Michael McDowell (Dublin South East, Progressive Democrats)

There is a worldwide recognition that the response to the challenge of international terrorism requires concerted action and co-operation by the international community in addition to action on the part of individual states. International terrorism strikes at universal values such as the sanctity of human life, tolerance of differing views, the freedom to advocate those views and a commitment to change by democratic means alone. Our response must be to uphold and protect such values and to deny international terrorists the means and opportunities to launch attacks which aim to destroy these values.

Moreover, the terrible images and heartbreaking stories that are born of terrorist atrocities serve as a constant reminder that we, as legislators, have a duty to ensure that terrorists will find no comfort in this jurisdiction. Such a solemn duty merits decisive action and not merely fine words or rhetoric. The horrific terrorist attack in Madrid on 11 March last year reminded us, as if we needed it, that terrorism has not gone away and that Europe is equally vulnerable to the threat of terrorism.

The United Nations has been the focal point in framing the response at the level of the world community, while the European Union has played the key role at regional level. That response has provided the central part of the context in which this Bill has been framed. Security Council Resolution 1373, adopted in 2001, specifies a range of measures on which states are required to take action. In particular, it calls upon states to combat the financing of terrorism and to become parties to the relevant international conventions. At European Union level, political agreement was achieved at the meeting of the Justice and Home Affairs Council in December 2001 on a framework decision on combating terrorism. The framework decision provides for a common definition of terrorist offences, including offences relating to terrorist groups, and was formally adopted by the Council on 13 June 2002. The Oireachtas had earlier approved Ireland's agreement to its adoption.

We are obliged, as a member state of both the United Nations and the European Union, to enact legislation, which will enable us to give effect to these commitments. We on this island have, unfortunately, had a great deal of experience in facing the challenge of terrorism. As a result, our existing legislation has traditionally been more comprehensive than that in many other countries. However, it should be remembered that our existing legislation has been primarily framed with reference to the threat posed by groups indigenous to the island of Ireland. It is clear that we need additional legislative provisions to counter the international terrorist threat. I will now outline the key elements of the Bill.

The Bill will give effect to a number of international instruments directed against terrorism and will enable us to meet commitments which the State has undertaken as part of the European Union and the broader international community, including commitments arising from UN Security Council Resolution 1373. It will also amend our law more generally to enhance the capacity of the State and its police force to address the problem of international terrorism. It will make further provision for a number of additional measures directed, in particular, against the financing of terrorism.

More specifically, the Bill serves three essential purposes: first, it will give effect in our law to the EU framework decision on combating terrorism; second, it will give effect to the United Nations Conventions Against the Taking of Hostages, on the Prevention and Punishment of Crimes against Internationally Protected Persons and for the Suppression of Terrorist Bombings; and, third, it will give effect to the United Nations Convention for the Suppression of the Financing of Terrorism. I will outline the main provisions in the Bill by reference to these three essential purposes.

Part 1 defines certain terms used in the Bill and provides for the bringing into force of the Bill when enacted.

Part 2 will give effect to the framework decision on combating terrorism adopted by the Council of the European Union on 13 June 2002, which, for convenience, is set out at Schedule 1. This framework decision is directed to the approximation of the laws of the member states of the European Union in respect of a common definition of terrorist offences, including those relating to terrorist groups. This new common understanding of what terrorism means will be important not only in providing a co-ordinated EU-wide response to terrorism but also in facilitating cross-border co-operation in tackling it. Framework decisions are binding on member states as to the results to be achieved but leave to national authorities the choice of form and methods and do not entail direct effect. The Bill, therefore, proposes to make the necessary provision in our law to give effect to the framework decision and accordingly provides for terrorist offences to form a separate and distinct category in our law. It also makes provision for terrorist groups by way of the application of the relevant provisions of the Offences against the State Acts to such groups and for enhanced penalties to attach to terrorist offences in certain circumstances.

The definitions are contained in section 4. For example, "terrorist activity" is defined by reference to offences under our law which are committed in or outside the State with the intent of seriously intimidating a population, unduly compelling a Government or international organisation to perform or abstain from performing any act or seriously destabilising or destroying the fundamental political, economic or social structures of a state or an international organisation.

The specified offences for the purpose of the definition of "terrorist activity" are set out in Part 1 of the Second Schedule and comprise those offences under Irish law which correspond to the specified categories of intentional acts set out in Article 1 of the framework decision. These are serious offences, for which persons are liable to be tried on indictment, involving violence against persons or property and related firearms and explosives offences or offences involving chemical or nuclear weapons. Likewise, the required intent for the purpose of the definition follows closely the wording of the framework decision.

Section 6 makes provision for terrorist offences by reference to the definitions in section 4 and in keeping with the requirements of the framework decision. Thus, section 4(1) provides that a person who engages in terrorist activity or terrorist-linked activity in, or in certain circumstances, outside the State, is guilty of an offence. It also makes attempting to engage in terrorist activity or in terrorist-linked activity and threatening to do so in or outside the State an offence. The circumstances in which terrorist offences committed outside the State will be offences in our law are governed by section 6(2) and 6(3) and correspond to those circumstances in which Article 9 of the framework decision requires us to take extraterritorial jurisdiction.

Section 6(4) provides that subsection (1) will not apply in respect of the activities of armed forces during an armed conflict in so far as those activities are governed by international humanitarian law or the activities of military forces of a state in the exercise of their official duties in so far as those activities are governed by other rules of international law. Similar provisions are made in regard to the UN convention offences in Part 3, in keeping with the relevant requirements of those conventions. This does not mean the activities of armed forces are not subject to any law but that they are subject to other existing rules of international law and not to the framework decision.

Section 6(5) was inserted by way of an official Report Stage amendment in the Dáil. It arises from concerns expressed regarding the breadth of the definition of "terrorist activity" in the Bill. The effect of the subsection is to provide, for the avoidance of doubt, that engagement in an act of protest or industrial action does not constitute an act of terrorism without the necessary intention defined earlier.

Concerns were also expressed about the possibility that a person engaged in activity against an oppressive or tyrannical regime could be convicted under the legislation. After much consideration of this complex issue, I tabled an amendment on Report Stage in the Dáil to insert a new subsection (6). Thus, section 6(6) provides that the consent of the Attorney General is required in cases where a person is charged with an offence, in or outside the State, with the intention of unduly compelling a government of a state, other than a member state of the European Union, to perform or to abstain from performing an act or of seriously destabilising or destroying the political, constitutional, economic or social structures of such a state.

It is difficult to distinguish between what in colloquial terms could be described as terrorists and what in the past have been described as freedom fighters and it is almost impossible to devise a legislative distinction between what is a tyranny and what is not. In these circumstances, the only practical way to give effect and be faithful to the framework decision while, at the same time, avoiding the possibility that persons acting legitimately against a tyranny, for example, would be prosecuted in the courts in a manner repugnant to our values was to vest in the Attorney General the same function he or she exercises under the Official Secrets Act and in regard to fisheries prosecutions.

Sections 6(7) and 6(8), recognising the special difficulties that can attach to proving offences of specific intent, also make provision for certain circumstances in which the existence of the intent required for the purposes of committing the offence of engaging in or attempting to engage in terrorist activity may be presumed to exist, subject to the right of the accused to rebut that presumption. The penalties that will apply to persons convicted of terrorist offences are set out in section 7. This provides, in keeping with Article 5 of the framework decision, for enhanced penalties in certain circumstances by reference to the penalties imposable for the same offence when committed without the special intent required for terrorist offences. The penalty imposable will be the same where it is a sentence of imprisonment fixed by law or imprisonment for life but enhanced maximum penalties will be available in all other circumstances.

Section 5 makes provision for terrorist groups, as defined in section 4, by way of the application of the relevant provisions of the Offences against the State Acts to such groups whether based in or outside the State. This will allow the requirements imposed by Articles 2 and 9 of the framework decision to be met in keeping with our existing law directed to unlawful organisations. It is also in keeping with a recommendation of the committee to review the Offences against the State Acts that the Government should have power to make a suppression order in respect of foreign terrorist organisations.

The section provides that terrorist groups will be unlawful organisations for the purposes of the Offences against the State Acts and that the relevant provisions, including, for example, provision for the offences of membership and directing an unlawful organisation, will equally attach to terrorist groups, as will the power of the Government to make suppression orders in regard to them. Provision is made under section 6(1)(b) for certain specified offences relating to unlawful organisations also to be offences when committed outside the jurisdiction. The offences specified for this purpose comprise the existing offences of directing and membership of, as well as the proposed new offence of providing assistance to, an unlawful organisation.

Part 6 makes provision for certain amendments to the Offences against the State Acts which are directed principally to the requirements of the framework decision. These include the provision for a new offence of providing assistance to an unlawful organisation under section 49. This provision flows in part from a recommendation in the report of the committee to review the Offences against the State Acts, which recognised there could be cases where persons are closely associated with unlawful organisations and actively further their ends but are not, or cannot be proven to be, members of the organisation. It is also in keeping with the concept of participation in a terrorist group used in Article 4 of the framework decision, which would not necessarily be fully met by the existing offence of membership.

I hope the provision being made in the Bill for the purposes of giving effect to the framework decision on combating terrorism does not give rise to concern on the part of those who seek change in our society or who engage in legitimate protest. I have included specific provisions in sections 6(5) and 6(6) to ensure these rights are protected.

The Bill does not make it an offence to seek change nor does it make it an offence to have a cause. The right to seek and work for change is fundamental in our society and under our Constitution and the Government will continue to defend that right, including the right of persons to espouse causes and views with which the Government itself may disagree. The Bill will, in its own way, protect such persons from those who would threaten that right. The Bill draws the line where persons or organisations engage in concerted campaigns of violence in support of such causes, which is not legitimate.

The purpose of Part 3 is to enable Ireland to become party to three UN conventions, which are relevant in the context of the international effort against terrorism. These are the Convention Against the Taking of Hostages, the Convention for the Suppression of Terrorist Bombings and the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons. Ireland signed the terrorist bombing convention on 29 May 1998 and will ratify that convention and accede to the remaining two conventions following the enactment of this Bill. Both the UN and the EU have called on states to ratify all relevant terrorism conventions as soon as possible.

Convention-specific offences are being created in the Bill for the purpose of each of the three conventions to ensure full compliance with the requirements under each convention, including the requirement to take extraterritorial jurisdiction. These offences will in certain cases supplement existing offences under our law directed to the same or similar conduct. They will, at the same time, ensure that gaps between existing offences and the offences as defined in the convention are bridged. This arises, for example, in the case of the Convention for the Suppression of Terrorist Bombing where the convention offence extends to the use of devices which release biological agents and toxins. These are covered by existing offences under the Explosive Substances Act 1883, the Chemical Weapons Act 1997 and the Radiological Protection Act 1997. Sections 9 to 11 provide for the new offences. Section 9 provides for the new offence of hostage-taking, section 10 provides for the offence of terrorist bombing while section 11 makes provision in regard to internationally protected persons.

The third key element of the Bill is the measures contained in Parts 4 and 6 intended to give effect to the United Nations Convention for the Suppression of the Financing of Terrorism and aimed at combating terrorist financing more generally in keeping with our obligations under UN Security Council Resolution 1373 and the financial action task force recommendations.

Even before September 11, it was clear the international community was concerned about the impact of the movement of funds intended for terrorist purposes on the worldwide escalation of acts of terrorism. This concern was partly reflected in the drawing up of the United Nations Convention for the Suppression of the Financing of Terrorism, which was opened for signature on 10 January 2000. Ireland signed the convention on 15 October 2001. A primary purpose of Part 4 of the Bill is to provide the statutory framework for ratification by Ireland of the convention. The measures provided for in that convention have in turn been supplemented by UN Security Council Resolution 1373 which, in addition to calling on states to ratify the convention itself, also requires them to freeze, without delay, funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts.

The key provision in the Bill for the purpose of giving effect to the convention is section 13 which makes provision for the new offence of financing terrorism and which gives effect to the definition of that offence in Article 2 of the convention. It also goes beyond the requirements of the convention to include the financing of terrorist groups as defined in section 4 of the Bill and terrorist offences within the meaning of section 6 of the Bill to the extent that these are not covered by the convention. The jurisdiction provisions in section 13 correspond to both the mandatory and discretionary jurisdiction requirements in Article 7 of the convention. The one exception is that they do not apply to the framework decision element of the offence as this is covered by the jurisdiction provisions of section 6(2) and 6(3). The definition of "funds" in Article 1 of the convention is reflected in section 12 of the Bill. It is a comprehensive definition covering assets of every kind with the emphasis very much on financial transactions.

Part 4 of the Bill also provides for two distinct and dedicated procedures for the purpose of giving effect to Article 8 of the convention. Both procedures are court-based and build on existing provisions of our law. The key difference between them is that the first will enable an application to be made to freeze funds intended for use in committing terrorist offences independently of criminal proceedings, whereas the second will be available for use in conjunction with such proceedings in respect of the new offence of financing terrorism. The two procedures, therefore, will complement each other.

Provision for the first of these procedures is made in sections 14 to 20, inclusive, of the Bill and will enable funds which are being used, or which may be intended to be used, for the purpose of committing terrorist offences, including the offence of financing terrorism, to be frozen and ultimately made subject to a disposal order in favour of the State. The procedure closely mirrors the existing provisions of the Proceeds of Crime Act 1996.

Section 14 accordingly will enable the High Court to make an interim order prohibiting a person from disposing of funds for a period of up to 40 days where it is satisfied, on foot of an ex parte application by a chief superintendent of the Garda Síochána, that a person possesses funds that are being used, or may be intended for use, in the commission of a terrorist offence or a terrorist financing offence. Section 15 will enable the High Court to make an interlocutory order extending the period during which the funds are frozen unless satisfied by any person claiming an interest in those funds that they are not intended for such use or that there would be a serious risk of injustice.

Section 16 will in similar circumstances enable the High Court to make a disposal order in favour of the State where an interlocutory order has been in force for a period of not less than seven years. The Criminal Assets Bureau is concerned with the proceeds of crime. One makes an ex parte application to freeze suspect funds. Anybody claiming a bona fide interest in the funds has the right to come to court and establish the funds are not intended for terrorist purposes. If that does not happen within a period of six years, it is possible for the funds to be forfeited to the State in the seventh year.

The Bill also makes provision for a statement by a chief superintendent that he or she believes funds are being used or are intended for use in committing or facilitating the commission of a terrorist offence to be evidence, provided that the High Court is satisfied that there are reasonable grounds for that belief. In addition, it provides for the payment of compensation to a person in respect of any loss incurred by a person in respect of orders made in accordance with the procedure.

The second procedure in Part 4 of the Bill is contained in sections 21 to 41, inclusive. These provide a statutory framework which will enable the confiscation, restraint and forfeiture provisions of the Criminal Justice Act 1994 to be applied for the purpose of the new offence of terrorist financing. It is necessary to legislate in this way as the existing relevant provisions of the 1994 Act only allow for the confiscation and restraint of the benefits derived from drug trafficking and the benefits from an offence other than drug trafficking. The Bill amends the 1994 Act to provide a dedicated procedure for the purpose of the offence of financing terrorism.

The effect of those amendments will be that where a person has been convicted of, and sentenced for, an offence of financing terrorism, the Director of Public Prosecutions can apply to the court to determine whether the person holds funds subject to confiscation. That is dealt with at length in the ensuing sections.

Similarly, it is proposed to amend section 23 of the 1994 Act in section 30 of the Bill by empowering the High Court to make a restraint order in circumstances where proceedings have been instituted against a defendant for an offence of financing terrorism, where the proceedings have not been concluded or where a confiscation order has been made or it appears to the court that there are reasonable grounds for thinking that a confiscation order may be made. This mirrors the existing provisions of the 1994 Act relating to the making of restraint orders for a drug trafficking offence or another indictable offence for the proceeds of crime.

In addition, the High Court will be able to order compensation to be paid to any person whose property has been affected by an order of restraint and the proceedings do not result in conviction for an offence of financing terrorism, or the conviction is quashed.

The 1994 Act also contains important provisions directed at the prevention and detection of money laundering. Section 32 of the Bill amends the relevant provisions of the 1994 Act to extend the obligation on financial institutions to adopt measures for the purpose of preventing and detecting money laundering to also cover the prevention and detection of the offence of financing terrorism. Likewise, under section 36, the obligation on financial institutions to report to the Garda Síochána any suspicion of money laundering is being extended to include an obligation to report any suspicion of an offence of financing terrorism which is being committed in connection with their business. These provisions will provide an important means by which the existence of terrorist funds may come to light and provide a basis for recourse to the procedures for the freezing of those funds, which I have just outlined.

Section 42 empowers the Minister for Finance to make regulations directed at freezing terrorist funds so that enabling acts adopted by the institutions of the European Communities for this purpose can be given full effect. The real significance of section 42 is that it provides for an indictable offence for breach of the regulations. At present, breach of the regulations can only be tried summarily. This provision will have particular application to measures adopted within the EU for the purpose of giving effect to UN Security Council Resolution 1373.

Part 6 of the Bill will also make provision for another important element of the package directed at combating the financing of terrorism by way of an amendment to the Offences against the State Acts. The Bill will allow existing provisions of those Acts which have application to the property of unlawful organisations to be applied to terrorist groups. Certain additional measures are also provided for in the Bill including, in section 51, provision for a procedure directed at the recovery of the property of unlawful organisations in respect of which a suppression order has been made which stands forfeited to the Minister. This procedure, which will be court-based, draws on the provisions of the Offences against the State (Amendment) Act 1985 and the Proceeds of Crime Act 1996 for inspiration and is intended to complement the procedure under the 1985 Act which applies to the moneys of unlawful organisations held in a bank. Therefore, items into which money has been converted will now be vulnerable to pursuit in this manner. It includes provision allowing any interim order made by the court to be challenged by any person claiming ownership of the property and for the payment of compensation in appropriate circumstances.

Sections 50 and 52 of the Bill make certain other amendments to the Offences against the State Acts also for the purpose of combating the financing of terrorism. These include updating the definition of property in line with other provisions of the Bill and amendments to the 1985 Act to ensure that it will be available for use as circumstances require.

Part 7 of the Bill deals with amendments to the European Arrest Warrant Act 2003. As Senators will be aware, that Act implemented the EU framework decision on the European arrest warrant. The amendments contained in Part 7 of this Bill arise out of experience gained in the administration and implementation of the 2003 Act. They are also designed to ensure we have effective extradition and surrender arrangements. It is essential that we have sound arrangements in this area, especially in the context of the threat from terrorism.

The amendments are, in the main, of a technical and procedural nature and seek in many instances to clarify, in the light of experience, some provisions in the Act. The more significant of the amendments relate to the revised sections 22 to 24, inclusive, of the European Arrest Warrant Act 2003. The Act currently requires that the surrender of the wanted person to the issuing state under a European arrest warrant must be refused unless certain undertakings are given by that issuing state in relation to the issues I have mentioned or unless it can be established that the law of the issuing state makes adequate provision with regard to those issues. We have experienced some difficulty and delay in obtaining the undertakings as several member states feel the terms of the framework decision as it operates between member states that have implemented it provide sufficient assurance on the issues, without the need for such undertakings.

I have reconsidered our position in conjunction with the Attorney General and I am satisfied the new arrangements now being proposed will continue to provide the wanted person with the necessary level of protection while at the same time overcoming the difficulties experienced with the existing provisions. Under the new arrangements, the High Court will be required to refuse surrender where, on the basis of a case made before it by or on behalf of the wanted person, it is satisfied that a decision has not been made to charge and try the person for the offence for which he or she is sought or, as respects specialty, onward surrender or extradition, that the relevant provisions are not being respected by the issuing state. I am confident that we will rarely if ever find that a member state is not meeting its obligations under the framework decision or that it is not acting in a bona fide manner with regard to a warrant it issues. However, the new provisions ensure that, even in such rare cases, we will have an adequate means of protecting anyone whose situation could be jeopardised should there be any non-compliance by a member state.

I expect to introduce some further amendments to Part 7 on Committee Stage. These new amendments will relate to amendments already inserted in the Dáil and can be considered as completing and tidying up the changes already begun by the earlier amendments.

I am also considering, in conjunction with the Attorney General, bringing forward on Committee Stage an amendment dealing with the retention of communications data. The declaration on combating terrorism drawn up after the Madrid bombings of March 2004 directed the Council to adopt an instrument on data retention by June 2005. It may be necessary to introduce an amendment on data retention to bridge the gap until negotiations on the EU instrument, a framework decision, have been completed after which I intend to publish a more comprehensive communications data retention Bill without delay.

These proposals represent the key elements of the Bill. The Bill also contains certain other procedural provisions as well as consequential amendments to a number of other Acts to which I could also refer. However, I am conscious that I have already spoken at length. I hope that what I have said will assist the House in its task of considering the Bill.

This Bill is necessary to enable us to comply with our commitments as members of the international community and our legal obligation to comply with the framework decision under EU law. Furthermore, our existing legislation has been framed with reference to the threat posed by groups indigenous to Ireland. We clearly need additional legislative measures to counter the international terrorist threat we also face. We must ensure that our legislation is as effective against international terrorists as it is against domestic terrorists. Therefore, I commend the Bill to the House.