Michael McDowell (Independent) | Oireachtas source

I support the motion. I have some sympathy with the Sinn Féin amendment but I think it will take longer than 12 months to get all the ducks in a row to do what is necessary. On the question as to whether further or different legislation is necessary, I want to say that the whole concept of scheduled offences is, and always has been, a slightly dubious one. The relevant provision of the Constitution reads, "Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order." It always seemed to me that on a close reading of that particular article, it is wrong to say that offences per se go to the Special Criminal Court. What the Constitution actually requires is that it must be decided on a case-by-case basis and it must be determined in respect of the case and not the offence that the ordinary courts are inadequate. For that reason, I have always taken the view that in respect of scheduled offences under the Offences against the State Act, the presumption that you go to the Special Criminal Court in particular cases is a very dubious one constitutionally. I have held various offices, which I will not go over, since I formed this opinion and nobody has ever made this point significantly, but I believe the recommendation in the report that offences should not be scheduled per se but that the process whereby they are determined to go to the Special Criminal Court should be case by case and not category by category. That is my strong view.

I am an absolutely passionate believer in jury trial and, therefore, believe that whatever system is put in place, whether Special Criminal Court or other non-jury courts, must be, under the article, the absolute exception and used to the minimum degree necessary to secure the effective administration of justice. Where does that leave me?The law dates from 1939 and 1940 and later. These laws do need revision. The Government has to face up to this issue. Warrants under the Offences Against the State Act were already the subject of legislative change and we are going to have to address this issue very seriously in the next 12 months. Can it be done in 12 months? I think it will be tight, but I do believe the Minister should come into this House and explain her thinking about the report. We should have a debate on the report because it is a substantial piece of work. My secretarial assistant, Samantha Long, has just printed it out for me, and when I saw the size of it I said this does deserve to be discussed in detail. As for today, while I have sympathy for the Sinn Féin amendment, I support the Government because I think we do need another 12 months to get it right. There is no point in making a mess of this vital piece of legislation or rushing at it in a way that will leaves loopholes, which will affect the security of the State.

My last point is on the question of the security of the State. The security of the State is not to be taken for granted. We are vulnerable. Our Defence Forces are at a minimum. We got rid of the FCA. How many people who are not in criminal gangs can even fire a rifle now and come to the Government's aid? We have stripped everything back down. The numbers in the Defence Forces are down, the numbers in the Garda Reserve are down and the numbers in the Civil Defence are down. It is about time we as a society took security seriously. I am not getting into NATO or any of those issues, but I am saying that successive Governments have run down the Department of Defence and the security of the Irish State is not to be taken for granted.