Michael McDowell (Dublin South East, Progressive Democrats)

The motion before the House seeks approval for the continuance in force of those sections of the Offences against the State (Amendment) Act 1998 which would otherwise cease to be in operation on 30 June 2004. It is worth recalling the circumstances in which the 1998 Act was enacted. In August 1998, the Omagh bomb brutally snuffed out the lives of 29 innocent people and injured more than 200 others. That terrible atrocity has reverberated throughout the island of Ireland ever since, and rightly so. There was a determination then, as now, that those responsible for that mass murder would not succeed in subverting the democratically expressed will of the people and that the Northern Ireland conflict should be resolved only by peaceful means and on the basis of consent.

To date, one person has been convicted in this jurisdiction on a charge related to the Omagh bomb, and another person has recently been charged in Northern Ireland. I emphasise that the investigation is continuing at a very high level on both sides of the Border, with excellent co-operation between the Garda authorities and the Police Service of Northern Ireland. It is worth reiterating that the Garda Síochána will never cease in the search for those responsible for that atrocity.

It will also be recalled that, in recognition of the particular circumstances surrounding the enactment of the provisions of the 1998 Act, there was general agreement that the Act should be regularly revisited by the Oireachtas. The purpose of this recurring Oireachtas scrutiny is to determine if the circumstances then prevailing in 1998 justify the continuance in force of its provisions or whether there had been a change in circumstances sufficient to convince the Oireachtas that the provisions were no longer needed. Accordingly, under section 18 of the Act, as amended by section 37 of the Criminal Justice Act 1999, and by virtue of resolutions passed most recently by both Houses of the Oireachtas on 25 and 26 June 2003, sections 2 to 12, 14 and 17 will cease to operate from 30 June 2004. That is, of course, unless a further resolution is passed by each House authorising the sections to continue to operate for a period of up to 12 months.

In addition, there is a requirement in the 1998 Act on the Minister for Justice, Equality and Law Reform to lay a report on the operation of the Act before each House of the Oireachtas prior to any consideration by the Houses of the renewal of the provisions. Such a report was laid before this House today. The conclusion of that report — this is also the view of the Garda authorities — is that the renewal of the provisions for a further year is absolutely necessary. The regrettable reality is that those responsible for the Omagh bomb continue to pursue and plan a campaign of violence and that there is no substantive change in the circumstances which led to the enactment of the 1998 Act. In this regard, the Real IRA and the Continuity IRA, which are factions of the republican movement, continue their calculated repudiation of the democratically expressed wishes of the people of Ireland, North and South, for peace in the form of the Good Friday Agreement. These paramilitary groups arrogate to themselves the right to kill and maim in the name of a people and a nation who, time and again, have rejected their path of violence.

Let us not forget that these groups, day in and day out, seek to plan and execute terrorist attacks, both small and large. The House may recall that, in June last year, two enormous improvised explosive devices were intercepted, one by the Garda Síochána in County Louth and the other by the PSNI in Derry. Both had the potential to be two more Omaghs, and it was only through dint of excellent police work that further tragedy on a massive scale was averted.

Before turning to the individual sections of the Act, I should mention the current position as regards the report of the committee to review the Offences against the State Acts, 1939 to 1998. The report is an extensive one which deals with complex issues of law and policy. It involves important considerations concerning the balance to be struck between national and international security on the one hand and civil liberties and individual rights on the other. Those recommendations in the report of direct relevance to the purpose and scope of the Criminal Justice (Terrorist Offences) Bill 2002 were considered in the context of the preparation of that legislation. The Bill, which is currently awaiting Committee Stage debate in the Dáil, will, accordingly, give effect to a limited number of recommendations to that end. A fuller consideration of the recommendations of the committee will be finalised once this Bill has been enacted, and I will then bring further proposals to the Government.

I will turn now to the individual sections of the Offences against the State (Amendment) Act 1998 that this House is being asked to continue in force for a further 12 months. In particular, I will briefly outline their purpose and indicate to the House how they have been utilised in the past 12 months. Section 2 was utilised on 29 occasions, with one person charged and convicted in the reporting period. In addition, six persons were convicted during the period under report, having been charged prior to that period in cases where this section was utilised.

Section 5 was utilised on 16 occasions. This section provides for the drawing of adverse inferences in the prosecution of a person for any offence under the Offences against the State Acts, any offence scheduled under the Acts, and any offence arising out of the same set of facts as such an offence, provided that the offence carries a penalty of five years imprisonment or more. The effect of this section is to allow a court to draw inferences where the accused relies on a fact in his defence that he could reasonably have been expected to mention during questioning or on being charged but did not do so. As with section 2, a person cannot be convicted of the offence solely on an inference drawn from such a failure.

Section 7 was utilised on 12 occasions. This section makes it an offence to possess articles in circumstances giving rise to a reasonable suspicion that the article is in possession for a purpose connected with the commission, preparation or instigation of specified firearms or explosives offences.

Section 9 was utilised on 30 occasions. This section makes it an offence to withhold information which a person believes might be of material assistance in preventing the commission by another person of a serious offence or securing the apprehension, prosecution or conviction of another person for such an offence.

Section 10 was utilised on one occasion. This section extends the maximum period of detention permitted under section 30 of the Offences against the State Act from 48 hours to 72 hours, but only on the express authorisation of a judge of the District Court. In the reporting period, no charges resulted in the granting of an extension order, but a file was sent to the Director of Public Prosecutions.

Section 11 was utilised on four occasions. This section allows a judge of the District Court to permit the re-arrest and detention of a person in respect of an offence for which he was previously detained under section 30.

Section 14 was utilised on 76 occasions. The effect of this section is to make the new offences created under sections 6 to 9, inclusive, and 12 of the 1998 Act scheduled offences for the purposes of Part V of the 1939 Act. This means that persons suspected of committing these offences are liable to arrest under the provisions of section 30.

I would now like to turn to those sections of the 1998 Act that were not utilised, namely, sections 3, 4, 6, 8, 12 and 17. Section 3 provides that, in proceedings for an offence of membership of an illegal organisation, the accused must give notification of an intention to call a person to give evidence on his behalf. This section was not used.

Section 4 amends section 3 of the Offences against the State (Amendment) Act 1972. The effect of the 1972 provision is that any statement or conduct by a person accused of membership of an unlawful organisation implying or leading to a reasonable inference that he was a member of such an organisation shall be evidence that he was then such a member.

Section 6 establishes the offence of directing at any level of the organisation's structure the activities of an organisation in respect of which a suppression order has been made. Although it was not utilised in terms of criminal charges during the period, one senior member of a dissident republican group was found guilty of this offence last August and was sentenced to 20 years imprisonment to run concurrently with a sentence of six years imprisonment for membership of that organisation.

Continuing with those sections of the 1998 Act that were not utilised in the period under report, section 8 makes it an offence to collect, record or possess information which is of such a nature that it is likely to be useful to members of an unlawful organisation. Section 12 makes it an offence for a person to instruct or train another person in use of firearms or explosives or to receive such training. Although this section was not used in the reporting period, one person arrested for membership was subsequently charged with receiving training in the use of firearms. Section 17 builds on the provision in the Criminal Justice Act 1994 providing for the forfeiture of property.

This information is based on data received from the Garda authorities and is contained in the report on the Act laid before this House. This report, together with the previous reports, shows that the key provisions of the Act are continuing to be used to good and proper effect. One of the most significant results in the Garda Síochána's fight against subversive activity was the conviction of a person on a charge of conspiracy to cause an explosion related to the Omagh bomb. The provisions of the 1998 Act were used appropriately by the Garda Síochána in this case and will continue to be used in its efforts to bring to justice all of those responsible for that and other unjustifiable acts of terrorism. Equally, however, the relatively modest number of occasions on which the provisions of the 1998 Act have been used by the Garda Síochána demonstrates that these provisions have been applied in a reasoned and proportionate manner.

Much has been achieved in the implementation of the Good Friday Agreement and, although the current pace of progress leaves much to be desired, it is the only show in town. However, as I have already mentioned, there are those who would do everything in their power to subvert the peace process through violence. One need only examine the recently published First Report of the Independent Monitoring Commission to see just how much of a threat these dissident republican groups pose.

In the IMC report, the Real IRA is described as having access to a significant quantity of arms and equipment and as being potentially a very dangerous terrorist group. Since the Omagh bombing, attacks attributed to the Real IRA include the bombing of Shackleton Barracks in February 2000, a sporadic but high-profile campaign in Britain, including a rocket-propelled grenade attack on the Security Intelligence Service headquarters. There have also been some recent attacks on the British military, as well as against people involved in the Policing Board and district policing partnerships.

The IMC report goes on to state that the primary focus of Real IRA attacks remains on security force bases and personnel in Northern Ireland and on those involved in the new policing arrangements but that a wide range of targets cannot be ruled out, including targets in Britain.

The IMC characterises the Continuity IRA in similar vein. Although it is described as a limited organisation with a relatively small membership, the IMC considers that it can, by operating through small units, mount effective, if sporadic, attacks. The Continuity IRA is further said to have access to an unknown quantity of weapons and explosives and has technical expertise sufficient to construct improvised explosive devices. In the last year or so, the group has carried out a number of successful attacks, including an attack on a military barracks, one on a town hall, and one on a Unionist politician's constituency office. It was also responsible for a recent arson attack on the vehicle of a member of a district policing partnership and has targeted other members. Furthermore, it has recently been involved in setting up new active service units.

Finally, the IMC goes on to describe the relationship between the Real IRA and the Continuity IRA as, seemingly, one of co-operation.

That is a small glimpse of their activities because I know from my functions as Minister for Justice, Equality and Law Reform that both organisations are also engaged in major low grade criminality, connected to the drugs world, levying drug pushers, sorting out disputes between them and other terrible crimes. They will also lend their firearms for reward to common criminals to carry out criminal acts. That is what they are up to. When thinking of the invocation of Pearse and others at the end the 1916 Proclamation not to bring dishonour and shame upon the arms of the republican movement, I wonder how even they, in their warped and twisted logic, square that one.

This motion offers us the opportunity to keep in being, although under scrutiny, valuable provisions of the Offences Against the State (Amendment) Act 1998 which I would be happy at some stage to tell the House were no longer necessary but I would be derelict in my duty if I was to do so now.