Thursday, 16 June 2005
Offences against the State (Amendment) Act 1998: Motion.
I am speaking on behalf of the Minister for Justice, Equality and Law Reform, Deputy Michael McDowell, who is attending a funeral following a family bereavement.
The resolution under consideration in the House seeks approval for the continuance in force of those sections of the Offences against the State (Amendment) Act 1998 which would otherwise cease to be in operation on 30 June. In commencing the debate on behalf of my colleague, the Minister for Justice, Equality and Law Reform, Senators will recall that the 1998 Act was enacted in the aftermath of the Omagh bomb of August 1998, which claimed the lives of 29 innocent people and injured more than 200 others. That appalling act of barbarism continues to reverberate through the years and I am pleased to note that charges have recently been brought against a person in Northern Ireland relating to these murders. The investigation into this atrocity continues on both sides of the Border and there continues to be excellent co-operation between the Garda authorities and the PSNI in this regard.
It will also be recalled that, in recognition of the exceptional circumstances surrounding the enactment of the 1998 Act, there was general agreement that the Act should be regularly revisited by the Oireachtas. The purpose of this recurring Oireachtas scrutiny is to ascertain if the circumstances prevailing in 1998 justify the continuance in force of its provisions. Accordingly, by virtue of resolutions passed by both Houses of the Oireachtas on 15-16 June 2004, sections 2 to 12, 14 and 17 of the 1998 Act will cease to operate on and from 30 June next. That is, of course, unless a further resolution is passed by each House authorising the sections to continue to operate for a period not exceeding 12 months.
In addition, there is a requirement in the 1998 Act to lay a report on the operation of the Act before each House of the Oireachtas prior to any consideration by the Houses of the renewal of the provisions. Such a report was laid before this House last Monday by the Minister for Justice, Equality and Law Reform. The conclusion of that report is that the relevant sections of the 1998 Act should remain in force for a further 12 months. In the first instance, this is the firm view of the Garda Síochána, which considers the Act to be vital legislation in the continuing fight against terrorism and which considers it to be of paramount importance that the relevant provisions remain in operation.
Second, the harsh reality is that, despite the democratically expressed wishes of the people North and South of the Border, those responsible for the Omagh bomb continue to pursue, plan and promote a campaign of violence. In this regard, it must be remembered that there have been a number of "near misses" involving the Real IRA and the Continuity IRA since Omagh and it is only through dint of excellent police work by the Garda and the PSNI that further tragedy on a massive scale has been averted.
The new and more sinister forms of international terrorism, particularly Islamist terrorism, have been brought home to Europe with the Madrid bombings of 11 March 2004, involving the murder of 200 innocent commuters. The Criminal Justice (Terrorist Offences) Act 2005 was enacted last March to deal with this international terrorist threat by enabling the application of the Offences against the State Acts against international terrorist groups and individuals. Chipping away at these Acts would be neither wise nor warranted.
I will now turn to the individual sections of the 1998 Act this House is being asked to continue in force for a further 12 months. First, dealing with those sections of the 1998 Act that were used since the end of the last reporting period, that is, from 1 June 2004 to 31 May 2005, the following is the case. Section 2 was used on 30 occasions. By way of explanation, section 2 provides that where, in any proceedings for membership of an unlawful organisation, the accused failed to answer or gave false or misleading answers to any question, the court may draw such inferences from that failure or from the furnishing of a false or misleading reply as appear proper. However, a person cannot be convicted of the offence solely on an inference drawn from such a failure.
Section 3 was used on one occasion. By way of explanation, section 3 provides that, in proceedings for membership of an unlawful organisation, the accused must give notification of an intention to call a person to give evidence on his or her behalf, unless the court permits otherwise.
Section 4 was also used on one occasion. This section amends section 3 of the Offences against the State Act 1972 in such a way as to expand the definition of "conduct" that can be considered as evidence of membership of an unlawful organisation. Specifically, "conduct" can now include matters such as "movements, actions, activities, or associations on the part of the accused". This change simply aligns the definition of "conduct" in the 1972 Act with the reference to movements, actions, activities or associations used in section 2 of the 1998 Act.
Section 5 was used on 20 occasions. This section provides for the drawing of adverse inferences in the prosecution of a person for any offence under the Offences against the State Acts, any offence scheduled under the Acts, and any offence arising out of the same set of facts as such an offence, provided the offence carries a penalty of five years' imprisonment or more. The effect of this section is to allow a court to draw inferences where the accused relies on a fact in his or her defence that he or she could reasonably have been expected to mention during questioning or on being charged but did not do so. As with section 2, however, a person cannot be convicted of the offence solely on an inference drawn from such a failure.
Section 7 was used on two occasions. This section makes it an offence to possess articles in circumstances giving rise to a reasonable suspicion that the article is in possession for a purpose connected with the commission, preparation or instigation of specified firearms or explosives offences.
Section 9 was used on 69 occasions. This section makes it an offence to withhold information which a person believes might be of material assistance in preventing the commission by another person of a serious offence or securing the apprehension, prosecution or conviction of another person for such an offence.
Section 10 was used on five occasions. This section extends the maximum period of detention permitted under section 30 of the Offences against the State Act from 48 hours to 72 hours, but only on the express authorisation of a judge of the District Court. In this regard, the judge must be satisfied, on the application of a Garda officer not below the rank of superintendent, that the further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously. The person being detained is entitled to be present in court during the application and to make, or to have made, submissions on his or her behalf.
In the reporting period in question, an extension was applied for in five cases, and all these applications were granted. Charges resulted in four of these cases, with the fifth resulting in a file being sent to the Director of Public Prosecutions.
Section 11 was used on two occasions. This section allows a judge of the District Court to permit the re-arrest and detention of a person in respect of an offence for which he or she was previously detained under section 30 of the Offences against the State Act but released without charge. This further period must not exceed 24 hours and can only be authorised in circumstances where the judge is satisfied, on information supplied on oath by a member of the Garda Síochána, that further information has come to the knowledge of the Garda Síochána about that person's suspected participation in the offence.
Section 14 was used on 99 occasions. The effect of this section is to make the new offences created under sections 6 to 9 and 12 of the 1998 Act scheduled offences for the purposes of Part V of the 1939 Act. This means that persons suspected of committing these offences are liable to arrest under section 30 of the 1939 Act.
I now turn to those sections of the 1998 Act that were not used in the period under report, namely, sections 6, 8, 12 and 17. Section 6 establishes the offence of directing, at any level of the organisation's structure, the activities of an organisation in respect of which a suppression order has been made under the Offences against the State Act 1939.
Section 8 makes it an offence to collect, record or possess information which is likely to be useful to members of an unlawful organisation in the commission of serious offences.
Section 12 makes it an offence for a person to instruct or train another person in the making or use of firearms or explosives or to receive such training without lawful authority or reasonable excuse.
Section 17 builds on the provision in the Criminal Justice Act 1994 providing for the forfeiture of property. Essentially, the 1994 provision empowers a court, in its discretion, whenever any person is convicted of an offence, to order the forfeiture of any property in the possession of that person which was used, or intended to be used, to facilitate the commission of the offence. The effect of section 17 is, in the case of a person convicted of specified offences relating to the possession of firearms or explosives, and where there is property liable to forfeiture under the 1994 Act, to require the court to order the forfeiture of such property unless it is satisfied there would be a serious risk of injustice if it made such an order.
The information on the use made of the provisions of the 1998 Act is based on data received from the Garda authorities and is contained in the report on the Act laid before this House.
At this point, I should mention the report of the Hederman committee, which was established to review the Offences against the State Acts 1939 to 1998. Of those sections of the 1998 Act on which specific recommendations were made, it should be noted that the Hederman committee unanimously recommended retention of sections 6, 7 and 12. Moreover, a majority recommended the retention of sections 2, 5 and 9, while the committee was evenly divided in its opinion as to whether section 10 should be retained. A majority recommended the repeal of section 8 of the 1998 Act. The committee unanimously recommended the repeal of section 3(1)(b)(ii) of the 1972 Act, as amended by section 4 of the 1998 Act, but the amendment in question was simply to the wording. The committee also made general recommendations relating to the scheduling of offences, which would have implications for section 14 of the 1998 Act.
Accordingly, of the 13 sections of the 1998 Act being considered for renewal by this House, the Hederman committee expressed a substantive opinion on eight of them. Of these eight, the committee recommended the retention of seven, either unanimously, by a majority or, in one case, on an even split. Accordingly, although a full consideration of the entire set of recommendations of the Hederman committee remains ongoing, it is clear that little or no change to the provisions of the 1998 Act would, in any case, be warranted.
In any event, in the past year, the House will be aware that the Minister, Deputy McDowell, has been busily engaged in bringing forward an extensive programme of legislative reform. In the counter-terrorism area, efforts in the past year were focused on enacting the Criminal Justice (Terrorist Offences) Act 2005, which occurred in March last. Now that this Act is out of the way, a fuller consideration of the entirety of the recommendations of the Hederman committee can proceed, and the Minister intends to bring further proposals to Government in due course.
In conclusion, the implementation of the Good Friday Agreement remains an ongoing challenge. Recent events in Northern Ireland and this jurisdiction point to the fact that paramilitary organisations are involved in activities of a criminal nature. One cannot ignore the simple fact that there are paramilitary organisations out there committed to the destruction of the Agreement and all other initiatives designed to bring lasting peace to the island of Ireland. As long as there are organisations dedicated to frustrating the will of the people through violence and mayhem, there must be robust counter-measures available to the State. Although the efforts of paramilitary organisations to wreak death, destruction and destabilisation have often been thwarted, we cannot allow the proven successes of the two police services to lull us into a false sense of security about their intentions or their capabilities. Given half a chance, both the Real IRA and the Continuity IRA would gladly bequeath to us any number of terrorist atrocities.
The Offences against the State (Amendment) Act 1998 is one element of the State's ongoing response to this threat. It is just one element, but to do away with it now would be to weaken, in an irresponsible manner, the State's bulwark against terrorism. I commend the resolution to the House.
I welcome the Minister of State to the House. Fine Gael supports the motion, as it always has since 1998. As the Minister of State said, the amending legislation was introduced in September of that year in the aftermath of the horrific Omagh bombing, the worst single incident in more than 30 years of violence. It was a particular shock, coming within months of the signing of the Good Friday Agreement and its subsequent endorsement by referenda by the overwhelming majority of the people of the country.
If the Garda authorities believe they need this legislation to assist them in their battle against terrorism, Fine Gael will certainly support that view, as it has always done. There is no doubt terrorism still exists. We have seen the wave of crime in recent months in which paramilitaries are turning to criminal activities, an area we have tried to tackle in other legislation in the past year or so. There is no doubt that gardaí must be given every possible legislative assistance to fight terrorism and curb paramilitary atrocities on all sides. We believe it is necessary with regard to this legislation. We will probably need it for another couple of years, but hopefully not indefinitely. The vast majority of people on this island understand there can be no return to the previous state of affairs. The will of the people will ultimately prevail in terms of the Good Friday Agreement.
My party fully supports the motion, as we have done through the years. It is interesting that the Hederman report is in full agreement with most of the sections that have been mentioned. In that context, we will fully support the motion.
I do not welcome the extension of these provisions, but I support them. It is unfortunate that circumstances do not allow for the discontinuation of the section. However, I fully support the arguments put forward by the Minister regarding their necessity. We all remember the Omagh bombing atrocity when 29 people were killed in an enormous loss of innocent civilian lives. It always struck me as peculiar, and I could never understand how certain people thought they could attain the unification of this country by killing fellow Irish people. It was a misplaced notion and unfortunately led to much anguish on both sides of the Border, particularly in Northern Ireland.
I am glad to hear of the excellent co-operation between the Garda Síochána and the PSNI. This is a positive force in combating further acts of this nature and is proving quite effective. It is a pity we do not get reciprocation for our co-operation with the British, particularly with regard to past crimes such as the Dublin and Monaghan bombings which caused the largest loss of life on the island during the Troubles and resulted in the deaths of 34 innocent civilians who were going about their daily lives in a normal manner. Despite the best efforts of the investigation inquiry set up by the Government and the work of a committee, very little, if any, co-operation was received from the British authorities. It was recognised by a number of committee members in their examination of the inquiry that there appeared to be PSNI co-operation up to a point but that was unfortunately thwarted by the Northern Ireland Office.
It is also regrettable that we must put such comments on the record of the House, but they need to be said because many people were bereaved and injured and feel quite aggrieved at the failure of legitimate, elected Governments to behave in a way that would conform with proper international standards in this regard. Unfortunately, we have very little evidence of that from our neighbouring island. I have been led to believe there may be further responses coming from those authorities in the near future and I hope there would be a change of heart, even belatedly, to ensure the information that is undoubtedly available in the records would be supplied. In this way, closure can be brought to these events and we can move to a different, newer and better level of co-operation in the genuine understanding that the past has been put to rest, rather than having lingering suspicions that we cannot even now trust neighbouring authorities.
The Minister of State has pointed out that certain sections will cease to operate from 30 June unless there is approval by the Houses to further extend them. That view is also confirmed by the Garda Síochána which is supportive and feels it is necessary that powers be extended. We must take account of this support. It was also good to highlight the number of near misses that have occurred. We had a debate here last night which was critical of small sections of the Garda Síochána, but we should recognise that the force has played a very courageous role in protecting citizens over the years. While there have been breaches, the Garda deserves our commendation and, in certain circumstances, members of the force have paid the ultimate price with their lives in the service of the State and the performance of their duties. We should never forget that and acknowledge their contribution.
A compelling point with regard to the extension of these powers is the continuing threat of international terrorism. Although there may be some lingering threats of ongoing Real and Continuity IRA activities, these have been fairly well contained through co-operation which is a credit to our security forces. However, the threat of international terrorism has defied containment by the most sophisticated of security systems. Apart from the atrocity of 11 September, we were recently reminded of the threat to Europe by the bombings in Madrid, when some 200 people lost their lives while commuting to work in the morning. We must forever be on our guard against people who do not in any way discriminate between innocent civilians and their own objectives. Therefore, the continuation of these strong and hopefully effective provisions is necessary. It is important to legislatively equip the forces of law and order to ensure they can effectively combat existing threats. Liberal elements would obviously argue that some of these provisions are very draconian, but they are necessary and people of liberal views would concur.
It is interesting to note that section 2, whereby a judge can draw inferences from the failure of an accused person to answer questions, has been used on 30 occasions. This has proved quite effective. The Minister has clearly outlined other instances where judges can take inferences from actions and associations of the accused and from the withholding of information. The Hederman committee was divided on section 10 with regard to the period of detention. It is essential when dealing with hardened terrorists, who have been trained in measures to avoid disclosing information, to give gardaí the powers to detain them for up to 72 hours with a judge's permission in order to obtain information vital to a successful prosecution.
There is probably no further need for me to comment on the provisions outlined by the Minister. Seven years after the signing of the Good Friday Agreement, those of us who cherish the achievement of a united Ireland would see lasting peace as a prerequisite in order to create a climate of greater co-operation and further mutual understanding between both sides of these islands. Some of the intemperate comments one hears from time to time are indicative of that. I hope those who aspire to that particular ideal realise it is only through dialogue, communication, co-operation and working together that we will create the climate where we can come closer in the interests of all the people we serve on the island. I hope the current discussions will lead to that end.
I remind the republican movement and all participants that we should not see the peace process as an end in itself. Sometimes that is the impression one gets from comments. The peace process is a step on the road to creating the island and the Ireland we all wish to have.
I welcome and support this action to ensure we continue to have the necessary legislation in place to provide as best we can for the security of our State. When the renewal of these provisions is discussed in this House or in Dáil Éireann, contributions typically begin with reference to the circumstances in which this legislation was enacted, namely, the Omagh bombing. The House does not need me to set out the awfulness of that atrocity. I wish to address the Minister of State.
The House does not need me to set out the awfulness of that atrocity. It is without question so I would rather focus on the contentious issue of whether we need to renew these provisions.
The valid question of balance between maintaining the security of the State and maintaining appropriate civil liberties persists. Since its establishment in 1976 the Irish Council for Civil Liberties has monitored emergency legislation in the State and has called for its constant review for the purpose of determining if its retention is necessary. There is nothing unreasonable in that request and I welcome today's contributions as part of that process. The council points out that on several occasions international human rights institutions, at the levels of the UN and the Council of Europe, have raised concern at the proportionality of Irish emergency powers legislation. That includes the Offences against the State Act.
This is a question of balance. The continuing need for these provisions requires a balanced assessment of the continuing threat to the security of our State. I rely on the Garda Síochána in the first instance to provide that assessment. I thank the Garda Síochána and the Minister for Justice, Equality and Law Reform for the report laid before the House last Monday concerning the operation of these provisions.
I also refer to the conclusions reached last month by the Independent Monitoring Commission which stated they present "a disturbing picture of ongoing activity by both republican and loyalist groups". Before focussing on so-called dissident republicans I wish to comment on the Provisional IRA. The report concluded that the level of paramilitary activity was still high despite a downward trend over the past year. The commission found that the IRA continued to recruit and train new members. We must think about this and ask why this is so. Is this not a continuing threat to the security of the State? I noted with some amusement, if not surprise, the contribution on this day last year by a Deputy in the Lower House. The Deputy and his party suggested we should discount the views of the IMC and stated it has no credibility. Perhaps we should trust the security assessment made by him and his contacts or the preferred assessment of his contacts. The Deputy stated:
This is supposed to be legislation dealing with an emergency. There is no emergency. . . . In fact, it has led to the special branch being what it is today, namely, a political police force.
There is no emergency, no threat to the State security. The IMC imagines it, the Garda Síochána imagines it and, I suppose, the find of 10,000 rounds of IRA ammunition last September was also imagined.
One must consider the scale of such finds. The arsenals of arms are not the arsenals of petty thieves. According to the IMC the ammunition finds demonstrate, "PIRA's continuing efforts to maintain its preparedness". For what is it preparing? I will mention only in passing the Northern Bank robbery, the murder of Robert McCartney, three shootings, six assaults and arson attacks all believed to have involved the IRA. Where are the civil liberties of these victims?
Regarding the Real IRA the primary basis for these provisions is the continuing threat it poses. I refer to the IMC report of last month. The report states:
RIRA has continued to be the most active of the dissident republican groups and has been responsible both for brutal attacks and robbery. It sent explosive postal packages in September 2004 and again in January and February ....it undertook shooting attacks against PSNI stations. It exiled somebody whom it had previously shot. It undertook a number of assaults.....conducted a campaign of hoax and genuine explosive devices at commercial premises... In January 2005 it destroyed a store in Strabane by arson, and in February petrol bombed a person's home. RIRA has also recruited, trained members in the use of firearms and has targeted police officers. It has continued efforts to improve its capacity in the use of explosives. We believe this is the work of an organisation which is ruthless and committed to terrorism.
There have been some arrests of Real IRA members in Northern Ireland and in the South. My central point is that the Real IRA remains a threat to this State. Last Monday five members of the Real IRA were sentenced to jail terms at the Special Criminal Court. Mr. Justice Johnson said the court was satisfied that each of the accused was an active member of the Real IRA, a dissident organisation that is not on ceasefire. The court viewed the charges very seriously. I accept the view of the courts, I accept the view of the IMC and I accept the view of the Garda Síochána. I reject the contrary views of parties with dubious connections and backgrounds. I am satisfied the balance required between civil liberties and State security has been struck and, accordingly, I support the motion.
In enacting legislation such as this we should not take from the political efforts made by the Government and the parties in Northern Ireland to secure full implementation of the Good Friday agreement. That is what everyone who believes in true democracy wants to happen. We wish the Taoiseach and the Government continued success in their efforts to bring about the full implementation of the Agreement.
I thank the House for allowing me to say a few words. I do not propose to speak for long. Like our spokesperson, I regret that it is necessary to renew this resolution but I have no doubt it is necessary. The Minister of State has set out in some detail why that is so and, indeed, active use has been made of the legislation in the past 12 months.
The days immediately following the Omagh bombing, on 15 August 1998, were among some of the most terrible times in the Troubles. This legislation was a key part of the Government's response to try to stop the continuation of such activity. To date, it has been very effective. I wish to second the warm congratulations that have been offered to the Garda Síochána whose members have managed, so far, to get on top of this threat, which cannot be discounted.
It is a great pity that, virtually without a scintilla of public support, dissident organisations still attempt to carry out acts of terrorism from time to time. The ideology of the people concerned — the Real IRA and an associated body, the 32 County Sovereignty Committee— is riddled with fallacies which have been pointed out publicly. History is moving away from such people who are on the wrong side of history. What inspires their ideology belongs to the past, not the future.
As Senator Jim Walsh said, those of us who want to see a united Ireland seek that outcome on the basis of peace and dialogue. It will be achieved by different methods than those that have been attempted in the past. Despite the setbacks that have occurred over the past six months, I would have some hope that we are moving towards a situation where paramilitarism — certainly in its main manifestations — is going to dry up. We would all warmly welcome that.
It is good to see dialogue going on all around. The fact that the Taoiseach met the DUP leader, Ian Paisley, and his colleagues, is far more important than any disobliging comment that may have been made afterwards.
We must also not lose sight of the fact that paramilitary activity is continuing on the loyalist side. I noted in Daily Ireland yesterday that the east Belfast office of an Ulster-Scots organisation was raided by the PSNI, and that it was managed by a leading loyalist. According to the newspaper report, the searches were carried out by detectives investigating serious crime, just days after UDA people had been arrested and charged with money laundering.
A former chairman of the Ulster-Scots Agency, who is a member of the House of Lords, has been remarkably zealous in many public statements expressing concern about the methods that we are using to bring all paramilitarism to an end, in so far as it lies within our power to do so. I hope, therefore, that Lord Laird will show the same zeal in asking questions about money provided by both Governments to what is a bona fide and worthwhile organisation — the Ulster-Scots Agency — to ensure that none of it has been in some way diverted or used for paramilitary purposes. Since this relates to an agency which Lord Laird headed up until recently, he is uniquely well placed to pursue that matter with the vigour that is characteristic of all his interventions.
I would like to echo what Senator Jim Walsh said about the unsatisfactory nature of the response to past investigations concerning the Dublin-Monaghan bombings and, in particular, the Finucane inquiry. The British Government will have to do better because these matters will not go away.
I thank all Senators for their thoughtful contributions to the debate. In an ideal world this type of legislation would not be necessary. However, as long as there are individuals and groups who are bent on usurping the democratic institutions of this jurisdiction, the State must have the means at its disposal to protect its institutions. We know from bitter experience that these organisations have very few qualms, if any, as to the methods they will employ in the furtherance of their aims.
As I indicated in my opening remarks, we are now also confronted by international terrorism, particularly in the form of Islamic terrorism. On 11 March 2004, Europe learned a hard lesson when 200 innocent commuters going about their daily business were murdered in Madrid, with many hundreds more being injured.
The Criminal Justice (Terrorism) Act 2005 was enacted last March to deal with this international terrorist threat by enabling the application of the Offences against the State Acts against international terrorist groups and individuals. Although I do not wish to be in any way alarmist, it would be naive of anyone to think that Ireland does not need to have at its disposal the instruments necessary to fight international terrorism.
As regards the Good Friday Agreement, Senators will be aware that following the elections in the North of Ireland and in Britain, renewed efforts are now being made at a high level to overcome the well known obstacles to progress. Both Governments are anxious to make headway with the ultimate goal of promoting the full implementation of the agreement. However, notwithstanding the much hoped for progress in the peace process, the fact remains that it will not impact in the slightest on those groups which have never acknowledged the legitimacy of the democratically expressed wishes of the people of Ireland, North and South.
As is evident from the report laid before the Houses by the Minister, the provisions of the 1998 Act remain actively in use and are yielding results. Equally, the Garda Síochána is clearly adopting a balanced and reasoned approach to the powers at its disposal. As the Garda authorities themselves state, the 1998 Act is regularly used and has proven to be a vital piece of legislation in the continuing fight against terrorism.
I join with all colleagues in this House in looking forward to a time when the Act will no longer be required. Unfortunately, however, that day has clearly not yet arrived. In the meantime, the State must use all legitimate means to respond to the dissident paramilitary threat.