Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 7:

In page 21, line 7, to delete “shall” where it firstly occurs and substitute “may”.

These sections of the Bill are a matter of serious concern. I am surprised they have not got more attention. We are usually very careful of anything potentially seen as interfering with the separation of powers and the due course of our courts.

Amendment Nos. 7 and 8 relate to section 18. That section basically says a decision of the High Court would be final and "no appeal shall lie from the decision of the High Court to the Court of Appeal". We are effectively removing access to the Court of Appeal for cases here and it is a serious thing to be doing. Part of my instinct is to oppose the section, as I would with anything that seems to curtail the normal course of justice and proper judicial process. How we engage on this affects what we do on Report Stage. In these amendments I have given some benefit of the doubt and assumed there is a strong rationale for why we are removing access to the Court of Appeal. Even if there is such a rationale, it is important there be a very careful balance.

Amendments Nos. 7 and 8 are very modest. The stronger thing to do, which I reserve the right to do on Report Stage, is to seek the removal of that section from the Bill and thus the removal of that limit. In amendment No. 7, I have simply proposed that it "may" be final, rather than simply saying here is an absolute blunt measure that does not have regard to the specificities of any individual case but says it "shall" be final. Section 18 provides that "leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that [such] an appeal should be made to the Court of Appeal". Amendment No. 9 removes that curtailment around the point of law of exceptional public importance so leave shall be granted where it is desirable in the public interest. It should be sufficient for the High Court to certify and allow a Court of Appeal hearing in a situation where the former certifies it is desirable in the public interest that an appeal should be made to the latter. Putting in the additional requirement of a point of law of exceptional public importance means we are going to have inequality of treatment under the law. For example, three persons, or three separate parties, may be affected by a decision made at the High Court that is against the public interest and potentially against their specific rights. If one of them gets to take a case to the Court of Appeal because there is a point of law of exceptional public importance, we are saying the others will not meet that standard because somebody has already used that point of law, even though the same point of law may be relevant for different cases. A public interest requirement that simply says where it is, on balance, in the public interest that a case should go to the Court of Appeal should be sufficient. To put a bar on that meaning a case needs to be not only justified but interesting in order to get access to the Court of Appeal is an extra standard that is not necessarily appropriate in this situation. That is amendment No. 9.

No. 7 simply provides that it "may" be final. For example, it could be part of the decision-making of the High Court that it may be final but it gives some scope. It would also be more in tune with the fact there is a caveat given later.

All these amendments are my effort to nuance this overall decision to limit access to the Court of Appeal, which I am keen to hear justified properly. The Bill says a person should not be able to go the Court of Appeal except where there is a point of exceptional public importance and he or she has certified the public interest needs him or her to take that appeal. With amendment No. 8 I am saying the restriction on the ability to go to the Court of Appeal should only apply "in cases where the High Court certifies that such an appeal would constitute a risk to national security or public safety". Those are the standards used elsewhere in the legislation, save, I note, places where "national security or public order" are used. "National security" is an appropriately high bar but "public order" is pretty wide. We will come to that phrasing in other parts of the Bill. I have suggested "risk to national security or public safety" as reason enough to not have a case aired further in the Court of Appeal but the burden should be on that, rather than there being an assumption a person will not have access to the normal course of justice. I am concerned by this. I have not seen very much of this sort of direct legislative interference in the course of justice.

Amendment Nos. 46 to 48, inclusive, are duplicates of amendments of Nos. 7 to 9, inclusive, in that they make the same modifications with respect to the automatic denial of a right of appeal where it secondly occurs in the Bill. This time those amendments seek to make those modifications to section 31 which relates to the automatic denial of rights of appeal in relation to the high-risk - or "relevant", as it is now described - vendor measures in section 28.Under the measures in the Bill, vendors identified as high risk or relevant could prohibit the use or installation of components by a vendor identified as high risk. These amendments are trying to shift the burden of proof. We have to clear on what the basis would be. If there is a time-bound concern in regard to these matters - and there may be a time-bound urgency too - it is possible for the legislation to provide that the decision of the High Court might stand, pending a decision by the Court of Appeal. That approach could be taken if the concern is about timing. In the context of closing the door on access to the Court of Appeal, if we start to do that, where will it lead?