David Norris (Independent)

I deplore this legislation and the absence of the Minister for Justice, Equality and Law Reform, who has not seen fit to show his face in the House. I am not surprised; perhaps he is ashamed. This is a dreadful day for the Oireachtas. It is a complete abrogation of democratic responsibility. The Seanad is being treated with contempt. Our principal responsibility is to review and refine legislation and put down amendments but it is obvious no amendments will be accepted. Once again, the Government is undermining the democratic function of Seanad Éireann. That is a disgrace.

This is rushed legislation and its aim is unclear. It was stated it is intended to address the problem of gangland violence but it will not do that. There are ways to approach it but this is not one of them.

An analogy is drawn with similar measures introduced in Britain but that has been done in the context of very intensive debate and with proper safeguards, which are absent from this Bill.

The Bill, as originally put before the other House a few weeks ago, drew a chorus of criticism from the entire legal profession. Today in The Irish Times there is a letter signed by a column of practising barristers which draws attention to the dangers implicit in this measure, for example, detention of people in police stations in the light of the Morris tribunal. That is what our experience has been, yet there is no clear reference to that or belief that the matters exposed by the Morris tribunal have been properly addressed in the issue.

There is also an article by Brendan Grehan, SC. He makes the point that barristers rarely bellyache about the introduction of new legislation because it means more jobs for them and more loot in their pockets but, unusually on this occasion, a very large number of barristers have objected. He mentions the fact that some improvements were made to the Bill in the Dáil but none will be made in this House. That is a shame. He also points out, as I have already indicated, that the English model is not being completely followed. He states:

Curtailing the right to silence has been defended by the Minister by reference to similar changes introduced to the law in England in recent times. However, in his proposals he has failed to introduce the strong protections of the right to legal advice which have been incorporated into the English measure.

He goes on to state, what I believe, that the justification of it being an emergency response to the gangland slayings, which we all deplore, raises other questions. If it is an emergency response, why is there not provision in the legislation for a review by the Oireachtas? Why does this emergency legislation last for one year and then to be reviewed by the Oireachtas? That is very unsatisfactory.

I would like to turn to some other questions of principle. Under the Constitution judges are appointed to administer justice. They are not supposed to be a rubber stamp but this Bill will have that effect, at least to a certain extent, for example when they are asked to extend detention by a period of five days. This is done on the opinion of somebody. An opinion is given evidential status. That is very worrying. There are also situations where, for example, the opinion of a garda cannot be properly tested. It becomes evidence, therefore, without being properly tested.

I turn to two briefing documents by which I have been impressed. The first one is from the Irish Council for Civil Liberties, which expressed considerable concern about the way the Bill is supposed to attack gangland crime and points out that a series of eminent barristers, including nine senior counsel and the law society as a group have called for the adoption of the Bill to be postponed until it can be fully debated. In other words, it is calling for the Bill to be postponed. I join that call. In the dying days of this Parliament and in the run-up to an election, this complicated material is being rushed through without any proper scope for full examination.

I can point again to the situation that arose with regard to the statutory rape case. Legislation was rushed through the Houses. The Minister said he did not want to rush it through but the Joe Duffy programme essentially forced him to do it, and he regretted it. He had cause to regret it subsequently.

I will vote against this Bill because it is bad legislation. It does not address the principle. The only way to do that is to examine the drugs problem. There is only one way to resolve that and it is not with the so-called war on drugs. It is to legalise, monitor and quality control drugs. I recognise this is a very serious problem and it must be done internationally. That is the only way. I can guarantee this Minister, the other Ministers in that Department and everybody else that we will be back here in a year's time and the situation will not have improved one iota but people's civil rights will have been eroded in a serious way.

Crime prevention orders are rather like the anti-social behaviour orders. They have the same effect, that is, people can be found guilty of an offence and jailed for conduct which is itself not a criminal matter. That is very worrying. Again, we are copying the United Kingdom in that regard but this whole area has been extensively debated in both Houses of Parliament, unlike the situation here.

On the seven days' Garda custody, the ICCL's position is that it be withdrawn pending further debate. It quotes the Council of Europe's committee on the prevention of torture which states:

... seven days in police custody without a charge is a long period of time. ... prolonged periods of detention of criminal suspects on police premises can lead to high-risk situations.

We had the Dean Lyons case, the whole episode of the Morris tribunal and so on and, as a result, it is recommending that this also be withdrawn.

Another point that worries me is the cavalier attitude of the Minister towards the status of commissions, review groups and reports. He quotes, for example, the balance in the criminal law review group and an interim report on the right to silence but the head of that group, who I believe is a member of his party, and a very distinguished lawyer, Gerry Hogan, has made it clear that it is an interim report and its conclusions are not definitive. Again, the Minister is rushing ahead even of his own colleagues. That is very worrying, particularly coming from a man who has a fine legal brain and is a senior politician.

I have many concerns that are shared by the ICCL. They are also shared by the Irish Human Rights Commission, chaired by a former leader of the Opposition in this House. In the background to this document, in rather coy terms, it expresses its concerns. It states, "The IHRC considers the limited time-frame within which the Criminal Justice Bill 2007 is being brought forward to be unfortunate". That is very diplomatic language but it is clear it is very dissatisfied. There is a certain ring to the word "unfortunate". It further states, "Desire to change the law should be balanced by the need to discuss, analyse and reflect on provisions which involve a significant restriction of long established rights". That is what we are doing — the right to silence. It also indicates that it is having great difficulty in responding, due to the shortage of time, and that the bail law in particular should be reviewed with considerable care.

The right to silence is one of the fundamental aspects of our law. The IHRC indicates that, under sections 26, 27 and 28 of the Bill, circumstances in which inferences may be drawn must clearly call for an explanation from the accused. Grehan said in his article that this is a fundamental safeguard but it should be strengthened in the Bill. The IHRC's belief and mine is that inferences should be drawn only where the accused failed to give an account or mention a fact which he or she could reasonably have been expected to mention in the circumstances at the time when he or she was being questioned.

It stresses a point made in the article I quoted from The Irish Times that although there is a parallel here with an English situation, and human rights have been eroded under Mr. Blair in Britain for some time, nevertheless, they at least provide for the availability of strong pre-trial legal advice which is not done here. The Human Rights Commission also believes that the presence of a legal adviser should be provided throughout the interrogation.

There is also the matter of the seven days' detention. In 1984, when a similar Bill was introduced extending the powers of detention to 12 hours there was practically a riot in both Houses. It is now proposed to be at seven days and this is apparently being meekly accepted. That is a very serious curtailment.

Let us remember that people are innocent until proven guilty. There should be a sliding scale in many of these areas of legislation. None of these draconian provisions should come into operation unless, for example, certain criteria are met, such as a previous conviction. However, this could all come into operation in respect of somebody who has simply been accused of a crime. Again, I point to the McBrearty case. This case and the Morris tribunal are our track record, yet these provisions will give evidential standing to the opinion of a senior police officer.

Tagging might have certain attractions, for example, in the case of a serious child molester. I understand that very well. However, it relates to people on bail who have not been convicted of anything. This is a group of people who are considered to be innocent until proven guilty. In this situation, it is appropriate that this should only come into operation if the person has already been convicted of a crime. The basic concern here is, or should be, people who have a record of committing crime while on bail.

I am not sure that tagging somebody electronically when he or she has never been convicted of a crime and is presumed innocent is constitutional. I am also unsure that it is in accordance with the provisions for the right to privacy and bodily integrity in the European Convention on Human Rights because a chip must be inserted. We should think about that. I wonder if anybody in this House has been thinking about it because things are very quiescent around here. This is somebody who is innocent and will have a quasi-surgical procedure performed upon him or her before he or she is convicted of anything. I wonder where we are going with all this.

I will return to the right to silence and examine what the Irish Human Rights Commission, IHRC, has to say about it. The commission makes it clear that the right to silence is one of the fundamental elements of our justice system. It states:

In 1935, Lord Slankey in the House of Lords described the presumption of innocence or the burden on the prosecution to prove the guilt of the accused as a golden thread that runs through the web of English criminal law (and thus the common law). The Irish courts have given them constitutional status by stating they are essential components of the right to a trial "in due course of law".