Jonathan O'Brien (Cork North Central, Sinn Fein)
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Question 61: To ask the Minister for Justice and Equality if his attention has been drawn to the fact that the UN fundamental human rights instruments to which this State has signed up make it clear that fundamental rights protections may be derogated from only in times of emergency that no such emergency exists that could possibly warrant the measures contained in the Offences Against the State Act; his plans for this legislation in view of the recent Supreme Court ruling. [14330/12]

Alan Shatter (Dublin South, Fine Gael)
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The Government is very well aware of its obligations under the UN instruments to which it is a party and which have as their core the protection of fundamental human rights. Those rights are also guaranteed by Bunreacht na hÉireann. Nevertheless the Constitution recognises there are circumstances in which the functioning of the justice system may be undermined unless strong measures are taken to prevent this. Accordingly, the Constitution makes provision for special courts to be established by law in cases where it is determined that the ordinary courts are inadequate to secure the effective administration of justice or the preservation of public peace and order.

The Deputy is well aware the Offences against the State Act 1939 provides for the Special Criminal Court to try certain offences. However, the justice system may be undermined not only by terrorist groups but also by organised criminal groups such as those to which reference was made earlier. The 1939 Act permits the Director of Public Prosecutions to direct that certain cases be sent for trial in the Special Criminal Court. The Criminal Justice (Amendment) Act 2009 has put in place legislative measures to combat organised crime when the effective administration of justice could not otherwise be achieved. Among the measures are those contained in section 8, which provide that certain organised crime offences under Part 7 of the Criminal Justice Act 2006, as amended, are deemed to be scheduled offences under the 1939 Act. In effect, this means the offences in question shall be tried in the Special Criminal Court unless the DPP directs that a person not be send forward for trial by that court.

The Government considers there remains a substantial threat from terrorist activity, in particular from so-called dissident paramilitary groups. In addition, as we have seen from the events of last week, with the murder of four men, organised criminal gangs have a contemptuous disregard for the rule of law and are prepared to take any measures to subvert it. It is against such a background that the provisions of the legislation are maintained. Although it is so far the case that no cases under section 8 have fallen to be tried in the Special Criminal Court, that does not invalidate the reasoning for having such a provision on the Statute Book.

The Deputy also asked about the response to the recent Supreme Court judgment concerning section 29(1) of the Act. I intend to bring proposals to Cabinet shortly to provide for a search power which is in conformity with the decision of the court. Pending that legislation, the Garda Síochána can avail of other statutory powers which allow applications for search warrants to be made to District Court judges in the first instance. My Department is making arrangements to brief the Opposition spokespersons on my proposals in this regard. This is expected to take place tomorrow.

Jonathan O'Brien (Cork North Central, Sinn Fein)
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I spoke to the Minster about this last week. This question was scheduled for last Thursday; however, I was unable to attend and it has been rescheduled. Sinn Féin has long said that the Offences Against the State Act should be repealed and there is a growing call for its repeal. Various organisations describe it as draconian. The Minister referred to section 8 of the Criminal Justice (Amendment) Act 2009 and Part 5 of the Offences Against the State Act. We have yet to see anyone prosecuted under that provision. The Offences Against the State (Amendment) Act of 1998 contains a number of sections that have not been used while others have been used on rare occasions. There is a great difference between the number of people arrested under the legislation and the number of people who end up in court and are convicted.

Michael Kitt (Galway East, Fianna Fail)
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Can we have a question please?

Jonathan O'Brien (Cork North Central, Sinn Fein)
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The report laid before the House last year showed 764 people arrested under the provisions of section 30, yet only 38 convictions were secured. The legislation needs to be repealed because it is not working. A recent court decision referred to section 29. Can the Minister comment on the number of cases pending on which the court decision will have an effect?

Alan Shatter (Dublin South, Fine Gael)
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I have no intention of seeking to repeal the Offences Against the State Act. The Deputy knows the remaining and continuing threat from what are sometimes referred to as dissident organisations. I regard them as urban terrorists intent on destroying the peace process in Northern Ireland and on the whole island of Ireland. This State needs to have available to it the mechanism of the Offences Against State Act to deal with those intent on murder and mayhem for their perceived political reasons on the island of Ireland. We also need it for gangland crime. Deputy Calleary was correct to raise the events of the past few days, when we saw horrific and barbaric murders in the context of those engaged in organised crime, primarily in the drug area. We need to ensure that the Garda Síochána has all legislative backup required to address this area. On occasions, prosecutions are brought where it is not necessary to utilise the provisions of the Offences Against the State Act. I presume the Deputy welcomes this. The manner in which the legislation has been amended and extended, to apply not only to our recalcitrant militant terrorists but also organised crime, is an important backup in the armoury available to the Garda Síochána and the facility to enable certain cases to be held in the Special Criminal Court. This is important in circumstances where a jury could be otherwise intimidated and justice may not result when appropriate prosecutions are taken.

Jonathan O'Brien (Cork North Central, Sinn Fein)
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The Minister mentioned dissident republicans.

Michael Kitt (Galway East, Fianna Fail)
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A question please.

Jonathan O'Brien (Cork North Central, Sinn Fein)
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When we discussed the retention of certain sections of the Offences Against the State Act last year, everyone in the House renewed the call on these groups to cease their activities. We will renew it again. The Minister referred to section 8, which has not yet been used. In considering the entirety of the Offences Against the State Act, aspects of it do not work and are now being used for unintended purposes. We need to consider repealing this legislation. Elements of it are draconian and inappropriate for their purpose.

Alan Shatter (Dublin South, Fine Gael)
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The Deputy cannot have it every which way. He cannot want to bring an end to the violence continuing to be perpetrated in Northern Ireland, particularly by recalcitrant terrorists, and bring an end to gun crime as engaged in by organised crime in the Republic. The Deputy cannot want all of that and at the same time want to repeal the Offences Against the State Act because it is part of the essential legal army available to the Garda Síochána and to the State to protect the law abiding citizens of this State. The Deputy cannot look in two different directions simultaneously.

In every piece of legislation enacted in the criminal law area there are certain parts of the legislation that are more regularly utilized than others and there are some parts of legislation enacted so as to provide additional protection should it be required. In the context of criminal investigations and prosecutions, in a number of instances there are alternative pieces of legislation that may be utilised depending on the overall background circumstances but this legislation has been part and parcel of a protective legislative architecture for the State and for the wider community for very many years and, as Minister for Justice and Equality, I will not be repealing it. If it requires amendment in some areas to make it more effective, that will happen. Over the years Governments of different political persuasions have brought forward appropriate amendments as circumstances have changed.

Jonathan O'Brien (Cork North Central, Sinn Fein)
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Is that something the Minister can examine?