Mark Daly (Fianna Fail)
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I remind Members that amendments Nos. 9 to 14, inclusive, and 19 are related and the House agreed to discuss them together. Amendment No. 11 is a physical alternative to amendment No. 10. Does anybody with to contribute?

Alice-Mary Higgins (Independent)
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I believe the Minister of State was in possession.

Mark Daly (Fianna Fail)
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We were discussing amendment No. 19 and the Minister's colleague, the Minister of State, Deputy Ardagh, was present. Does the Minister wish to comment on amendment No. 19?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I have just come from a meeting of the Oireachtas committee on justice. These amendments, in particular amendment No. 19, seek to introduce various amendments to section 3 of the Bill. I will take the opportunity to address amendment No. 19, for which I thank Senator Higgins, which would amend the existing section 6(1)(a)(ii) of the principal Act. This subsection of the principal Act currently provides that a person is guilty of an offence under the Act if he or she attempts to engage in terrorist activity or terrorist-linked activity, other than public provocation to commit a terrorist offence. Thus, the Act as it stands does not allow for an attempt offence for public provocation. As mentioned, section 3 reformulates the definition of public provocation and provides in section 4A(a)(ii) that the publication or distribution of a message to the public that glorifies terrorist activity can, if other conditions are met, form part of the offence of public provocation. The inclusion of this provision was required to give effect to the directive. If I understand the intent of Senator Higgins's amendment correctly, it is to ensure that attempts to glorify terrorism are not offences under the Bill. If that is the case, I can assure the Senator that this amendment is unnecessary as this is not an offence under the Bill.

Section 4A(a)(ii) does not refer to an activity, much less an offence. It refers to the characteristic or nature of a message or the content of a message that may, subject to other conditions, form part of the offence of public provocation. The definition of public provocation to commit a terrorist offence in section 3 of the Bill includes the distribution or publication of a message that glorifies a terrorist activity. To meet the definition of the offence, such a message to the public would have had to be published or distributed with the intent of inciting a person to commit a terrorist activity and the message's "distribution or publication" would have to give rise "to the reasonable apprehension that the commission of a terrorist activity could thereby result." Thus, glorification is not of itself an activity or offence under the Bill; rather, it can be a relevant characteristic of a message published or distributed to the public within the definition of public provocation. Further, section 2 of the Bill, which amends section 4 of the principal Act, provides that public provocation to commit a terrorist offence falls within the definition of terrorist-linked activity for the purposes of the Act.

Section 7 of the Bill amends section 6 of the principal Act by, among other things, introducing a new subparagraph (iia) under subsection (1). This new provision provides that attempts to engage in terrorist linked activity are offences under the Act other than "public provocation to commit a terrorist offence". Thus, as attempts to provoke the commission of a terrorist offence are not offences the Bill, so then attempts to glorify terrorism are not offences under the Bill. For these reasons, I cannot support the amendment.

Alice-Mary Higgins (Independent)
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I appreciate the clarification in respect of amendment No. 16. I seek further clarification regarding the other amendments in this grouping. I think amendment No. 14 is included.

Mark Daly (Fianna Fail)
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The grouping is amendments Nos. 9 to 14, inclusive, and amendment No. 19.

Alice-Mary Higgins (Independent)
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In amendment No. 13, I suggest the insertion of, “For the avoidance of doubt, non-violent expressions of solidarity or support for actions taken in relation to matters of international law shall not be construed as glorification for the purposes of this section.” Amendment No. 14 would insert, “for avoidance of doubt, the distribution or publication of materials in relation to historic or contemporary resistance to colonial occupation or exploitation, shall not be construed as glorification for the purposes of this section.” The concern is with what may be construed. I use the example of people in an occupied territory who are taking action in respect of that, or people who find themselves in situations where their rights are being violated under international law and are taking direct action in respect of such violations. Those who might express support or solidarity with them, or give language that is seen to be encouraging, could indirectly be considered as inciting further such action.

I will provide a couple of examples in this regard. If someone has described themselves as anti-Zionist or if persons within an occupied Palestinian territory are taking direct action in relation to the taking of a home, land and so forth, does that mean that their actions may, according to the Israeli state, be considered as ones that “destabilise or destroy the fundamental political, constitutional or social structures of a [state]”? What about a context where someone is expressing support with persons who are taking actions in that regard? This is the question. If a person expresses support for people who are in an illegally occupied territory - it may be the occupied Palestinian territories or other illegally occupied territories, such as occupied Crimea, for example - and taking direct action, will those expressions of support, which may include criminal damage, constitute glorification?

The historic example of Nelson Mandela has been used a number of times in today’s debate. The South African state regarded him as a terrorist and his actions as terroristic. As he was construed as such, would persons expressing support for his actions and encouraging the resistance to apartheid in that context be supporting terroristic activity and encouraging its further incidence?

We do not need to use historic examples; we can look to contemporary Afghanistan. The European Union recently met the Taliban. It is looking to normalise relations in that context. In Afghanistan, a huge section of the population is under gender apartheid and forbidden from basic participation. If women take direct action in respect of their rights under international law, and if the state of Afghanistan construes such action to be a terrorist activity, would those expressing support for it be glorifying, celebrating or praising terrorism?

Again, the legislation only requires that the language could give rise to further actions. There does not have to be any evidence that it has done so. These are the vulnerabilities we seek to address. That is what I am trying to come at with a couple of these amendments. If the Minister will not accept these amendments, I seek assurances as to how those kinds of circumstances will not arise because, on the face of it, they could. The caveats currently within the Bill are not enough to secure against them.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Senator Higgins for coming back in to talk about amendments Nos. 13 and 14. At the outset, I assure the Senator that the types of examples she gave on the floor of this House as potential prosecutable offences are not offences. I do not see any circumstance as to how they could apply or come within the terms of section 3 of the legislation. However, I have a problem with provisions going into criminal statutes that begin by stating, “For the avoidance of doubt”, and then go on to specify what is not covered. It is bad drafting procedure to put into legislation, “For the avoidance of doubt, this is not covered”, because it assumes that all that is not covered must be specified. There are many other things not covered by this legislation. I would be concerned if we started saying that X and Y are not covered because people might then say that Z must be covered because it is not expressly ruled out.

As the Senator will be aware, we have strong freedom of expression rules in this country based, in the first instance, on our Constitution and, in the second instance, on the European Convention on Human Rights, ECHR. They vigorously defend the right of people to express their opinions, such as the examples the Senator identified in her contribution.

Looking at section 3, the important part in order for this offence to be triggered is that there has to be the intention of inciting persons to commit terrorist activity. It only triggers if that occurs. It is important to note, in the context of the directive that is being transposed, that the types of events we are talking about here are those like that horrific attack in the Bataclan. If there were individuals who incited others - more naive people - to get involved in the commission of a terrorist act such as that, then those masterminds behind it, who may have been influential on impressionable people who came before them, should have a criminal liability. That is the purpose of section 3. The purpose of section 3 is not in any way to curtail freedom of expression in the circumstances and examples the Senator set out.

Alice-Mary Higgins (Independent)
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The problem, which the Minister has still not answered, is with where the interpretations overlap. It is one thing to outline how the legislation is envisaged to be used, but the point is that the text continues to describe how it relates to incitement. The question as to actions that are offences will come up again. This is a direct question because I am genuinely not clear on this. I am absolutely open in this regard. As I read it, the legislation relates to not just actions in this State, but those in other states as well. For example, it relates to actions in other states that would, were they to take place in this State, be considered an offence. However, that is focusing solely on the action. Criminal damage is one such example. If an action has taken place in an occupied territory against a state, which may be an occupying state, can we have absolute clarity that such actions would not be considered terrorist actions? I seek a direct answer in that regard. Even though the language in our laws and the act that took place in the other state align, the interpretation may differ.

We are talking about a list of actions that become terrorist almost by definition of intent under our law. In other countries, such actions may become terrorist because they are taken in support of a proscribed organisation. In some states, those proscribed organisations may include environmental activism and activism in respect of the Genocide Convention and protection of same.In some countries, they may include activists in favour of gender equality. Whose definition of terrorist activity applies? The Bill refers to where the two acts are comparable, implying that if the act took place in Ireland, it would be an offence in another member state. If, for example, Germany decided to proscribe a number of Palestinian support organisations as terrorist organisations, what would occur? If Germany has a similar law on its books, because it would be derived from the same directive, does Ireland have to treat as an offence an act that would be an offence if it were carried out in Germany, even though those to whom the law would apply would be different in different places? That is a general question. Very specifically, what is the position where an occupied territory is involved? I want to know how these things link up. Positive intent is one thing, but I am wondering how this pans out. These are not very loose hypotheticals; they relate to the overinterpretation of these kinds of laws that we have seen in the UK, the US and also now, to a degree, in Germany. Therefore, it is extremely relevant to consider how this will pan out.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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In the first instance, we need to recognise that interpretation of this legislation when somebody is being prosecuted for an offence under section 4A of the principal Act is the function of the Judiciary. No matter what the Senator or I say, we are not the interpreters. However, I do have a responsibility to set out the clear intention of the legislation. When the court comes to examine the offence and consider the section, it will primarily rely upon the wording we have put into the legislation. The Senator mentioned in her introductory remarks the question of whether something could be considered to incite. There is a requirement that there be an intention on the part of the accused to incite persons to commit terrorist activities. Therefore, the fact that something could be considered inciting is not sufficient.

On the definition of terrorist activity, the Senator will see that the earlier part of the legislation, section 2 sets out the definition of terrorist activity. It is much more limited than the types of definitions that are included within legislation in Germany or indeed the UK. I am more confident talking about the legislation that operates in the UK than that in Germany. Section 13 of the UK's Terrorism Act 2000 is legislation I would not even attempt to introduce here. It is nowhere near the legislation that I propose to the Seanad today. That Act states that if you wear an emblem that can be seen as supportive of a prescribed organisation, you are committing an offence. It is an extraordinarily broad criminal Act that covers organisations that can be proscribed by a Minister just at the stroke of a pen. That is not what is envisaged here.

It is also important to point out that, under subsection 6(6) of the 2005 Act, where a person is charged with an offence that, in the opinion of the Attorney General, was committed in or outside the State with any of a listed set of intentions, the proceedings can proceed only with the consent of the Attorney General. That is another safety net.

To answer the Senator's queries briefly and respond to her concerns, there is nothing I see in what I am proposing in section 3 that could give rise to the type of prosecutions that concern her and that we have seen in the UK. Here, there must be an intention to incite a person to commit terrorist activity. Terrorist activity is very clearly defined in section 2.

Alice-Mary Higgins (Independent)
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I move amendment No. 10:

In page 5, to delete lines 34 and 35.

Mark Daly (Fianna Fail)
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I welcome Deputy Holly Cairns's dad to the Gallery. He is most welcome to Seanad Éireann. I was trying to do a bit of lip reading. I thank Deputy Cairns for bringing her dad to Seanad Éireann.

Alice-Mary Higgins (Independent)
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I move amendment No. 11:

In page 5, line 34, to delete "(including by praise or celebration)".

Sarah O'Reilly (Aontú)
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I move amendment No. 12:

In page 6, to delete lines 1 to 3 and substitute the following: "(b) such distribution or publication gives rise to the reasonable apprehension that the commission of a terrorist activity could thereby result by reason of the communication expressly and directly inciting the commission of such activity.".".

Alice-Mary Higgins (Independent)
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I move amendment No. 13:

In page 6, between lines 3 and 4, to insert the following: "(c) for the avoidance of doubt, non-violent expressions of solidarity or support for actions taken in relation to matters of international law shall not be construed as glorification for the purposes of this section.".".

Alice-Mary Higgins (Independent)
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I move amendment No. 14:

In page 6, between lines 3 and 4, to insert the following: "(c) for avoidance of doubt, the distribution or publication of materials in relation to historic or contemporary resistance to colonial occupation or exploitation, shall not be construed as glorification for the purposes of this section.".".

Mark Daly (Fianna Fail)
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As one Senator neglected to vote, the result has been amended accordingly.

Conor Murphy (Sinn Fein)
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I move amendment No. 15:

In page 9, between lines 4 and 5, to insert the following: “Training for purpose of serving in the armed forces of a state engaged in

war crimes, crimes against humanity or genocide

4F. (1) For the purposes of this Part, training in the armed forces of a state engaged in the commission of war crimes, crimes against humanity or genocide means intentionally providing instruction or training in the skills of—

(a) making or using, for the purpose of committing, or contributing to, the commission of war crimes, crimes against humanity or genocide—

(i) firearms or explosives,

(ii) nuclear material,

(iii) biological weapons, chemical weapons or prohibited weapons,

or

(iv) such other weapons, or noxious or hazardous substances, that may be used in the commission of war crimes, crimes against humanity or genocide as the Minister may prescribe,

or

(b) such other techniques or methods for the purpose of committing, or contributing to the commission of, war crimes, crimes against humanity or genocide as the Minister may prescribe, knowing or believing that it is likely that the skills provided are intended to be used by a person receiving the instruction or training for the purpose of committing, or contributing to the commission of, war crimes, crimes against humanity or genocide.

(2) The Minister may, if he or she considers it appropriate to do so, make regulations for the purposes of subsection (1) and he or she shall—

(a) before making such regulations, consult with the Minister for Foreign Affairs, the Minister for Defence, the Commissioner of An Garda Siochana, and such other Minister of the Government as the Minister considers appropriate having regard to the weapons, substances, techniques or methods concerned, and

(b) in making such regulations, have regard to the following:

(i) the capability of the weapon, substance, technique or method concerned to cause death or serious bodily injury to persons or substantial material damage to property;

(ii) the capacity of the weapon, substance, technique or method concerned to be used for the purposes of committing war crimes, crimes against humanity or genocide and the likelihood of it being so used;

(iii) the extent to which instruction or training—

(I) in the making or use of the weapon or substance concerned,

or

(II) in the use of the technique or method concerned, is required for the making or use, as the case may be, of that weapon, substance, technique or method for the purpose of committing, or contributing to the commission of, a war crime, a crime against humanity or genocide.”.”.

Conor Murphy (Sinn Fein)
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I move amendment No. 16:

In page 9, between lines 4 and 5, to insert the following: “Recruitment for purpose of serving in the armed forces of a state engaged in war crimes, crimes against humanity or genocide

4F. For the purposes of this Part, recruitment for the purpose of serving in the armed forces of a state engaged in war crimes, crimes against humanity or genocide means the intentional recruitment of another person to serve in the armed forces of a state which is engaged in, or is reasonably suspected of having engaged in, a war crime, a crime against humanity or genocide.”.”.

Conor Murphy (Sinn Fein)
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I move amendment No. 17:

In page 9, between lines 4 and 5, to insert the following: “Travel for purpose of serving in the armed forces of a state engaged in war

crimes, crimes against humanity or genocide

4F. For the purposes of this Part, a person travels for the purpose of serving in the armed forces of a state engaged in war crimes, crimes against humanity or genocide if he or she travels from the State to a place other than the State for the purpose of participation in the armed forces of another state which is engaged in, or is reasonably suspected of having engaged in, genocide, crimes against humanity or war crimes.”.”.

Conor Murphy (Sinn Fein)
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I move amendment No. 18:

In page 9, between lines 4 and 5, to insert the following: “Organising or facilitating travel for purpose of participation in the armed forces of another state which is engaged in genocide, crimes against humanity or war crimes

4F. For the purposes of this Part, a person organises or facilitates travel for the purpose of participation in the armed forces of another state which is engaged in genocide, crimes against humanity or war crimes—

(a) if he or she—

(i) does any act—

(I) consisting of the making of an arrangement for the travel by any person to the State from a place other than the State, or

(II) that would facilitate the travel by any person to the State from a place other than the State,

or

(ii) causes any person to do such an act, knowing that such travel is for a purpose referred to in section 4F,

or

(b) if he or she—

(i) does any act—

(I) consisting of the making of an arrangement for the travel by any person from the State to a place other than the State, or

(II) that would facilitate the travel by any person from the State to a place other than the State,

or

(ii) causes any person to do such an act,

knowing that such travel is for a purpose referred to in section 4F.”.”.

Mark Daly (Fianna Fail)
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Amendment No. 19 was discussed with amendment No. 9.

Alice-Mary Higgins (Independent)
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I move amendment No. 19:

In page 9, between lines 16 and 17, to insert the following: “(i) the insertion, in subparagraph (ii) of paragraph (a), after “terrorist-linked activity”, to insert “, other than activity described in section 4A(a)(ii)”,”.

Mark Daly (Fianna Fail)
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Amendments Nos. 20 to 24, inclusive, in the name of Senator Higgins are related and may be discussed together by agreement. Is that agreed? Agreed. I welcome the Minister back to the House.

Alice-Mary Higgins (Independent)
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I move amendment No. 20:

In page 10, line 15, to delete “of itself”.

Amendments Nos. 20 to 24, inclusive, all relate to my concerns about how the Bill can impact the ability of people to freely protest. Amendment No. 20 seeks to strengthen the provisions that protect people involved in protest against prosecution for terrorist offences under section 6(5) of the 2005 Act by removing the words "of itself" so that the section would read that engagement in protest, advocacy or dissent, or in any strike, lockout or other industrial action, shall not constitute grounds for inferring that the person is doing an act with the intention of seriously intimidating a population and so on, that is, the three grounds for intent set out in the Bill, namely, intimidation of the population, unduly compelling a government or international organisation to perform or abstain from performing an act or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a state or an international organisation. Engagement in protest, advocacy, dissent, strikes, lockouts or industrial actions should not constitute grounds. The term "of itself" implies that such actions may be considered as part of constituting grounds for inferring that a person is doing an act with a terrorist intent. The removal of those legitimate activities should be explicit and not partial or coming with a caveat.

Amendment No. 21 refers to the criticism of a state for breaching international law. I indicate that I may come back to this on Report Stage. International organisations can also breach international law. The amendment seeks to ensure that criticism of a state for breaching international law does not constitute grounds for inferring that a person is trying to seriously intimidate a population, unduly compel a government or international organisation or seriously destabilise the fundamental structures of a state. It is important that we are crystal clear that criticisms in respect of breaches of international law should never constitute grounds for inferring a terrorist intent.

Amendment No. 22 seeks to ensure that the opposition to illegal occupation does not constitute grounds for inferring that a person is trying to seriously intimidate a population. I am considering, for example, the actions of persons who are subject to illegal occupation. I am concerned that, for example, the opposition of Palestinians to the occupation of the West Bank may include a message that Israeli settlers should not be in the West Bank or East Jerusalem, and that could be construed as intimidating the population of settlers within an occupied territory. I have asked the Minister on a previous occasion about actions that take place in an occupied territory. I seek clarity on how that would relate to an occupied territory.

Amendment No. 23 seeks to ensure that it shall not be considered as unduly compelling a government or international body to perform, abstain or abstain from performing an action if that action is necessary to comply with international law. This refers to instances where actions are taken to ensure compliance with international law such as, for example, the blocking of the delivery of arms which have the known intent of being exercised in war crimes. In such circumstances, when compliance with international law is the intent then that should not be construed as part of a definition of terrorist intent.

Amendment No. 24 seeks to ensure that it should not be construed that a person is seeking to destabilise the fundamental structures of the state where that state is in breach of international law and thus destabilised through those violations already. For example, when actions are taken which have an economic impact in seeking to block or end economic activities that are in breach of international law, then that should not be construed as destabilising the economic or other structures of a state. If those economic structures are built on a breach of international law and an action, protest or intention is intended to stop them, that should not be regarded as destabilisation. The fact they have an economic structure which is premised on breaches of international law should be regarded as the destabilising factor.

I spoke on Second Stage about my concern around the language of unduly compelling a government to act a certain way. I am concerned that that is a very wide framing. What constitutes "unduly"? When does advocating that a Government to take action on breaches of international law or illegal occupation cross the line into unduly compelling?Do we stray into a space, as I have said before, where direct action or protest, which may involve an offence in terms of, for example, criminal damage, rather than being prosecuted as criminal damage, is now going to be prosecuted as a terrorist offence because it has a policy intent? In fact, somebody who is committing criminal damage in an act, for example, of direct action protest, rather than simply being prosecuted under direct action, may see the far more severe sentencing that is available under the terrorist legislation of, for example, up to ten years in prison for events or for an action, which would not normally attach to those things, because the person does so while expressing a view in relation to Government policy or action. Again, what does this mean in terms of people who are, for example, protesting the use of our airports for violation of international law? Will that sort of protest now come under a new rubric or be under a new threat of this far more severe set of penalties?

The Bill deletes the protection of the individual's right to protest and potentially conflates their actions with definitions of terrorism. That is a concern, and I highlighted in one of my earlier comments the comments from Amnesty International where it highlighted that a person who performs an action for reasons of conscience or for reasons of compliance with international law can face much higher penalties than a person who does so with a purely malicious intent. That seems to be an anomaly and a danger within the Bill.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Senator Higgins for her amendment. We are discussing amendments Nos. 20 to 24, inclusive, and the first, in particular, seeks to amend what is section 6(5) of the 2005 Act. The first amendment put forward by Senator Higgins is to remove the words “of itself” from the new definition going into subsection (5). It is important to point out that the new subsection (5) does not differ that much from the old subsection (5) in what is section 6 of the legislation, and if we look at what we are dealing with in terms of that subsection, it reads "the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout or other industrial action, is not of itself a sufficient basis for inferring that the person is carrying out an act with the intention specified ... of terrorist activity". For 20 years we have had the term “of itself” contained within section 6(5) of the 2005 Act and it has not given rise to the issues the Senator is concerned about.

With the second issue the Senator raised in respect of amendment No. 19, she expressed concern about the reference to “unduly compelling.” Again, it is important to note that in the 2005 legislation, the definition of “terrorist activity” means an act that is committed in or outside the State and is committed with the intention of "unduly compelling a Government or international organisation to perform or abstain from performing an act”. Obviously the Senator is not precluded from raising issues of concern to her in respect of this legislation as it goes through the House, but it is instructive to note that those two terms, “of itself” and “unduly compelling”, have been in our legislation for more than 20 years and they have not given rise to the issues of concern she has mentioned. The inclusion of “of itself” in the subsection I have referred to means that the specific act that a person has engaged in, whether protest, advocacy or dissent, when considered entirely on its own, is not grounds to infer attention to commit a terrorist act. However, if we were to remove “of itself”, no doubt a smart and shrewd lawyer would be able to state that, if somebody was involved in strike action but also in quite clearly terrorist action, the provision could not apply because it says in the legislation that, if anyone is involved in any strike action, that cannot constitute grounds for inferring they are doing terrorist activity. The reason we put in the words “of itself” is to ensure it is the specific act itself that recognises that they cannot be prosecuted because they are involved in that activity of itself. If they do something else, obviously that can be taken into account. I oppose amendment No. 19 because it would reduce that specificity and make the text less clear.

The Senator’s further amendments seek to introduce new subsections which would variously provide that criticism of a state that is breaching international law or opposition to the occupation by a state of a territory without legal basis cannot be construed as grounds for intent to commit a terrorist act, or intent to unduly compel a government to perform an act if that act is necessary to comply with international law, or cannot be construed as intent to destabilise the economic structures of a state where such destabilisation will arise from that state's breaches of international law. I emphasise again the protections which exist in Ireland for freedom of expression, to which I referred previously in response to other amendments the Senator put forward. The “for the avoidance of doubt” provision within a statutory regime is inappropriate and confusing. Criticism of or opposition to a state for whatever reason is not evidence of intent to commit a terrorist act under this or any domestic legislation. People can continue to criticise or oppose a state and that is not going to be regarded as intention to commit a terrorist act. As such, these amendments are redundant and potentially not in compliance with the terrorist directive. Also, if we grant that there are legitimate concerns here that a person engaged in activity against an oppressive or tyrannical regime could be convicted under this legislation, which, as I say, I doubt is possible - in fact, I believe it is not possible - the provisions in section 6(6) of the principal Act address such concerns while allowing for the proper transposition of the directive. This provision, as I mentioned earlier, provides that the consent of the Attorney General is required in cases where a person:

...is charged with an offence ... in or outside the State with the intention of ... unduly compelling the government of a state ... to perform or abstain from performing an act, or ... seriously destabilising or destroying the ... political, constitutional, economic or social structures of such a state.

This provision was introduced to address precisely the issue the Senator’s amendments seek to tackle. It affords the only practical way to give effect and be faithful to the directive while at the same time avoiding the possibility that persons acting legitimately against a repressive state would be prosecuted in the courts in a manner repugnant to our values, which is to vest in the Attorney General the same function he or she exercised under the Official Secrets Act. The mechanism chosen in the principal Act, after months of debate in government and the Houses, was to give the Attorney General’s approval the status of a condition precedent to a prosecution going on under this legislation. I believe that is a better approach than the problematic statement that it would be a defence for anybody planning a terrorist act to show that the state against which he or she plotted was in breach of international law. We would not accept that a person accused of planning to set off a bomb in a public place in such a state would have a full defence in law because he or she persuaded the court that that state was in breach of international law. The Attorney General's intervention represents the only plausible solution to this dilemma and, as such, I cannot accept these amendments.

Alice-Mary Higgins (Independent)
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While the scenario the Minister gave is the intention to set off a bomb, which comes into the different question of there being a whole other set of offences there in terms of intent to endanger life and so forth, the scenarios are things like criminal damage to property. Criminal damage to property is the kind of thing such as vandalism, which technically comes under criminal damage to property.Of course, it is our duty in all our laws to protect life and so forth where there is a danger to a population or an intention to cause harm in that sense. However, criminal damage to property is an offence under this Bill where the criminal damage is attached to an attempt to unduly compel "a government or an international organisation to perform or abstain from performing an act". I am not fully assured as to what that actually means. Let us look back to the suffragettes. The suffragettes engaged in direct action protest in an attempt to compel the introduction of the right to vote. We commemorated them all a few years ago and marked that period of time. Is it the case that such activities by the suffragettes can be designated as terrorist activities and then attract penalties? I am not resisting the view that people would have penalties attached where they have damaged property and so forth, but these much more severe penalties are attached to when something is designated as a terrorist activity.

In terms of climate action, for example, this is an area where we have seen the proscribing of climate activity by groups. There has been a very strong push in the United States and elsewhere to criminalise those who are engaging in direct action in relation to the climate. It is a form of protest that comes with penalties and people often do not accept those penalties. Now, however, the penalty is being massively escalated. I am, therefore, concerned. I would like clarification on the criminal damage issue and how that is going to pan out.

With respect to the phrase "in itself", it should be removed. While it may have been in the previous legislation, we are in a climate now where we have seen extremely intense weaponisation of anti-terrorism laws in a number of states, including the UK and US as we have recorded, but it is a measure that has been used in many cases. I still do not know the exact position as regards how we relate to the question of something that is an offence here that is an offence in another country. The Minister said we have these sets of intents, but the intents he is going back to are all in relation to a terrorist offence. I am still not clear on the issue of actions being taken. The Minister said he did not want to make it a defence. I had considered that approach. I was trying to avoid doubt in the defence and, similarly, the Minister described how he had gone back and forth looking at different approaches to how we ensure the effect. I accept his bona fides that it is not his intention that this be used in relation to persons who are acting against repressive regimes or, indeed, illegal occupation, but I see in the Bill the potential for it to be used in such a way.

The thin layer we have of protection is the Attorney General. The Attorney General's advice is not available to Members of the Oireachtas. The Attorney General is only an adviser to Government. Attorneys General may be under a particular Government and under all kind of pressures, but they are effectively responsive to Government. There is, therefore, a danger of there being a lack of transparency in relation to those issues, for example, if there is a situation where there is significant pressure from the United States in relation to a matter or action or set of actions or an organisation or entities the United States wishes to see prosecuted in the terrorism frame. In such circumstances, we will not be privy to how those decisions are being weighed up by the Attorney General and the extent to which political pressure or influence may be being exercised in that weighing up by the Attorney General in respect of his advice to Cabinet because he is giving advice to Government, not us. That is a bit of an opaque solution to a concern, which, as the Minister said, has been legitimately flagged the whole way through this process. As such, I wonder about the "in defence" piece as an approach. I would also like clarification from the Minister on the issue of criminal damage.

It is not the case, as the Minister described, that if we removed the words "of itself", somebody would say they were engaged in protest and, therefore, that they could not be prosecuted. I do not believe that is how the provision would then read. The Bill would state that these are not terrorist offences. While terrorist offences could still be looked at, it would mean that those elements and activities - participation in a strike, protest or advocacy - could not be used as evidence of terrorist activity. Now, the Bill states such activity "of itself" cannot be used, which means it could be part of evidence. It just states they cannot be used. It does not say that a person who does these things is immune from prosecution under the terrorist activities Act. That is not what it says. You can go ahead and use actual evidence of a person engaging in or promoting or inciting terrorist activity rather than saying this person was also on strike or took part in a union protest or did other things, and this builds the case of them having an intent to destabilise. That is why I am concerned about how that provision could be abused. The safer approach would be to remove the phrase "of itself".

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It is instructive to us to look at how the 2005 legislation has operated since it was commenced 20 years ago. Many of the issues the Senator highlighted are contained within the 2005 legislation and we have not seen the types of prosecutions the Senator is concerned about, and that neither she nor I wants to see.

The reason for her removing the words "of itself" must mean that she wants other factors to be permissible in terms of the actions of the person concerned. The whole purpose of section 6(5) is to set out that where people are engaged in "protest, advocacy or dissent, or in any strike, lockout or other industrial action", that type of behaviour is excluded from this legislation. That is the whole purpose of saying it. The reason we limit it to that is by the use of the words "of itself". I see no basis for the removal of the words "of itself" other than that the Senator wants other factors to be considered as not constituting terrorist activity as well.

The Senator also mentioned the issue of criminal damage. Obviously, criminal damage under section 2 of the Criminal Damage Act 1991 covers a range of offences. They can be extremely serious offences, particularly in relation to arson and where there is an intent to endanger life or recklessness as to such endangerment.

The Senator used the example of the suffragettes. Even if the suffragettes were involved today or people in a similar position were advocating an equally noble cause, that does not give them the entitlement, nor does it give them a defence, when it comes to criminal behaviour. I will use the example the Senator is concerned about in terms of, say, states that are a breach of international law. Two obvious states that come to mind are Israel and Russia. If somebody decides in Ireland to burn down a property because it is owned by the Russian Government or the Israeli Government, that is still a criminal offence. People cannot do that. They cannot engage in violence for the purpose of advancing their own political purposes. We have learned that in Ireland for many years now. We do not want to go back to a situation where people think it is permissible or acceptable to use violence or engage in terrorist activity for the purpose of achieving their own objective.

If we look at what the Senator is setting out in amendments Nos. 22, 23 and 24, all of them are unnecessary. It should not be the case that people are entitled to engage in terrorist activity if what they are doing is in opposition to a state that is intimidating a population, is in opposition or opposed to a state that is not complying with international law or the offences are against a country involved in war crimes. We cannot have a situation where people are permitted to engage in terrorist activities because they are against an entity that may have engaged in wrongdoing itself.That is not permissible under our legal system.

I cannot accept the Senator's amendments. I also believe they are unnecessary. If we look at how the legislation has been operated to date in terms of the prosecutions, clearly it has been interpreted and applied in a very cautious and limited fashion. In terms of the new changes that are coming in, which are very similar, I believe they also will be interpreted and applied in a very careful and limited manner. This is not an attempt by the State to generate a whole series of new offences covered by what people are stating publicly or expressing their opinions. As I said to the Senator previously, all of them are protected by the Constitution, the convention and the charter. I cannot accept the amendments.

Alice-Mary Higgins (Independent)
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There has been a quite a strong misrepresentation of my position, which I was actually quite clear on when I spoke. I would like that to be clarified. I did not suggest that people should be free to do whatever they want for these reasons. I was very clear that these are criminal offences, they should be prosecuted as criminal offences and persons who engage in them do so in the knowledge that they are committing a criminal offence that comes with the penalties that apply. I said that on about four occasions in my contribution. It is not the case that this is a get-out card where everything goes.

The question is whether this activity should be interpreted as terrorism. For example, people who have sought to disable a weapon or missile are committing criminal damage and they may be prosecuted for the offence of criminal damage, but the question is whether that should be interpreted as terrorism, which comes with a far greater set of penalties and where the person loses a number of the other protections. We are looking at situations that might ordinarily attract a penalty of one or two years suddenly attracting a penalty of up to ten years. It is about the attribution of terrorist intent, not the Schedule setting out the offences.

I am a little concerned about new offences and I would like clarity around the process. I note the offences in terms of data. It is not clear to me exactly what is meant by the data and information systems offence. I signal that I may come back on Report Stage to the question of how offences are added to the Schedule. It is not around the offences and the Schedule, and I should also signal that the question of the threat to commit is one issue that may require further clarification. The two issues here are the Schedule of offences and then whether they are just offences that can be prosecuted as offences or terrorist offences. That is where the test of the three intentions is applied. Is it the case that we have to say there is an intention to intimidate a population, an intention to force a government to take an action or not take an action, and an intention to destabilise the economic and social structures? Those are the intentions that are leading to these things being interpreted as terroristic.

It is not true and, in fact, it is somewhat disingenuous to say I am saying people should be able to do whatever they want because they have a cause. That is not the case. It is a matter of whether certain causes should be defined as terrorist causes simply because the person wishes to force a state, or they have the intention of trying to compel a state, to take an action or not take an action. I am worried about how that might get interpreted.

Criminal damage can involve very serious things, and that is why it should be prosecuted. It can go all the way from graffiti through to arson. That is why I have not, at any point, argued against the prosecution of the offence of criminal damage. I am arguing against certain things, such as the spraying of graffiti or expressing a desire or demand for a government to take an action, being interpreted potentially as a terrorist intent. That is the issue. It is the intent. I was trying to amend that, which is why I was trying to clarify how it would be interpreted. The Minister came back and said that even if it is an oppressive regime, people still should not be allowed to do terrorist things. If it is an oppressive regime and you are a woman in Afghanistan or somebody supporting the women of Afghanistan, or if it is Iran and someone is graffitiing "Women, Life, Freedom" on a wall, or if you are committing criminal damage against an occupying power, do we believe that is terrorism? We might believe and agree that it is criminal damage but do we believe it is terrorism? Maybe not every form of opposition to a state or every attempt to compel it, even through direct action, should be interpreted as terrorism. That is my concern and it is what the Bill sets up to potentially happen in the case of direct action protests. Will the Minister clarify if he believes that forms of direct action protest that make demands of a state should be labelled as terrorism or should they instead be treated as grounds for criminal prosecution?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Obviously, in order for anything to reach the threshold of terrorist activity, it has to come within the definition of what is terrorist activity. That is set out in section 2 of the Bill, which talks about if it is committed. Let us look at Part 1 of Schedule 2. The Senator highlighted criminal damage. We can see that the rest of the Schedule is focusing on very serious criminal offences and as regards criminal damage, which is what we are talking about, it is clearly considering issues such as arson and where property is seriously damaged. This is not going to happen on foot of minor offences or in terms of non-indictable offences. Even if it did, there are the other three requirements, one of which must be met. These are, first, seriously intimidating a population; second, unduly compelling a government or an international organisation to perform or abstain from performing and act, and it is not credible to suggest that graffiti on a wall suggesting that Israel should get out of the occupied territory is unduly compelling a government to perform an act; and, third, seriously destabilising or destroying the fundamental political constitution, economic or social structures of a state or an international organisation. We can see that the threshold in order for a criminal offence to be elevated into terrorist activity is particularly high, taking into account the definition set out there. I do not envisage any of the issues the Senator referred to. Whereby somebody putting graffiti on a wall, which is technically criminal damage, I do not envisage that person being prosecuted because the sign on the wall says that they want Israel to move out of the occupied territories. That is not going to happen. We need to live in the real world when it comes to the interpretation of this legislation. We have had 20 years of it being interpreted and applied in a very limiting way. There is no reason to think that this interpretation is going to change in the future, and particularly since, to use the Senator's example, criminal damage has been a scheduled offence in the legislation for many years.

Alice-Mary Higgins (Independent)
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Let us not use the graffiti example. Let us use the examples that are in the courts at the moment in the UK and Germany, which relate to damage to a weapons system. If somebody damages a weapons system that is about to be used in violation of international law for the performance of war crimes, they may well be prosecuted because they have damaged property. Should they be labelled as terrorists because they have tried to take action to compel a state not to bomb and not to deliver arms? In the real world those are the two big cases in the news. One of them is the Filton 4 case. Those are the examples, the ones that are happening now.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Is that in Germany?

Alice-Mary Higgins (Independent)
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The cases are in Germany and the UK.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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In different legal systems, with different laws.

Alice-Mary Higgins (Independent)
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Different legal systems, but I am saying, as the Minister described, they are cases of substantial criminal damage that are being done with an intention of compelling a government not to take an action, which is trying to compel governments not to allow arms to be used in a context of genocide. How does that not fit the kind of language the Minister is setting out here? Is there not a risk of that in that regard? I am not asking whether they should be prosecuted or whether these are offences. If they are being labelled and prosecuted as terrorist offences, which they are in the UK and another European state at the moment, that is the concern I have.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I am not concerned about that. I am sorry, I am not going to repeat myself. I do not see that happening.

Maria Byrne (Fine Gael)
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How stands amendment No. 20?

Alice-Mary Higgins (Independent)
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I am pressing it.

Alice-Mary Higgins (Independent)
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I move amendment No. 21:

In page 10, between lines 22 and 23, to insert the following: “(c) the insertion of the following subsection after subsection (5):

“(5A) For the avoidance of doubt, criticism of a state that is breaching international law shall not be constitute grounds for inferring that the person is doing an act with the intention of—

(a) seriously intimidating a population,

(b) unduly compelling a government or an international organisation to perform or abstain from performing an act, or

(c) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a state or an international organisation.”,”.

Alice-Mary Higgins (Independent)
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I move amendment No. 22:

In page 10, between lines 22 and 23, to insert the following: “(c) the insertion of the following subsection after subsection (5):

“(5A) For the avoidance of doubt, opposition to the occupation by a state of a territory without legal basis shall not constitute grounds for inferring that the person is doing an act with the intention of seriously intimidating a population.”,”.

Alice-Mary Higgins (Independent)
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I move amendment No. 23:

In page 10, between lines 22 and 23, to insert the following: “(c) the insertion of the following subsection after subsection (5):

“(5A) For the avoidance of doubt, it shall not be considered intent to unduly compel a government or an international organisation to perform or abstain from performing an act where such performing or abstaining from performing of the act is necessary to comply with international law.”,”.

Alice-Mary Higgins (Independent)
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I move amendment No. 24:

In page 10, between lines 22 and 23, to insert the following: “(c) the insertion of the following subsection after subsection (5):

“(5A) For the avoidance of doubt, it shall not be construed as intent to destabilise the economic structures of a state where such destabilisation would arise from the fact of that state’s breaches of international law.”,”.

Alice-Mary Higgins (Independent)
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I would like clarity from the Minister on what is envisaged. This is a new offence of unlawful interference with information systems or data. I note that it does not specify public information systems or public data. Could that include interference with corporate information systems? It is a little bit vague what is envisaged by that. I may suggest on Report Stage that there would be more of a clear process for when new offences are being added to the schedule.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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We live in a situation where information systems cyberattacks can be imposed upon countries as part of terrorist activities. It is that type of offence that is envisaged here.

Alice-Mary Higgins (Independent)
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I was looking for that, because it did not include language on the public, so it was not clear to me exactly which component this was around in terms of public systems. I would always reiterate that if we are very serious in terms of digital interference in our democracy, we would be more robust in our regulation of major social media platforms which have played quite an active role in anti-democratic activity, but that is by the by. That is fine.

Maria Byrne (Fine Gael)
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When is it proposed to take Report Stage?

Diarmuid Wilson (Fianna Fail)
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Now.

Maria Byrne (Fine Gael)
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Is that agreed? Agreed.

Maria Byrne (Fine Gael)
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When is it proposed to take Final Stage?

Diarmuid Wilson (Fianna Fail)
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Now.

Maria Byrne (Fine Gael)
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Is that agreed? Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I would like to thank Senators for their engagement on this legislation. We have had terrorist offences legislation in place since 2005. This is updating it to take into account the serious terrorist threat that the State can face. Fortunately it is not as significant as previously, but we need to ensure that our laws are up to date and vigilant. The primary purpose of this legislation is to transpose the new directive in respect of terrorist activities. Regrettably, we have seen some appalling terrorist activities in Europe over the past ten or 15 years, with the Bataclan being a prime example of a horrific terrorist attack. We regrettably continue to see it. It is extremely important in this country that we are prepared for any such attacks. Regrettably we have seen one or two of them which are before the courts at present in Ireland, which are categorised or accused of being terrorist acts. It is important that our legislation is robust and well set up in order to respond to such a threat to the State and its citizens. I thank Senators for their contributions and amendments. I welcome the fact that this legislation has gone through both Houses of the Oireachtas. It will now go to the President for her consideration and will be promulgated if the President considers that it should be so signed. I thank everyone in the House for their co-operation.