Eugene Regan (Fine Gael)

The Minister has his mind made up on this matter and perhaps it was made up before the debate on the Bill commenced today. The Minister is making the wrong policy choice. I have attempted not to be political about this issue. Following on from the Committee Stage debate, I returned to the authorities on this issue. The Minister is wrong to attempt to adjudicate on these constitutional issues. It is for the court to decide. The amendment proposed is designed to enable the courts to adjudicate on these issues. It is for the court to administer justice and to take a decision on the balancing of constitutional rights.

The case law on the separation of powers to which the Minister refers is not pertinent. There is no suggestion in the amendment on the double jeopardy principle that any specific cases are being interfered with by the Oireachtas, which was the case in both the Buckley and Howard cases, on which the Minister relies.

The Minister's position defies logic. The change is procedural, just like the change in the majority required of juries in indictable offences. No one accused or acquitted of a crime could rely on the law subsisting at the time of the crime to determine he or she would not be tried based on a jury majority. The Minister is misreading the law and is presuming to adjudicate on these constitutional principles rather than doing what he proposed we all do in respect of the Bill I proposed on the exclusionary rule, that is, leave it to the court to decide these matters in a suitable case which could be identified by the DPP. The Minister has chosen to do the very opposite in this case. It is this inconsistency that I find difficult to comprehend.

The Minister suggests it is not a procedural change and that is just the British excuse. He refers to the fact that our law is distinct from that of the United Kingdom in that we have a written constitution and he implies that, in some way the UK criminal legal system is inferior and, therefore, cannot be relied on to provide a guide to legislation here. However, the Law Commission in the United Kingdom identified the changes being made to the double jeopardy principle and tested them against the European Convention on Human Rights and the protocol attaching thereto and found that the amendment in UK law in 2003 was compatible with human rights principles. Therefore, the Minister's view that what I propose would conflict with such principles is simply unfounded.

The Minister refers to legal advice. We are not privy to it and can only argue the case on its merits. The Minister referred to the possibility of a reference to Article 26. What would be wrong with it in respect of such an important issue? It is a question of the sound administration of justice and bringing people to justice in exceptional circumstances where there is a facility for the courts to revisit cases where there have effectively been miscarriages of justice. The Minister, in this Bill, is blocking such a possibility. He is loading his arguments in many instances, particularly by suggesting any reference would mean the whole Bill could be struck down. The issue is that of retrospection and that is what may be tested. There is no interference by the Oireachtas in specific former cases where there were acquittals. It is a facility and an enabling provision for the court to decide on these matters.

It is a policy choice and the Minister has got it wrong. It is for the courts to balance conflicting rights. The message the Minister is sending out is that, in the case of an individual who has been accused or committed, notwithstanding the fact that the judgment in favour of an acquittal might have been obtained on the basis of fraud, perjury or intimidation, no court can revisit his acquittal. The message from the Minister to somebody acquitted, notwithstanding compelling evidence that would suggest a retrial is warranted and that the acquitted may be guilty, is: "If you can get away with it, good for you."