Brendan Ryan (Labour)

I never thought in my political career that I would have to stand up and defend the Judiciary. My political view of the world has been about trying to look from the position of the underdog at their noble lords. They are not quite noble lords but sometimes they act like they were. However, our judges have done wonderful things over the years. One of them has been a vigorous defence of the rights of the individual. They have done this in the teeth of different Governments that have attempted to chip away at those rights.

Two things trouble me about this Bill. The first is its contents and the second is the certainty that most of it will make very little difference. We have been through this before. Anybody who has been a Member of the Oireachtas for some years has encountered a succession of such minor chippings away at issues, each of which, we are told, will deal with the problem at hand. All that happens, however, is that the problem redefines itself and we must confront it once again.

For example, I have been hearing about the problem of offences committed on bail since I entered this House 25 years ago. A succession of attempts has been made to deal with the issue. The fundamental problem, however, is that a person released on bail has not been convicted of the offence with which he or she is charged. I am confident that if a situation is created where a significant proportion of persons who would formerly have been released on bail are instead to be locked up, our courts will find there is a breach of their constitutional rights.

The reality is that persons released on bail have perhaps committed no offence. Even if they have committed offences previously, they have already been punished for those crimes. The idea that there should be restrictions on the movement of accused persons via electronic tagging because of crimes they committed previously will ultimately come under scrutiny by the courts. The Government cannot be certain of the outcome of that scrutiny. I accept that the Attorney General has advised that this measure is within the terms of the Constitution. However, Attorneys General have in the past been wrong as often as right in respect of controversial constitutional questions. I sometimes regret the decisions of the court, although I am sure they are magnificently, gloriously and sometimes even eccentrically independent.

I wonder what the Supreme Court will make of some of the provisions in this Bill, particularly that relating to seven-day detentions. The Supreme Court has laid down many tests in respect of lawful and unlawful detention and it has, for instance, deliberately inserted into the procedure for the detention of individuals provisions that are not available in the United Kingdom. People who are detained for questioning in that jurisdiction do not have the right to access a solicitor, make a telephone call or let their family know where they are. Accused persons in that country can be incommunicado for seven days. That cannot happen here, not because of legislative provisions but because the Supreme Court ruled that detention is not lawful where those types of basic rights are not upheld.

As Senator Tuffy said, if we are to detain people for seven days, we will run into all types of complications. I am convinced this issue will surface in the courts because there is an unfortunate tendency for emergency legislation designed to deal with specific cases to become the general rule for the way gardaí operate. I have seen the Offences against the State Act used against picketers who caused some disturbance outside a Fine Gael Ard-Fheis. The individual arrested under that legislation in this case was eventually paid damages by the Garda Síochána because there was not a scrap of evidence that she was a member of an illegal organisation.

The more powers that are provided, the greater the temptation to misuse those powers. Notwithstanding what the Minister of State, Deputy Parlon, said earlier, I am uneasy about the way in which retained electronic communications data are being accessed. I listened carefully to what the Data Commissioner had to say on this issue. It is the Government's obligation to respond to what he said rather than hiding behind the terms of reference of the judge who monitors all of this and who is not allowed to proceed as required. I have similar concerns in regard to Army intelligence, as I said before.

It is extraordinary that the records, which include fingerprints, of people against whom no charges are made will be retained. In such cases, the procedure will be that the Data Commissioner will have to be petitioned and he or she will decide whether the records should be released, after which the matter may be taken to the courts. Why, in a civilised society, should there be retention of the record of somebody who is arrested on suspicion but is not subsequently charged?

We are moving into a vague area in which people can be deemed to be half guilty or half convicted. It may suit propagandists of a silly type of law and order agenda to argue for such a system. A favourite argument of such proponents is that everybody is too much concerned about the accused and not sufficiently concerned about the victim. Such language effectively makes the judgment that the accused is convicted. The reality, however, is that an accused person is innocent. There are only two categories — innocent or guilty. Our law does not accommodate a halfway house between innocence and guilt.

That is why there is so much concern for the accused. I have been involved in the campaign for victims' rights for 20 years. There is an extraordinary hypocrisy on the part of State agencies and Governments of various hues which forever talk about the rights of victims provided it does not cost any money and which deliberately and consistently underfund voluntary organisations that try to help victims. It is just as well that the Criminal Injuries Compensation Tribunal was abolished. This peculiar State agency, the purpose of which was to compensate the victims of crime, hid behind a doorway, only allowing people to communicate with it through an intercom device at the door. Moreover, it would not allow forms explaining how claims could be made to be distributed in Garda stations, post offices and so on.

Nobody seems willing to address the issues that most concern victims of crime. Interest is aroused from time to time when the tabloids call for actions that are only a step away from vengeance. We must be careful as a society that vengeance, or any form of retribution, does not become part of our criminal justice code. We must learn the way of looking at issues that was epitomised by a late and great Member of this House, Gordon Wilson. This is the capacity to realise that the only way one can move on from horrific crime is by moving on from seeking eternal retribution. We must be careful not to become involved in a rhetoric of vengeance.

I am extremely uneasy about the lack of debate on the profound change proposed in this Bill, which is to allow accused persons to be detained for seven days. I reiterate my view that we will have to rely on the courts to adjudicate on this and other provisions, such as that which attempts to force judges to impose sentences they believe are wrong, and that they will probably find against them. There is judicial freedom to make decisions in these areas, either by making interpretations of the Constitution or by asserting the absolute right of the Judiciary to be independent of the Oireachtas.