Ivana Bacik (Labour) | Oireachtas source

I welcome the Minister, Deputy Humphreys, to the House.

I am pleased to speak for the Labour Party on the annual renewal motions. Like other colleagues, I have spoken for a number of years now on these motions as they come before us. I also have a particular interest in this, having practised for several years in the Special Criminal Court in different trials as a defence practitioner.While I am not opposing the renewal, I am, and have been, very critical of various aspects of the framework of the offences against the State legislation and these motions. I have always made the case for strong and rigorous Oireachtas scrutiny of these renewal motions. I welcome the expert review chaired by Mr. Justice Michael Peart and I am glad to hear the Minister confirm that the interim report is due shortly and that by next year we are likely to have the benefit of the full report of the expert group. That will be very important, particularly as the last such comprehensive review, chaired by Mr. Justice Hederman, was published in 2002. The Commission on the Future of Policing in Ireland was very strong in recommending that a similar comprehensive review was urgently needed. That is why we have the current review, which is very useful.

It will also be of great value to the ongoing review that since the 2002 review there have been a number of scholarly books published and a great deal more academic research carried out on the practice of the Special Criminal Court and the operation of the Offences against the State Acts. There have been books by Ms Alice Harrison, Mr. Fergal Davis and most recently a book edited by Mr. Mark Coen of University College Dublin, UCD, The Offences Against the State Act 1939 at 80: A Model Counter-Terrorism Act? Without going on too much about it, I have a chapter in that book. There is a number of different chapters and the book offers a series of different critical perspectives on the legislation, which I hope will be of use to the review.

I also remind colleagues that, last year, we debated the renewal motions in an extraordinary context, just four hours away from the deadline at which the sunset clauses would have lapsed. That was due to the long drawn out Government formation negotiations and the context in which a number of sitting Senators had taken an action in the High Court over the constitutional status of the Seanad. On this occasion, we have more time to consider the motions and we are doing so in a somewhat less urgent setting in that the sunset clauses are not due to lapse until 29 June. However, last year's context shows some of the difficulties with this framework, that it was so close to a deadline for expiry within which we were having the debate.

The expert review and we, as legislators, must take notice in a more measured and considered way of a number of crucial issues with the renewal motions. First, as others have said, we must be mindful that the offences against the State legislation has now become so entrenched in our criminal justice system that it has assumed a type of de factopermanency. We have to be careful that we do not become so used to this that we become, as Ms Justice Iseult O'Malley has said, over habituated to the abnormal. We must remember that the framework encroaches on fundamental due process rights, notably the right to trial by jury, and that it has been condemned nationally and internationally by human rights and civil liberties bodies over many years for its encroachment on these due process rights. Ms Justice O'Malley pointed out that the risk of becoming over habituated to the abnormal is best countered by constant insistence on constitutional due process. As legislators, we must remind ourselves of the need to have constant insistence on due process. Indeed, the courts have ruled in a range of cases on aspects of the provisions in the legislation and have brought that constitutional scrutiny to bear.

When we are scrutinising the annual renewal motions under both the 1998 and 2009 Acts, there are two particular areas we must examine. First, we must look at patterns of usage and non-usage of separate distinct provisions, as outlined in the reports with which we are provided. In previous years I have made the point that there are some sections, for example, in the 1998 Act, that never seem to be used. This year, sections 3, 4, 6 and 17 have not been used in the last 12 months. As regards sections 6 and 17, I have noted a long pattern of non-usage. Where we see such patterns we have to ask, and the review will be asking, whether those provisions should simply be repealed if they are not used. I believe all will agree with that. Similarly, if there is a consistent pattern of usage and if provisions have clearly become an important part of the package of measures available to the Garda, what is the purpose of the sunset clauses if we are simply almost routinely renewing them because we see they are being used routinely? These are questions that must be answered, and I hope the review will take them very seriously.

My final point refers to an amendment that the Labour Party tabled in the Dáil in 2019 dealing with a real concern we have about these renewal motions. In each year we are asked, in accordance with Article 38.3.1° of the Constitution, to make a determination as to the inadequacy of the ordinary jury courts to try certain offences in accordance with law. This standard, we argue, therefore requires that we would have evidence before us that the ordinary courts are not appropriate or not adequate to try certain offences. Our concern is that we have never had sufficient evidence to make this determination in a sufficiently rigorous fashion. I contrast the lack of information before us with the information supplied to legislators when we are making considerations under the financial emergency measures in the public interest, FEMPI, legislation. We are being asked to exercise a determination in what might be considered an evidential void.

We are not being given sufficient information to determine, for example, whether there are intermediate measures to protect jurors where there is an issue with intimidation of juries and where that is the basis on which the Government says ordinary courts are inadequate. Are there intermediate measures, such as screening, anonymising or locating the jury in a different place? Such evidence would be very valuable to legislators when we come to make these determinations annually because, as we must remind ourselves, we are making determinations that effectively interfere with one of the most basic rights we all have as citizens when we come before the courts, which is the right to be judged in open court by a jury of our peers. This is a crucial consideration for the expert review group, and it is something we must always be mindful of as legislators when we bring our parliamentary scrutiny to bear on these motions. I ask the Minister to convey those considerations and concerns to the expert group.