Alice-Mary Higgins (Independent) | Oireachtas source

I had intended to propose an amendment to this motion to require a review of the Offences against the State (Amendment) Act and the Criminal Justice (Amendment) Act. However, given the statements made by the outgoing Minister, Deputy Flanagan - and I acknowledge him as somebody who came very regularly to this House and engaged very respectfully and actively with it - on the intention to have a review over the course of the year, I have not tabled that amendment.

I do, however, wish to comment a little on the nature of the review and what might need to be discussed within it. First is the question of who might properly conduct the review - the Law Reform Commission or the Commission on the Future of Policing in Ireland.I congratulate the Minister on her appointment. Those are issues she may wish to give due consideration to. I have huge respect for both of those bodies, which make immense contributions to the State. A review could not, and should not, be confined to the consideration of a single examiner, but must have regard to the full landscape of the law, including individual rights and due process, and should consult relevant civil society and human rights groups. That would be important for the success and credibility of the review.

I wish to highlight four issues that will be important. The first relates to the definition of "terrorist activity", which the Irish Human Rights and Equality Commission has described as so impermissibly wide that it risks describing groups opposing dictatorial or oppressive regimes, anti-globalisation groups, anti-war or environmental protestors or even militant trade unionists as terrorists. That definition needs to be functional and it needs to be examined carefully so that we do not in any way stifle civil society activity, which is something Ireland has always seemed to support.

The second issue relates to specific analysis of the ordinary courts in the administration of justice in Ireland and their potential to effectively act in relation to offences listed in the Acts. The operation of the Special Criminal Court should only be allowed where our ordinary courts are shown to be unable to adequately administer justice. The Minister mentioned "appropriate" and "proportionate". The real test is "necessary" and "proportionate". As Senator Bacik rightly highlighted when she spoke on similar motions last year, the burden of proof is on the Government to actively demonstrate that there are no effective alternatives to non-jury trials. Are there, for example, other measures that might be taken to protect juries in sensitive cases? Moreover, it is important to note that many important criminal prosecutions relating to organised crime in this State have taken place in the ordinary courts.

The third issue relates to compliance with UN law and recommendations, particularly in the context of Ireland taking a seat at the UN Security Council. The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has specifically criticised Ireland's Special Criminal Court, noting the seepage of the exceptional into the ordinary in ways that have not served the rule of law nor the protection of human rights well. At a time when we see a worrying new wave of authoritarianism across the globe, along with attempts to undermine and attack rule of law, we need to think very seriously about what message we are sending and what tacit signal we might send through our own policies and practices.

I thank Senator Ward for raising the issue of evidence, because that is an important example in that regard. It is concerning that during the operation of these Acts there have been attempts, thankfully unsuccessful, to seek prosecutions based on belief evidence without disclosure of underlying evidence. All of us can see and imagine what such practices could mean in a state that sought to quash opposition or oppress a minority. Faith in the rule of law and the fair operation of the law is one of our greatest defences against radicalisation and in the underpinning of democracy. Any erosion of due process carries risk.

In that context, I wish to briefly remark on a related issue and I hope that the incoming Government will not seek to undermine the rights of the public or organisations in relation to planning and development. It is vital that individuals and organisations will retain the right and opportunity to challenge and seek clarity on decisions made by Government or public authority where those decisions may be in breach of national or international law, including, for example, the EU birds and habitats directives. Moreover, financial obstacle or threat should never be deployed to make challenge solely a privilege of the wealthy.

Finally, I would like to give clear notice of 12 months that the renewal of this Act in June 2021 should not be assumed. I believe it would be irresponsible to have cases under way that might be vulnerable to the withdrawal of approval at that time. The separation of powers was referenced, which I also take seriously. As a Senator and a legislator, I will base my scrutiny and decisions at that time on the outcomes of the review on human rights law and on legislative rather than operational consideration. I want to make that clear.

I again warmly congratulate the Minister on her excellent performance in her previous role and on her new role. I look forward to engaging further with her on these issues.