David Cullinane (Sinn Fein)

I welcome the Minister back to the House. We will spend the greater part of this week and perhaps next week in the Seanad debating what I would see as one of the most draconian pieces of legislation on the Statute Book, namely, the Offences against the State Act. It is an embarrassment to any state which claims to be a modern progressive democracy and republic that we would have such a piece of legislation on our Statute Book.

The Act provides for remarkable powers which are intrusive, excessive and disproportionate. As the Minister knows, there have been many calls for the Offences against the State Act to be done away with. The powers and provisions that exist on the criminal law books are more than sufficient, in our view. The Offences against the State Act 1939 has a highly corrosive effect on human rights, democratic life and the safety and well-being of citizens in this State. That is what we are being asked to vote on today.

If the Government really wanted to promote and protect the safety of the public, financially and practically the best way to do this would be to resource the Garda Síochána, the forensic laboratory, the Director of Public Prosecutions and the courts to ensure we can enforce ordinary criminal justice legislation. There will be an opportunity tomorrow to deal further with the difficulties in non-jury trials and the Special Criminal Court. However, I am of the view that the difficulties identified in the Damache and Cunningham cases, which found the old section 29 unconstitutional, flag up once more the need to do away with the Offences against the State Act. This is something many organisations, including my party and the Irish Council for Civil Liberties, and many individuals have called for.

Perhaps it is with the benefit of hindsight, but it is manifestly improper and unjust that the investigating senior officer would have it within his or her power to provide a warrant in a case for which they are responsible. The reality is that a judge cannot judge himself or herself, which we would all accept, so how can we assume a garda seeking a warrant for an investigation in which he or she is involved will do anything other than provide a warrant to that end. There must be independence and oversight as well as accountability and judicial scrutiny, which is vital to protect against arbitrary interference in the rights of the individual.

One merely has to consider the incidents at the centre of the Morris inquiry. In that case, Mr. Justice Morris expressed his concern at the case and the regularity with which gardaí obtained warrants under section 29. It was his view that the power to issue search warrants should be vested in judges and that modern communications technology could facilitate this process. The power to issue warrants under section 29 should generally be vested in the judges of the District Court or Circuit Court. This is in keeping with best modern practice as exemplified in judgments of the European Court of Human Rights and judicial trends in Canada and New Zealand. Exceptions to this should be limited and sparing. The European Court of Human Rights takes a strict approach to the issuing of search warrants without judicial supervision. There must be very strict limits on such powers. There should be clear reasons that such an interference is necessary before the infringement on privacy can be considered proportionate to the legitimate aim pursued.

We have, therefore, some difficulties with the Bill, as the Minister will appreciate. We are not minded to oppose the legislation on Second Stage and we will consider tabling amendments as we progress to Committee Stage. I understand my colleague, Deputy Jonathan O'Brien, will table a number of amendments in the Lower House to deal with some of our concerns. The Minister knows my own view and that of my party on the Offences against the State Act. For many years, we have consistently sought its abolition. We had that conversation recently concerning a Bill that was discussed a few weeks ago. The Minister will be aware of my party's position and we have given notice that we will be tabling a number of amendments to this Bill.