Tuesday, 6 April 2004
Maritime Security Bill 2004: Committee Stage.
I move amendment No. 1:
In page 4, subsection (1), lines 1 to 3, to delete paragraphs (a) and (b).
I welcome the Minister of State to the House and look forward to the debate on this Bill.
While the convention does not apply to war ships or navy ships, there is nothing stopping us from going further than what is contained in the directive. We have done so in recent times in a number of other European directives. It is often appropriate that we use our initiative and inform our legislative assembly of our intentions. There are times when one can make an argument to the contrary. There is nothing to stop us going further than the convention in terms of our legislation. It does not make sense to state that terrorists who seize civilian ships should be punished while those who, for military or other purposes, seize other ships will not be punished. I look forward to the Minister of State's reply on this amendment.
I am unable to accept the amendment as it is contrary to the specific terms of Article 2 of the 1988 convention, which is designed to protect commercial shipping against terrorism. Article 2 of that convention specifically provides that it does not apply to a war ship or a ship owned or operated by a state when being used as a naval auxiliary or for customs or police purposes or a ship which has been withdrawn from navigation or laid up.
Moreover, Article 2.2 makes it clear that the convention does not affect the immunities of Government ships operated for non-commercial purposes.
While I appreciate the Minister of State's reply, it is important to stress that there are occasions when we should not rely solely on conventions, directives and so on. This is one such occasion. While I accept the Minister's response it is important to stress that at times we can go further than what is expected of us.
I move amendment No. 2:
In page 4, subsection (1), line 5, before "and" to insert "and, in relation to an Irish ship, means such a ship wherever situate,".
The Bill does not state that this provision will apply to Irish ships wherever situated and, although I am aware, that is the intent of the provision, there is no expressed reference in that regard. I have tabled this amendment in the interests of clarity and hope the Minister of State will respond positively to it.
The problem arises more acutely in terms of the following amendment.
I accept the Minister of State's response and will withdraw the amendment on that basis. However, this is the second such occasion in recent weeks in this House that this has happened. This scenario also arose during the Committee Stage debate on the Bord Bia Bill when the Minister for Agriculture and Food, Deputy Walsh, accepted the principle and ethos of a particular amendment but did not accept it in this House and signalled his intention to table an amendment in that regard in the Dáil.
If there is a serious will on the part of Ministers to accept the principle or ethos of amendments, they should do so on Committee Stage in this House. I am aware they are in a position to remedy matters at a later stage. As regards the operation of this House and taking into account Standing Orders, it is important Ministers acknowledge the contribution of Members of this House and that this type of situation be prevented from recurring.
I move amendment No. 3:
In page 5, between lines 10 and 11 to insert the following subsection:
"(2) Notwithstanding section 1, but subject to section 3, for the purposes of this section, a ship or fixed platform shall mean a ship or fixed platform wherever situate, and paragraphs (a) and (b) of the exceptions to the definition of 'ship' shall not apply,".
There is contradiction between sections 1 and 3 in terms of the basic matter of jurisdiction. Section 1 states that a fixed platform, for example, oil rigs and so on, means a platform in the State's Continental Shelf and by definition does not include a fixed platform outside the State. The section also states that "ship" in respect of a non-Irish ship means a ship in the State. It says nothing about what is meant by an "Irish ship". The inference is that in this Bill "ship" and "platform" mean such things in the State with the possible exception of Irish ships abroad although the Bill does not state this.
Sections 3 and 7, in terms of offences involving acts outside the State, make it clear that it is intended that the Bill will apply to acts outside the State subject to the requirement that the consent of the Director of Public Prosecutions is necessary and can only be given if extradition is refused under section 7(4).
The purpose of this amendment is unclear. The Bill has been carefully examined by the Parliamentary Counsel and it is considered that it meets the requirements of the convention and protocols. While section 2(1) relates to the ordinary jurisdiction of the State, that is, within the 12 nautical miles limit of the territorial seas, section 3 clearly confers extra-territorial jurisdiction on the State as regards unlawful acts outside the State which are also targeted by the convention and protocols. What the Senator is seeking is already adequately provided for in the Bill.
There is a manifest contradiction between the definition in section 1 and the trial provisions in sections 3 and 7. The amendment seeks to resolve the contradiction by stating that the offence provisions in section 2 will apply to ships or platforms wherever located. The provisions relating to powers of arrest or search as contained in sections 4 and 6 will only apply to Irish ships or ships in Ireland. It seems appropriate, in terms of the offence provisions, that war ships be included.
I move amendment No. 4:
In page 5, subsection (2), line 12, after "life" to insert ", pursuant to which, that person shall serve a period of not less than 15 years".
In moving this amendment I am conscious the Minister of State mentioned an indictment of imprisonment for life for very serious offences.
Nowadays, the criminal justice system, in terms of life imprisonment, has lost its definition. I am seeking that people be locked away for life but if this provision is to have any teeth, it is important to underpin it with a timeframe. The timeframe mentioned in the amendment is 15 years. The legislation would be strengthened if we underpinned that timeframe. Currently, what is considered a life sentence is discretionary. Anyone who analyses our current criminal justice system will discover that a life sentence is a misnomer in many cases in terms of the time subsequently served for an offence. It is for that reason I am seeking to include " , pursuant to which, that person shall serve a period of not less than 15 years".
I support Senator Finance's amendment which ties in with previous calls in this House for a debate on sentencing policy. There is a lack of confidence in the criminal justice system in terms of the sentences being handed down and time served in that regard.
The Minister of State may correct me if I am wrong, but the idea behind sentencing a person to prison is to ensure a person is detained for a certain number of years thereby preventing him or her breaking the law and committing the same crime again. I am aware of the early release system and the conditions built into it. Generally speaking, the principle of this amendment is to ensure that when a person is sent to prison for life, he or she must serve a specified number of years of that sentence. This would make clear to all that the law is rigid and must be obeyed and that those who violate it will serve an expressed number of years in prison.
It has not been the practice in Irish law to qualify life imprisonment so as to specify a minimum term of imprisonment for serious offences. Accordingly, it is a matter for the courts in the light of the particular circumstances of each case and the gravity of the offence or offences to determine what is the appropriate term of imprisonment. Irish courts have, in the past, imposed life imprisonment on serious offenders considered to be a danger to the public.
I move amendment No. 5:
In page 7, subsection (2), line 17, to delete "€1,500" and substitute "€3,000".
In moving this amendment, I recognise that the offences are serious. Under recent legislation the minimum penalty is €3,000. The figure, therefore, has been raised from €1,500 to €3,000 and the sentence from six to 12 months. That is the spirit of those two amendments.
I move amendment No. 6:
In page 8, between lines 16 and 17, to insert the following subsection:
"(4) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, proceedings for an offence under this Act may be instituted within 12 months from the date on which the offence was committed.".
The investigation of offences under this legislation could well be lengthy and, therefore, often involve international borders. The timeframe mentioned is six months. However, we could at least raise that to a year, since if one has a timeframe of a year for such investigations, there is pressure to complete the investigation within it. As we know, at present, if someone has to move within our criminal legislation, it lapses within six months. Specifying the period as 12 months would strengthen the legislation on the basis of the international dimension.
This amendment is not accepted. The 1851 Act applies only to summary offences, of which there are only two being created in the Bill, in sections 5(5) and 6(2). The 1851 Act already allows a period of up to six months after commission for summary offences to be prosecuted in court. If an offence under section 5(5) was of sufficient gravity, indictment proceedings would be taken. Such proceedings should not be required to be taken within six months of the offence being committed. On the other hand, section 6(2) offences involving obstructions of searches would be readily amenable to prompt prosecution and prosecution should not, therefore, be delayed beyond the six months allowed for in the 1851 Act.
Although I have some sympathy with the amendment, I must agree with the Minister. We should take any action we can to speed up cases. It is happening too often not only in this area, but the normal judicial system. We are constantly hearing complaints about cases taking far too long to come to court. Perhaps we might all be better served by much of the other legislation on our Statute Book if there were some sort of time limit. For that reason, the tighter we can keep this, the better. That is why I fully support the Bill as it stands.
Apart from the prosecution of offenders, the issue was raised of the claiming of compensation where serious offences were committed. Very extensive expenses can arise in remedying the damage done by breaches of such conventions. As I mentioned previously, there is a grave doubt in my mind as to the efficiency and effectiveness of the convention, especially in cases where the State is left to pick up the cost involved in the contamination and cleaning up some of the side effects of the breaches and offences being created, especially by ships from outside the jurisdiction.
I raised the question of the clean-up of damage done by the Kowloon Bridge and the costs that the State incurred at the time in the removal of oil and securing of the wreck. That involved the State in enormous expense to be refunded under these conventions. As far as I know, the final payments to the State have not yet been made. That undermines the whole purpose of such legislation. There is an international convention under which people can claim damages, but those claims are left unattended for a long period. The last time we had similar legislation before us, I raised the question of the Kowloon Bridge compensation. The State still has not been refunded the expense that it incurred through that incident.
The second point, which was raised by several Senators last time, concerns nuclear vessels travelling close to the coastline, the risk of pollution involved, the difficulty and expense of controlling something of that sort if an accident took place and how that might be covered. Under this legislation, if one of those vessels got into difficulty close to a state constituting another jurisdiction, it would be very difficult to prosecute. I am not satisfied that the legislation is effective or efficient in dealing with those two matters: the prosecution of offences and the claiming back of compensation for damage done.
Regarding Senator Daly's concerns about the convention, it is currently being reviewed by the International Maritime Organisation in London. We will be putting forward some of the concerns raised here by Senators, including those of Senator Daly. The Sea Pollution (Miscellaneous Provisions) Bill 2003 will deal with some of Senator Daly's concerns regarding oil pollution, for example. On the nuclear issue, some of it is our responsibility. Although I do not wish to pass the buck, most of it is the responsibility of the Minister for the Environment, Heritage and Local Government, Deputy Cullen. We will pass on Senator Daly's concerns regarding the movements of the nuclear industry through our waters.
I do not want to labour the issue, but if one of those nuclear ships coming from the United States to the UK got into difficulties off the south west coast of Ireland, it would have to be dealt with in a very specialised, professional manner. First, do we have the capability to do it? Second, the costs for the State will be enormous. If the convention is to be effective, we must be able to claim back from it fairly quickly. I presume that we would have to do whatever was needed to protect ourselves here and then the coastline and the environment. We would then have to claim it back through the convention. It is such an obscure and complicated mechanism that it would not happen for ten or 20 years. I am not sure when the Kowloon Bridge caused difficulties, but I believe it was in 1987. Now, almost 20 years later, the bill for that has yet to be finally settled. I do not want to get too involved in this, but it is important, especially in view of the negotiations that the Minister mentioned, that we highlight these issues when the convention comes to be examined. That will have to done very speedily given the terrorist attacks, which were not really an issue when this was debated 20 years ago.
I move amendment No. 7:
In page 8, lines 46 to 48, to delete all words, from and including "shall" in line 46 down to and including "convicted" in line 48 and substitute the following:
"which corresponds to an offence under section 2 shall not be the subject of a prosecution in the State under section 2 for that same act".
My intention was to draft something much simpler which would achieve the same objective as the Minister's provision. I do not know whether he accepts it as stating exactly the same thing, in the same spirit, but in simpler English. I am trying to break down the legalese into a simple statement; the same effect will be achieved by putting matters simply.
On Senator Finucane's point, during recent debates in this House proposals have been put forward on the breaking down of jargon. Some legislative mumbo-jumbo, as it may be perceived, can be quite complex and confusing. I know the Minister for Social and Family Affairs, Deputy Coughlan, is initiating plans for a more user-friendly and reader-friendly scheme as regards services offered by her Department. The Minister of State could take a lead from Senator Finucane's amendment. Both proposals achieve the same effect, but the amendment is clearer on definition and content.
The Parliamentary Counsel has strongly advised that the terminology in section 9 of the Bill, referring to the act which constitutes the offence in question, is correct. Moreover, it avoids argument as to what the term "corresponding" may mean when one compares offences under the laws of different states. Thus, in line with the 1998 convention and the protocol in section 2(1), certain acts are specified which, if committed unlawfully and intentionally, are criminalised and are to be punished by severe penalties.