th year since its passing by the people of this island. It is an internationally binding agreement and other agreements have followed since in relation to the North, yet the Government has continued to run away from its role in implementing these agreements. It is happy to be pictured when agreements are signed but not to face up to the hard work of implementing them. Nowhere is this more clear than in its foot dragging relating to the Offences against the State Act.

There are also important Good Friday Agreement considerations. The Hederman committee arose out of the Good Friday Agreement. It spoke about the importance of equivalence between jurisdictions on this island. Again I hope this review will not lie unimplemented for 20 years and that the comprehensive and well-researched report produced by Michael Peart’s highly regarded team can drag Irish anti-criminal gang legislation into the 21st century.

The Good Friday Agreement is unambiguous in the obligations it imposed. It says: "The Irish Government will initiate a wide-ranging review of the Offences Against the State Act 1939-85 [and beyond, we say] with a view to ... reform and dispensing with those elements no longer required as circumstances permit.” Yet the Hederman review was never implemented. These elements were not dispensed with, and 21 years after that review, the work needed to be redone.

Hederman's report said:

As will be seen from the Committee’s detailed analysis of this legislation contained in succeeding chapters of this Report, it believes that what is now required in a modern environment is for the Oireachtas to repeal the existing Offences Against the State Acts and to replace them with one single consolidated item of legislation containing significant reforms in respect of the statutory regime which has heretofore obtained.

This quote is from the Hederman review, not the recent one, published in 2002, although one could be mistaken for thinking it comes from the most recent review. There is an old saying about doing the same thing over and over again and expecting a different result. The Government is guilty of this, with the renewal of this legislation serving nothing more than their own political expediency.

We know that communities want to feel safe and we wanted to contribute to this discussion, this review and this modernisation of the law. In Sinn Féin we sought, we secured support for and we were the only party which made a submission to the review group. One of these was more a political recommendation but the other recommendations were that the use of the emergency legislation should come to an end; that the practises of other jurisdictions be examined and the Law Reform Commission's recommendations be implemented; and should the committee recommend that non-jury trials remain in exceptional circumstances, that each case be decided on its merits and that reasonable and objective grounds be given for any decision to hold a non-jury trial

The report was released by the Minister last week. The report endorses very significantly and vindicates our position and our contribution and I most definitely welcome its publication. What is most welcome, apart from its legal recommendations, is the advocacy of the momentum to the modernisation of our criminal justice system. It proposes that this is not be based upon conjecture or fear. Aneurin Bevan used to talk of fear of the bogeyman and used to say that if one does not have a programme then a bogeyman will do. It should be based on statistics and data which can objectively state why a long-held desire for jury trials be maintained.

The report sends a message to the entire system that we need this data to improve justice for victims of crime, not only in this situation but for domestic and sexual violence, where it is sorely lacking in comparison to neighbouring jurisdictions.

I have been listening to what the Government has been saying since the publication of this report and we hope, maybe against expectation because I can detect lethargy, prevarication and excuses layering across each other over the past week, this new report will be implemented. I have listened to Government spokespersons saying that we must consult, discuss and inform ourselves and that we require consideration. There is no commitment, however, no sense of urgency, no desire to grasp the baton from the review committee and to carry it along to the final lap to legislation to improve, to renew and to modernise. That suits the Government.

The report itself proposes abolishing the separate scheduled offences, abolishing the Offences Against the State Act and appointing a judge to review the decision to send to the non-jury court and whether the provisions of the legislation have been complied with by the Director of Public Prosecutions, DPP, in any case where a decision is issued that a case can be tried in a non-jury court. It suggests obliging the DPP to consider in every case whether there are measures that could be taken, or protections that could be provided, to address any reasonably or known risk of jury intimidation and therefore negate the need for trial in a non-jury court. It also suggests that the Garda Commissioner should personally approve any submission by gardaí that the use of the non-jury court is appropriate. It further requires the DPP personally, herself, to make the decisions as to whether a non-jury court be used.

There is also work to be carried out by the Legislature regarding alternative measures to protect jurors where potential risks arise and therefore negate the necessity for trial in the non-jury court. That is where we can have a debate.

The report also says that an accused should not be convicted solely on belief evidence, suggests the use of a "privilege" judge, and that inferences from silence should not be sole corroboration, and thus clearing out the outdated and holding on to essential weapons in the fight against criminal enterprises. We want such changes to be both human rights compliant but also safe for communities, for victims of crime and for gardaí themselves. We are willing to play our part in that.

We must remember that the legislation is, in the words of the authors of the new report, not intended to be implemented "on a piecemeal basis". While I have sympathy with the recommendations of the Irish Council for Civil Liberties, ICCL, in regards to the scheduled offences, which the Labour Party attempted to introduce with its amendment, we do need to avoid a piecemeal approach.

All of this is in the context of modernisation of the whole system, which I mentioned earlier. The Commission on the Future of Policing in Ireland made several recommendations relating to cybercrime and cybersecurity, with more resources and the fast-tracking of recruitment recommended. These recommendations must be implemented and the vacancies and staff turnover within the National Cyber Security Centre, NCSC, should be addressed also. We have also seen several major cyber-attacks take place on State institutions and we cannot be seen as a soft touch by any rogue states.

Other measures outside of the court system are also required. The recruitment of forensic accountants and other experts and specialists as required within CAB and other bodies charged with fighting financial crime should be prioritised. There have been a number of delays in transposing EU legislation in this area and cross-border collaboration will require robust legislative frameworks to be in place. Referrals to the Court of Justice of the European Union were only narrowly avoided.

We need modernisation and not the renewal of outdated legislation.

As we and others have stated repeatedly, the idea of having to renew legislation each and every year is not ideal. If this renewal did not exist, the Government would probably feel the need to invent it. On the one hand it has accepted the overwhelming weight of legal and academic analysis in establishing the review and publishing the report, but is acting as though it does not want the circus of this renewal vote to end. The Government insists that the special court works and paints all opposition to it as somewhat subversive, but it wishes to be congratulated on the works of others in seeking change. It is for the Government's own political ends to create this political set piece every year.

Look at what we have seen from successive Fine Gael Ministers for Justice since they took control of the Department about 12 years ago. There is a retention and recruitment crisis in the Garda. I spoke recently to a garda in west Dublin who said that pre-Covid, there were 23 gardaí on his unit and now there are only 12. Courts across the State have very significant backlogs and lengthy waits for trials. Coroners’ courts have delays and families cannot move on while waiting and wondering what happened to their loved ones who have passed. Legislation to combat white collar crime, the handmaiden of serious and organised crime, has been implemented past EU deadlines. Certain crime levels are increasing. Prisons are starved of necessary resources, increasing risks to staff and public safety.

The report of the review group offers a way forward. There is a serious and credible threat from organised crime. These groups rely on instilling fear within vulnerable communities and think little of compromising and infiltrating the justice system. All courts need to be integrated into a single reformed modern criminal justice system, without the annual provisions. Resources must be provided to An Garda Síochána.

The majority opinion of the report backs this very clearly and says: "Many of the recommendations which follow throughout this report are simply a reiteration of what the Hederman Committee recommended in 2002." The review is clear in its view that the current system should not continue. There are great merits in the views of the majority and the minority and we will consider them fully whenever the enabling legislation is brought forward, hopefully as soon as possible.

I appeal to the Minister to refrain from the temptation to hold this set piece again next year. We have moved an amendment to call upon her to implement the recommendations of the report, and not on a piecemeal basis but as soon as possible. I hope the Minister will respect these recommendations in full. The work to implement the report can be completed and a Bill moved soon. An implementation body, which we have seen in other aspects of the Good Friday Agreement, has been established and should be established here. We are facilitating and will facilitate this. We will work with the Government. We do not want to come back again here next year and that is why we urge all Deputies to accept our amendment and to put an end to this.

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