Seanad debates

Thursday, 11 June 2015

Offences Against the State (Amendment) Act 1998: Motion

 

10:30 am

Photo of Pat O'NeillPat O'Neill (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I welcome the Minister for Justice and Equality to the House and ask the Acting Leader to move the motion.

Photo of Martin ConwayMartin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I move:



That Seanad Éireann resolves that sections 2 to 4, 6 to 12, 14 and 17 of the Offences against the State (Amendment) Act 1998 (No. 39 of 1998) shall continue in operation for the period beginning on 30 June 2015 and ending on 29 June 2016.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I call on the Minister to respond.

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael)
Link to this: Individually | In context | Oireachtas source

The House will be aware that the Offences Against the State (Amendment) Act 1998 was enacted in the wake of the murder of 29 people by the Real IRA in Omagh on 15 August of that year. It was a necessary response to that atrocity and the loss of 29 innocent lives. The bombing and those murders represented a direct attack also on the fragile peace process and indeed on this State. It demanded a resolute response from the State and a clear statement that the morally bankrupt culture of death adopted by these murderers would not prevail over the will of the majority on this island who wished to live in peace. There was a clear necessity to provide strong legislative powers to ensure that the Garda and the courts were in a position to meet the challenges laid down by the opponents of peace. In that regard, the Offences Against the State (Amendment) Act 1998 provided that response.

It is right at the outset that I pay tribute to the excellent work of An Garda Síochána, and the Police Service of Northern Ireland, in counteracting the threat from the paramilitary organisations. Their ongoing seamless co-operation has foiled many attacks and saved the lives, to this day, of innocent people.

The Act contains a series of amendments to the Offences against the State Acts 1939 to 1985 to make them more responsive to the threat from certain groups. Principally, these amendments concern the following: changes in the rules of evidence for certain offences under the Acts, including the drawing of inferences in certain circumstances; the creation of new offences, such as directing an unlawful organisation, possession of certain articles and collecting information; and extending the maximum period of detention permitted under section 30 of the 1939 Act to 72 hours.

Section 18 of the 1998 Act, as amended by section 37 of the Criminal Justice Act, provides that sections 2 to 4, 6 to 12,14 and 17 must be renewed by the Oireachtas at specified intervals if they are to remain in force. By virtue of resolutions passed by both Houses of the Oireachtas in June 2014, these sections continued in force for a period of 12 months.

Prior to moving any motion for renewal, the Act requires that I lay before the Oireachtas a report on the operation of the relevant provisions. The present report covers the period from 1 June 2014 to 31 May 2015. The report was laid before the House on 10 June 2015. It also includes, following a commitment given previously, a table showing the figures for each of the years since the Act came into operation.The table helps to show the importance of the Act in equipping the Garda to detect and prevent terrorist actions.

It is the fervent wish of the Government and, no doubt this House, that the time will come when these provisions will no longer be required. As Minister for Justice and Equality, I must take into account the reality of the situation. In that regard, the Garda assessment, which is shared by the Police Service of Northern Ireland, of the terrorist threat level in Northern Ireland is that it is regarded as severe. We all know that those groups are vehemently opposed to peace and seek to attack the institutions of Northern Ireland and destabilise the peace process. I wish to tell them that they will never succeed.

While the direct threat level in this jurisdiction may be different, it is imperative that our laws and our police are properly equipped to deal with the threat, whether it is in this jurisdiction or Northern Ireland. Let no one be under any illusion that these groups do not represent a threat to this State, as well as to Northern Ireland. It is a clearly established fact that these groups operate hand in hand with organised criminals and, in their behaviour, are indistinguishable from such elements. Any ideology, if it was ever possessed by them, has long ago been eroded by a culture of extortion, kidnappings, beatings and drug dealings.

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael)
Link to this: Individually | In context | Oireachtas source

The Garda must have at their disposal the appropriate measures to meet this threat. The powers available under the 1998 Act are considered paramount in maintaining effective preventative action against these terrorist groups. Consequently, there is a need for the continuance of these provisions.

North-South co-operation in the area of security is vital and I can assure the House that it has never been better. As was the case with my predecessors, I maintain close contact with the Secretary of State for Northern Ireland, Theresa Villiers, and with the Northern Ireland Minister of Justice, David Ford. In addition, the Garda Commissioner maintains close and frequent contact with her counterpart in the PSNI and this relationship is mirrored by contacts between the two forces at every level.

While countering the threat posed by terrorist groups is very important, it is necessary not to lose sight of the threat from international terrorism. The 1998 Act grew out of our own domestic troubles. However, its provisions form an essential element of the State's response to the threat of terrorism from any source. As seen with events in Paris and Belgium, and the continuing conflict in Syria, we cannot ignore the growth in recent years of the international terrorist threat. In co-operation with our EU partners, we must continue to counteract any threat from such sources. The 1998 Act forms part of the response to that threat also, as does the recently commenced Criminal Justice (Terrorist Offences) Act 2015 which came into force on 8 June this year. I thank Members of this House for facilitating the passage of that legislation earlier.

It is the firm view of the Garda Síochána that the Act continues to be a most important tool in its ongoing efforts in the fight against terrorism. The Garda authorities have stated that the provisions of the Act are used regularly, which is evident from the report that I have laid before the House. It is essential that the Act's provisions should continue in force to support the ongoing investigation and disruption of terrorist activity.

I shall turn to the provisions of the 1998 Act, which are the subject of the resolution. The report I have mentioned demonstrates the value of the relevant sections to the Garda, and the necessity for their continued availability in tackling the terrorist threat.

Section 2 allows a court, in proceedings for membership of an unlawful organisation, to draw appropriate inferences where an accused person fails to answer or gives false or misleading answers to questions. However, a person cannot be convicted of the offence solely on the basis of such an inference. There must be some other evidence which points towards a person's guilt. The section was used on 42 occasions in the period covered by the report.

Section 3 requires an accused, in proceedings for membership of an unlawful organisation, to give notification of an intention to call a person to give evidence on his or her behalf. This section was not used in the period in question.

Section 4 provides that evidence of membership of an unlawful organisation can be inferred from certain conduct, including matters such as movements, actions, activities or associations on the part of the accused. This section was used once in the period covered by the report.

Section 6 was used once. Section 7 was used on 21 occasions. Section 8 was not used in the reporting period in question and section 9 used on 10 occasions.

Section 10 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, following an application by a Garda of at least Superintendent rank. An extension was applied for in 20 cases and was granted in 19 cases.

During the period under the report, section 11 was used on 18 occasions, section 12 was not used and section 14 was used on nine occasions. Section 17 was not used in the reporting period in question.

As the report indicates, a number of sections, namely, section 3 on the notification of witnesses, section 8 which refers to the unlawful collection of information, section 12 which refers to training persons in the making or use of firearms, and section 17 which refers to the forfeiture of property, were not utilised during the reporting period in question. It should not be inferred from the lack of use of these provisions that they are in some way redundant or unnecessary as the usage of the different sections can vary, as Senators will understand, from year to year.

The existence of the provisions means that members of terrorist groups are aware that the State remains resolute in its determination to use every lawful means to defeat them. I wish to point out that section 12 has, in effect, been strengthened by a provision in the legislation that I mentioned earlier. I refer to the Criminal Justice (Terrorist Offences) (Amendment) Act 2015. It creates the three new offences of public provocation to commit a terrorist offence, recruitment for terrorism and training for terrorism. These offences carry sentences for imprisonment of up to ten years on conviction on indictment.

As I have already stated, terrorist groups remain a threat to the peaceful lives of people on this island. Such terrorists oppose the benefits that have flowed from the peace process and are determined to undermine same. The State must retain, in its laws, the capacity to defeat them.

On the basis of the information set out in the report, and on the advice of the Garda authorities, I ask the House to approve the continued operation of the relevant provisions of the 1998 Act in order for them to remain in operation for a further 12 months, commencing on 30 June 2015. I commend the motion to the House.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank the Minister. I call Senator Byrne. The Senator has four minutes.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
Link to this: Individually | In context | Oireachtas source

I will not use all of my allotted time.

My party supports the continued operation of the Offences Against the State (Amendment) Act, as I have done every year in this House. We brought that in at a time of terrible strife in this country. It was done at a time when we thought we would have uninterrupted peace but, sadly, peace did not last. Unfortunately, there are still people who do not accept the message, who are not with the programme and are intent on killing, maiming and kidnapping. These people are very much involved in oil laundering, diesel laundering and smuggling. They conduct so-called businesses all along the Border area between this State and the North of Ireland.

We introduced the Act in response to the Omagh bombing. The State must remain vigilant in the face of a continuous threat posed by dissident republicans who refuse to recognise the legality of this State which is provided for in the Constitution. My party supports the motion. The Minister has outlined the various sections that have been used. As one can see, they have used on many occasions and, therefore, it is important that this legislation is maintained. We should consider permanently keeping the provisions in legislation. I do not consider many of the provisions to be extraordinary when one must deal with terrorists. We should not have to return here every year to renew them. It feels like we must almost apologise for doing so, but I make no apology. We are here to pass the legislation and long may it last. Long may the gardaí and their colleagues in the Police Service of Northern Ireland continue to do their job.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I call Senator Conway. The Senator has four minutes.

Photo of Martin ConwayMartin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I will not require four minutes. Senator Byrne has stolen my thunder because I was going to make a similar point. I agree with him that we should make these provisions a permanent instrument that would equip the Garda to deal with a growing terrorist threat.We have had a type of terrorist threat until now, given that the provisions of the Offences Against the State Act have had to be used on so many occasions. There is a new type of terrorism developing across the world. I suggest the Minister could consider enshrining this Act on a permanent basis. If the Garda Síochána deems that it needs further additional powers, we in the Oireachtas should not be found wanting in facilitating the force with those powers.

Senator Byrne is quite correct when he states that we feel as if we are apologising for coming into the House annually to review this legislation. This is my third year doing so on behalf of the Fine Gael Party. We should not have to do it as this is what is required. It is common sense. I think everyone would like to make the legislation permanent.

Photo of Pat O'NeillPat O'Neill (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I welcome Deputy Noel Grealish and his friends to the House. Deputy Grealish was recently crowned the winner of the Oireachtas captain's prize.

Photo of David NorrisDavid Norris (Independent)
Link to this: Individually | In context | Oireachtas source

I disagree with my distinguished colleagues. It is very important we review this legislation every year. The Act contains infringements of human and civil rights, and although they are understandable in the circumstances, I think it is absolutely necessary that every year we review them. I am moved by the Minister's invocation of Omagh. I remember that day; it was an appalling situation - utterly inhuman. Among the lives lost was a child in the womb. It was a barbarous, inexplicable and unforgivable outrage. I am rather surprised and a bit alarmed that the Minister demonstrates the importance and significance of the Act to the Garda Síochána, particularly when she states that the terrorist threat in Northern Ireland is regarded as severe. I think we in the South often do not recollect this or realise the pressures that are still upon the fragile peace process in Northern Ireland. There is no doubt, of course, that there are hardened criminals involved. They migrate very easily into the drugs trade. Not only in Northern Ireland but in Dublin, and in my area, they were involved very early in the drugs trade. This is appalling.

The Minister recites other activities, such as extortion, kidnapping, torture and beatings, which need to be stamped out. I welcome the strong evidence of co-operation between the PSNI and the Garda Síochána. This is excellent. This is the way in a sense in which the island becomes united behind the forces of law and order.

There is a balance in the legislation, which I welcome because the drawing of inferences from an accused person refusing to give information is delicate. It infringes the right to silence but I am glad to see it is balanced by the fact that a person cannot be convicted solely on the evidence of refusing to give an answer. This is what we really need to watch in terms of human rights. The right to silence is an ingrained and appropriate part of the law. It requires serious justification to infringe it.

Section 4 covers the evidence of membership of certain unlawful organisations being inferred from certain conduct, including matters such as movement, actions, activities or associations on the part of the accused. I understand this but it needs to be monitored because this is getting quite close to guilt by attainder. It is important we monitor and keep these things under review.

The remaining provisions, such as making it an offence for people to train in the use of or have possession of firearms and so on is perfectly normal. It would be extraordinary if the State did not arm itself to defend itself against people who are setting up private armies and training them.

To repeat, this exercise is a useful reminder of the threat under which the peace process continues. I am quite prepared on this occasion to support the Minister in continuing these provisions, but I think it is important we review them every year. I make no apology for that. I know I am possibly in a minority of one, although I see that I am not.

Photo of Ivana BacikIvana Bacik (Independent)
Link to this: Individually | In context | Oireachtas source

I welcome the Minister for Justice and Equality, Deputy Fitzgerald, to the House. I echo Senator Norris's comments on the appalling atrocity of Omagh. I think it is important we put that on the record and the reason for the implementation of the 1998 Act. I absolutely agree with Senator Norris that these provisions deserve annual scrutiny by Parliament. That is a very important mechanism and safeguard and I would not agree with the idea of making the provisions permanent without having the capacity to come back. I have been here every year since 2008, in various capacities, to speak on this issue. It is really important we review the use of these provisions. They depart from our normal values of due process. I should declare an interest as someone who practised in the Special Criminal Court and operated these provisions as a defence lawyer. They depart from normal principles of due process. Section 3 requires an accused to give notice of an intention to call a person to give evidence on his behalf when charged with membership of an unlawful organisation. Senator Norris rightly referred to section 4 as potentially giving rise to guilt by association because it allows inferences to be drawn from conduct such as associations on the part of the accused concerning evidence of membership of an unlawful organisation, a very serious offence.

Photo of David NorrisDavid Norris (Independent)
Link to this: Individually | In context | Oireachtas source

Like the Roche case.

Photo of Ivana BacikIvana Bacik (Independent)
Link to this: Individually | In context | Oireachtas source

With the departure from due process values involved in these provisions, there is a potential for abuse of power. I commend the Garda Síochána and the PSNI on their really important and valuable work in monitoring and challenging terrorist threats. I know we are all conscious of the severe nature of the terrorist threat, but there is a balance and it is useful we have this scrutiny.

I thank the Minister for providing this table in her report, which very helpfully gives us a 15-year pattern of usage of the provisions. I have said before that where a provision has not been used for years, we should specifically consider repealing it, even if we are keeping the remaining provisions in force. I would have thought section 4 could be repealed but I see it has been used in the period under review. It was previously only used in 2008. I am conscious, as the Minister has said, that just because a provision has not been used in one year, usage may vary from year to year, and particular instances may give rise to that. Section 12 has not been used since 2002, so again we should keep this matter under review.

I am happy to support the motion this time. I absolutely support the Minister in saying that it is the fervent wish of the Government and all Members that a time will come when these provisions will no longer be required, but for the time being I agree that they be kept in force. I think we should keep them under annual scrutiny.

Photo of Trevor Ó ClochartaighTrevor Ó Clochartaigh (Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Cuirim céad fáilte roimh an Aire. Ba mhaith liom a rá go dtuigimid ar fad an cúlra atá leis an reachtaíocht áirithe seo. Is trua é go gcaithimid athnuachan a dhéanamh air gach bliain. Ní dóigh linn go bhfuil gá leis. Is dóigh linn gur cheart breathnú arís air.

We all know the background of the Offence Against the State Act. Senators need to consider the disruptive effect of this legislation on human rights, civil liberties and on democratic life in the State. We are living in a new political reality and the Government has an onus to live up to its obligations under the Good Friday Agreement to remove obstacles that hinder the normalisation of security. In this context the scrapping of the Offences against the State Act is a must. The provisions up for renewal and indeed the Act in its entirety have no place in a modern democracy and have nothing to contribute to the future of peace on the island.

The apparent apathy of other Opposition Members on this issue and the ill-advised enthusiasm of others for specific aspects of the Act have obvious negative implications for all of society. The Minister referred to upholding and implementing in full the Good Friday Agreement because it is the democratic wish of the people. This means, therefore, that there is an onus on us to bring about as quickly as possible the normalisation of policing and justice on the island. In this context the Government has obligations under the Good Friday Agreement to work towards the normalisation of security in the Twenty-six Counties and the Six Counties. Sinn Féin believes the legislation is counter-productive in the long run. The retention of these provisions is an admission of the failure of this and previous Government. The challenge for us is to prove we have a normal society and that normal policing will convict those who seek to undermine it. Draconian legislation can never be a substitute for sound law and good accountable policing. The continuation of the Act erodes the human rights ethos in which the State's legislation should be grounded. We are a normal society and our existing laws are strong enough if properly resourced.

Is dóigh linn go bhfuil an reachtaíocht seo ag dul thar fóir. Dá mbeadh an córas póilíneachta ag obair mar is ceart, agus na hacmhainní cearta ag na póilíní, bheidís in ann déileáil leis na contúirtí atá luaite ag mo chomh-Sheanadóirí.

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank the House for taking the time to consider this most important matter. As I have said, there remains a substantial threat from terrorist activity.I note what Senator Norris has said regarding the threat in Northern Ireland, which is rated as severe. Sometimes that can go out of the public consciousness but the Senator gave us a useful reminder of that situation. The message needs to be loud and clear that the State will not bow to the self-serving interests of such individuals and that our resolve to see them defeated will not diminish. These offences are subject to trial in court and any accused person has recourse to legal representation and the protection of the legal process.

I thank Senator Byrne for the support he has shown for the motion and note the point he made about permanence. These are robust measures which, as Senator Bacik noted, are not used in the normal course of criminal law. We must be conscious of the severe threat that persists in Northern Ireland and there is an ongoing need for these robust measures. The annual review of provisions is part of the process of achieving a balance in the legislation. I commend the motion to the House.

Question put:

The Seanad divided: Tá, 30; Níl, 2.



Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Trevor Ó Clochartaigh and Kathryn Reilly.

Question declared carried.