Dáil debates

Wednesday, 15 June 2016

Offences against the State (Amendment) Act 1998: Motion (Resumed)


The following motion was moved by the Tánaiste and Minister for Justice and Equality, Deputy Frances Fitzgerald, on Tuesday 14 June 2016:

7:30 pm

Photo of Shane RossShane Ross (Dublin Rathdown, Independent)
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I congratulate the Tánaiste and the Minister of State, Deputy Stanton, on introducing this measure. It is difficult to debate this in the sort of mature way everybody has, particularly because of the history this particular measure has. However, I think we are saying that today it is more about criminal gangs than about paramilitaries. It may be born in paramilitary traditions and lore, and it was necessary in those days, but it is now equally necessary in order to tackle the criminal gangs that are threatening our society.

I said this yesterday, but it is important to underline it. Are we really expected to afford to those who murder and maim the sorts of democratic luxuries they cannot give to anybody else? It is an obscenity that they should be free and able to intimidate not just witnesses, but also jurors. It is simply and utterly wrong. It would be asking far too much of the victims, including the innocent people who have been murdered, the families of the victims and the communities who are threatened if we were to say, "Don't worry; we have some sort of extraordinary liberal democracy here which applies to ordinary citizens, but which we allow to be exploited by people who have no respect for those sorts of democratic values." I long for the day that everybody would be given absolutely equal treatment in the courts. However, that cannot be done for people who do not accept those types of democratic values that the 99% of the population now accept.

While I realise it is difficult to introduce measures of this sort and to repeat them every year, I welcome that the Government has this year decided for the first time not to guillotine a measure of this sort to allow a mature and sensible debate and to put it through even in the face of those difficulties.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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The next slot is a Fianna Fáil slot, which is not being taken up. I call Deputy Ó Snodaigh.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I listened to the debate yesterday, as I have listened to the equivalent debate every year since I was first elected in 2002. Other than the Minister, I am probably the only one who has read the report which supposedly authorises us to renew the removal of rights from people who are accused. The Minister who spoke just before me said that we should not grant the same rights to those who are accused. They are but accused; they are innocent until found guilty in a court of law. So they all should have the same rights as those who are innocent, those who are victims.

We are discussing two motions, something the last Minister did not have a clue about. There are two measures, one to deal with the Offences against the State (Amendment) Act 1998 and the other relates to the Criminal Justice (Amendment) Act 2009. I have read the reports because I am concerned, as everybody in this House should be, over the continuing renewal of measures that are supposed to address an emergency situation. What we are seeing is normalisation because these measures have been in place since 1998 or 1999 in the case of the Offences against the State (Amendment) Act 1998 changes, and later in terms of the Criminal Justice (Amendment) Act 2009.

They are rubber-stamped every single year. The Minister, Deputy Ross, was also wrong when he said there is no guillotine on these measures. There is a guillotine, in fact, because they have to be passed by a certain date. They are introduced here at the last minute. The reports on the Offences against the State (Amendment) Act 1998 and the Criminal Justice (Amendment) Act 2009, which extend to no more than four or five flimsy pages, are not circulated to Deputies. If a Deputy wants the reports, he or she has to go to the bother of contacting the Oireachtas Library, which will e-mail them to him or her, thankfully. In the past, Deputies had to find the reports for the current year and for each previous year. In recent years, the reports have outlined how these provisions have been used or abused. The vast majority of them are not used at all, which suggests that the Garda Síochána cannot use them, never mind all the existing laws it could apply to its work. I looked properly at this issue when I was my party's spokesperson on justice. I found that most of these provisions, if they were used at all, were used for trawling purposes only. In fact, no convictions led from most of these provisions. Section 5 has been repealed. Section 6 has not been used at all. Section 7 has been used twice. Section 8 has been used once. Section 12 should be repealed because it has never been used. I think section 17 has been used twice in the almost 17 years for which the Offences against the State (Amendment) Act 1998 has been in operation.

I come from and represent an area that has borne the brunt of major criminal activity in recent years. I am not saying the State should be weak on crime in any way. Like many others in the justice field, I do not believe we should suspend the right to a jury trial. We should not suspend one's right to have evidence produced to one or to one's defence team while one is in court, so that one can defend oneself. I believe juries can be protected. Many changes can be made to protect juries if there is evidence of intimidation. That does not happen, however, and it has not happened to any major extent in any of these cases. More needs to be done to protect witnesses. I have joined many victims' groups in calling for greater protection to be offered to victims of crime who are intimidated. Criminal gangs in my area have targeted victims. The job of the Garda Síochána is to protect such people. It cannot do that job unless it has the protections and resources to enable it to do so. We will not contribute to that by closing Garda stations and reducing Garda numbers. We do not need new laws for the Criminal Assets Bureau. If the existing laws, such as the proceeds of crime laws, were properly implemented, they would help crime fighters as they deal with the crimes we are discussing. The civilianisation of Garda stations would also be of assistance in this regard. We do not live in an emergency situation and we have not done so for many decades.

7:35 pm

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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As there are no more speakers offering to contribute, I invite the Minister of State, Deputy Stanton, to wrap up the debate. Two questions will have to be put after he has done so.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I am grateful to the House for its consideration today and yesterday of the proposed renewal of the Offences against the State (Amendment) Act 1998 and section 8 of the Criminal Justice (Amendment) Act 2009. I thank Deputies from all sides of the House for their contributions on both motions. I welcome in particular the speeches in support of the renewal of these provisions in the law. As I listened to those who spoke during the debate yesterday and again this evening, it struck me that there is a shared commitment to ensuring the Garda and the courts are able to deal appropriately with the most serious offences that may threaten the State and the operation of the criminal justice system.

Genuinely held concerns were expressed about the robust nature of these provisions. In particular, a number of Deputies expressed their opposition to the continued existence and use of the Special Criminal Court and these provisions. I have to respond to those Deputies by saying I respectfully disagree with them. Are we to accept that there is not a real and persistent threat on this island from republican paramilitary groups, the only agenda of which is murder and mayhem in complete defiance of democracy and human rights? Are we to accept in light of recent events in Dublin that we are not continuing to face a serious threat from gangs of ruthless criminals who have complete disregard for the law and absolutely no hesitation in using extreme violence? Are we simply to ignore these realities while choosing not to retain at our disposal the best means of supporting the gardaí and the courts in tackling these issues? This Government cannot and will not do that.

The provisions of the Offences against the State (Amendment) Act 1998 form the main body of the State's laws to counter subversive activity and terrorism. They complement the general criminal law. While they are out of the ordinary course, they are not emergency laws in the way that many people have tried to depict them. Over the course of the history of the State, especially during the Troubles on this island, these laws and the Special Criminal Court served to protect and safeguard the State from determined efforts to undermine it and its democratic institutions. It is surely beyond reasonable argument that a democratic State is entitled to and must take the measures it considers necessary to protect itself and its people, to ensure the protection of fundamental rights and freedoms and to allow civil society to flourish.

With regard to the Criminal Justice (Amendment) Act 2009, many Deputies will be aware from their own experiences as public representatives of the devastation caused by organised crime activities. The drugs trade, in particular, can wreck individual lives and communities. We must continue to meet this challenge head-on by providing the necessary resources and legislative supports to the gardaí and the courts to combat those who seek to undermine the law and to damage lives and communities in the process. We must also ensure a cross-sectoral approach, taking in housing, education, welfare, employment and other services, is part of the solution to the problem of organised crime. In taking legislative measures, we have to strike a balance between what is necessary and what is reasonable. It is not always an easy balance to strike, but I believe these measures achieve that balance.

I emphasise that these provisions do not operate in isolation from the rest of the criminal law and the range of protections available in the criminal process for people who are charged with serious offences. Time and again, our independent and impartial Judiciary has proved itself as a guarantor of the fundamental rights of the citizen. The provisions of the Offences against the State Acts and the Special Criminal Court have faced many challenges in the Supreme Court and at the European Court of Human Rights in Strasbourg. They have largely withstood those challenges. We should not ignore the key role of the Director of Public Prosecutions in this process, a role that is carried out independently in full accordance with the law. Some concerns were expressed about the process for the renewal of these provisions. Regardless of the ideal way to do this - that could be the subject of a genuine discussion - the current arrangements place the legislators in control. Members here and in the Seanad have the final say. This is the democratic way and I believe it has much to recommend it.

These Acts give the gardaí particular powers in relation to very serious criminal conduct. It seems to make no sense to call for additional Garda resources, which are being provided by the way, while in the same breath demanding the withdrawal of basic powers to fight the most serious crimes. The Garda deploys considerable operational resources to tackle terrorism and organised crime. As legislators, we must give the Garda and the courts the necessary means to bring terrorists and serious criminals to justice. I have no hesitation in agreeing that if circumstances were otherwise, laws such as these would not be needed. However, the stark reality is that until conditions allow, these provisions are a necessary addition to the general criminal law. I commend the motions to the House.

Question put.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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Under Standing Order 72, the division is postponed until Thursday, 16 June 2016.