Pat Casey (Fianna Fail)
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For the information of Members, please note that the House, by agreeing to the motion to recommit, allows for a Committee Stage-style discussion on amendments Nos. 1 to 5, inclusive, 25, 36 to 39, inclusive, 41, 60 to 97, inclusive, and 100 to 104, inclusive, and those amendments only. Members may speak more than once on each of those amendments. In respect of any other amendment, a Senator may only speak once on each amendment on Report Stage, except the proposer of an amendment, who may reply to discussion on that amendment. On Report Stage, each non-Government amendment must have a seconder.

Amendments Nos. 1, 3, 25 and 41 are related and may be discussed together by agreement. Is that agreed? Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Amendment No. 25 inserts a new section into the Bill to amend section 10 of the Misuse of Drugs Act 1984. It inserts new subsections (2) to (6) into section 10 to provide the statutory basis for the admissibility of certificates of results of Garda-administered presumptive drug testing, PDT. It introduces a legal presumption in favour of the evidential value of such certificates, subject to rebuttal evidence. PDT was introduced by Garda circular in 2011 with the agreement of the DPP. It is used to test cannabis, cannabis resin and cocaine seized in relation to the section 3 offence under the Misuse of Drugs Act. Forensic Science Ireland, FSI, provides oversight of the Garda PDT regime and is assured of the reliability of the results of Garda-administered PDT. A number of safeguards are built into the provision, reflecting current operational procedure. Subsection (2) limits the scope of the provision to the section 3 offence. The certificates must be completed by approved members of the Garda who have been certified under subsection (5) by the director of FSI following the completion of FSI-delivered training where they have demonstrated competency in administration of the tests. The PDT test kits used by members of the Garda must be approved by the director of FSI under subsection (4). The definition of "relevant controlled drug" limits the scope of the provision to cannabis, cannabis resin and cocaine. However, under subsection (3) there is a provision for me as Minister, having consulted with the director of FSI, to prescribe other controlled drugs should suitable test kits become available. Subsection (6) provides interpretation for the provision.

The amendment also amends subsection 10(1) of the 1984 Act, consequential on the inclusion in subsection (6) of the definition of "Forensic Science Ireland".

Amendment No. 41 inserts a new section into the Bill to amend section 144 of the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 to allow the director of FSI to delegate his or her functions under the amended section 10 of the 1984 Act to appropriate officers of FSI.

Amendments Nos. 1 and 3 amend the Long Title, consequential to addition of the amendment to the 1984 Act to the Bill and the consequential amendment of the 2014 Act.

Alice-Mary Higgins (Independent)
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In amendment No. 25 and the associated set of amendments, the Minister is looking to expand Garda powers under the Misuse of Drugs Act 1977 by allowing members of An Garda Síochána to undertake examinations and inspections of controlled substances for the purposes, specifically, of section 3 in terms of prosecution for simple possession. Presently those tests can only be undertaken in a controlled laboratory environment by a suitably qualified member of FSI. While there may be an argument for facilitating drug testing at community level from a harm-reduction perspective or a medical perspective, it is equally important to maintain an appropriately high evidentiary threshold when it comes to criminal prosecution.

Earlier this week the Garda Commissioner referred to this. It came up again when my colleague, Senator Ruane, highlighted the issue with section 3. The Minister will be aware of the position taken by the drugs reform committee in respect of this. There has been a concern about section 3 and its operation. The Garda Commissioner has stated the organisation is not supportive of decriminalisation because the priority for the Government is disrupting production, supply and the organised drug market, and that the Garda does not target people for small amounts of drugs. The message has been, "Don't worry about section 3 with its focus on possession because we don't really use section 3 very much and section 3 is not a focus for us." However, in what is being introduced now, the Minister is providing additional powers in respect of prosecution and, arguably, lowering or shifting the bar for a whole other strand of evidence that can be used. It is a wider standard - a lower standard, potentially - in terms of tests administered by the gardaí, in order to make prosecutions under section 3. If you are involved in the production or supply of large amounts of drugs, then the drugs used as evidence against you will be tested by FSI, whereas if you have a small amount of cannabis resin for possession, the standard used to prosecute you is lowered to a test administered by the gardaí. It is a lower bar for evidence in order to prosecute people for simple possession than for those who may be engaged in one of the more significant offences related to production or supply of drugs. I do not see how that gels with the message that we should not be worried about section 3 because that section is never the focus. Section 3 is directly the focus of this legislation and the measures being introduced by the Minister.

Will the Minister clarify why Garda powers to advance prosecutions and create a lower bar in terms of the evidence that can be used for prosecution of simple possession are being expanded when the Garda Commissioner is on the record suggesting - and this messaging has also come through from Government - possession is not the focus? The message has been that we are moving towards a harm-reduction and health-based approach to users of drugs or, in some cases, victims of drugs, rather than those involved in the industry.

The Citizens' Assembly on Drugs Use and the Joint Committee on Drugs Use - this is the citizens' assembly of the public and the cross-party Oireachtas joint committee - have both called for a shift to a comprehensive health-led approach to drug use and for a movement away from criminalisation and prosecution of small-scale possession for personal use as part of that. That is what the public called for and what the Oireachtas joint committee comprising members of all parties has called for, yet we have here a measure from the Minister seeking to escalate and accelerate prosecution. Otherwise, what is the delay? Why not use FSI unless the Minister anticipates such a volume that he will want to move through it quickly? It is hard to see why we would move away from the standard that is there in terms of using FSI for testing. An accelerated testing process is the only rationale I can imagine for wanting to introduce this testing by gardaí and for that testing to be used as evidence. That goes against the tide of what the public is telling us, what the Oireachtas joint committee after a year of detailed scrutiny has called for and what the Commissioner and Government have suggested.What the Minister is looking for is a new tool for the prosecution of section 3. With regard to the detail of the section, it is notable that there are measures to allow FSI and others to certify new kinds of drug tests. The Minister has to consult with FSI but ultimately still has the power to introduce new inspections or tests to be carried out on substances, where he or she is satisfied that it is appropriate to do so. There are powers for new tests to be added but I do not see powers for tests to be removed where it turns out that there are problems with them or where the director of FSI or the Minister points to issues with the quality of those tests. I do not see where tests that are of a poor standard can be removed and no longer used as evidence. Such a mechanism does not seem to be included. That may be a symptom of this being an amendment added in at the last minute.

Again, had this been subject to pre-legislative scrutiny, there would have been an opportunity to hear from scientific experts as to the difference between what FSI will do and what these kinds of tests that might be applied by individual gardaí might be. Others who have much greater expertise than me or others here might have had the opportunity to fully tease out these questions, to talk about them and to provide scientific evidence. When the Oireachtas Joint Committee on Drugs Use was given the mandate and authority to examine these issues in detail, it came out in favour of a health-led approach and a move away from a prosecutorial, criminal-based approach in relation to section 3. Those who had the opportunity to examine these issues gave a message that is directly contrary to the Minister's amendment. The Minister's amendment has never benefited from proper committee scrutiny with the benefit of expert witnesses. That is why I will not be able to support it.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Senator Higgins for her contribution. At the outset, I will identify the purpose of the amendment I am proposing on Report Stage. It is to facilitate, to speed up and to make more efficient prosecutions within our courts. For instance, if there is a prosecution relating to 10 g of cocaine, an issue to be determined by the court is whether the substance that is alleged to be cocaine is in fact cocaine or whether it is simply sugar or flour. For the purposes of that prosecution, it is obviously essential that there is objective evidence in respect of the substance to confirm whether it is a controlled drug under section 3 of the Misuse of Drugs Act. There are a number of ways of doing that. At present, An Garda Síochána operates presumptive drug testing, supervised by Forensic Science Ireland. This is effective and reliable. It is used in some District Court and Circuit Court proceedings at present. However, the Judiciary in some courts says that there is no statutory basis for the presumptive drug tests carried out by An Garda Síochána to be accorded the status of evidence within the prosecution of an offence. It is for that reason and that reason alone that this provision is being introduced. It will provide statutory recognition that the presumptive drug testing carried out by An Garda Síochána can be relied upon for the purposes of prosecution. Like all evidence advanced by the prosecution, it will be possible to rebut this evidence and it will be open to challenge by the accused. The reason this is advantageous is that it will free up a lot of time for Forensic Science Ireland with regard to prosecutions taking place under section 3 of the Misuse of Drugs Act. There is a benefit to recognising in statute the fact that presumptive drug testing by An Garda Síochána is acceptable in those types of prosecutions. That is the purpose of the statutory provision I am seeking to introduce here this afternoon.

Senator Higgins went on to discuss a related issue and asked why I am facilitating prosecutions under section 3 if it is the case that there is a consensus that we are now going to go with the recommendations of the Oireachtas Joint Committee on Drugs Use and no longer criminalise drugs under section 3 of the Misuse of Drugs Act. Last night, I had the opportunity to discuss the joint committee's report with the committee's Chairman, Deputy Gannon, in the Dáil when answering questions to the Minister for justice. I started by stating that I welcome the work that has been done by the committee. It made 161 recommendations. I agree with the vast majority of them. However, the issue that has got a lot of attention and the issue Deputy Gannon wanted my view on is what he described as the "central recommendation" of the Oireachtas committee, the decriminalisation of all drugs, that is, not just cannabis and cocaine but also heroin and synthetic drugs. Deputy Gannon has said this was the central recommendation of the Oireachtas committee. I indicated to the Deputy that, notwithstanding the great respect I have for the committee and the work that has been done, I do not agree with that.

In her speech, the Senator has said that the public is telling us that the use of drugs should be decriminalised under section 3 of the Misuse of Drugs Act. These Houses are the public. It is the Dáil and the Seanad that determine what the law in this country should be. It is for that reason that we legitimately refer to ourselves as the elected representatives of the Irish people. We could have a lengthy debate here. I realise it is a legitimate policy position for people such as Senator Higgins, Senator Ruane or Deputy Gannon to put forward that we should decriminalise all drugs. That is not the----

Alice-Mary Higgins (Independent)
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If I may make a point for accuracy, this is the second time the Minister has stated that. I was going to wait but, because the Minister has said this a second time, I will clarify that the recommendation was to decriminalise the possession of drugs for personal use. It is inaccurate for the Minister to say that the committee recommended the decriminalisation of all of these drugs, as he has now said for a second time. It is very important to be clear and accurate in respect of the committee's recommendations.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I am happy to accept that point. I thought that was clearly the point I was making. However, as I said to Deputy Gannon last night, the reason I am opposed to this recommendation is the same reason that British Columbia, which introduced decriminalisation of drugs for personal use in 2021, and Oregon, which introduced it in 2020, are now reversing those measures. The reason these jurisdictions are now reversing those measures relates to a point the Oireachtas committee made in its report, which is that one of the consequences of decriminalising drugs for personal use is that you will see wider use of drugs in public places. In fairness to the Oireachtas committee, it said that. The report goes on to say that, in order to deal with that, local authorities need to play a role. However, as I mentioned last night, the effect of that policy would be that you would see more drug-taking in public. I have a responsibility not only to the people who are taking drugs, but also to the majority of the population who do not take drugs, particularly children. If it was the case that the law the Senator is advocating was introduced and if there were people taking heroin outside a school or snorting cocaine in a public park, there would be nothing gardaí could do about it. You could not go up to a person, tell them to move on and ask them not to take heroin outside of a primary school. There would be nothing gardaí could do. I have respect for what the Oireachtas committee has said but I did not want to fool Deputy Gannon or Senator Higgins as to my views, which are the views I expressed last night and that I am now expressing here. I am conscious that there is a much bigger debate to be had about the decriminalisation of drugs. I have no doubt that debate will be held in this House and the other House.

To return to the amendment, there is nothing in it that is inconsistent with the recommendation of the Oireachtas committee report, even if I did support it. This amendment seeks to give statutory recognition to the Garda presumptive drug testing that goes on at present and that operates in courts. If it is put on a statutory basis, the system will become more efficient.Ultimately, while many people do plead guilty, if people are not pleading guilty, there needs to be some mechanism to determine what, in fact, the substance is.

Alice-Mary Higgins (Independent)
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With respect, we are not debating a legislative proposal or changes in the legislation that may have been put forward by the committee after considerable consideration. What we are debating is the legislative proposal the Minister is putting forward. We are pointing out that it is moving in the opposite direction. The Minister gave his opinion in relation to decriminalisation. That is not what we are voting on here. What we are voting on is further criminalisation.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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We are not.

Alice-Mary Higgins (Independent)
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Yes, we are. We are moving to a situation in respect of presumptive drug testing, which may have taken place and may not have had an evidentiary basis in courts, but may have had a health purpose. As regards that purpose, it is not simply that it is said it is a free-for-all and anything can be done. We can debate whether decriminalisation for possession, etc., will be part of it but what there has been is a very clear call for a health-led approach. We are now moving towards a situation whereby there will be greater apprehension about engaging with the Garda in terms of drug testing, even, potentially, for those who may have been drugged, because there is a question as regards possession if you are wondering and wanting to know. There is possession and there are issues and questions. There have been health-testing measures in the past where people were able to check and know what substances might be illegal. With all of those health-led measures, there is the creation of a further bar against the use. That is why, in my opening commentary, I said there is not necessarily opposition to community-based drugs testing on a presumptive basis because it can play a role in health-led interventions and a health-led approach to supporting people to move away from drug use. However, what the Minister is talking about is that the tests administered by gardaí would now become evidence. The language the Minister used was that this was to facilitate and speed up prosecutions.

The Minister said there must be a system. There is currently a system. The current system is that Forensic Science Ireland does the test. That is the bar that applies on personal possession and to a find of a supply worth €100,000. Forensic Science Ireland is mandated to do this. It has the expertise and conducts the test. What the Minister is now saying is that those who are apprehended for possession can be prosecuted on the basis of a Garda test, whereas those prosecuted for other offences will still be going through Forensic Science Ireland. That is a disjoin. The Garda presumptive testing can be used as evidence of possession and Forensic Science Ireland's testing can only be used in relation to a more serious drug offence.

It is not a case of saying there must be some system. There is a system. The Minister is trying to introduce a new, wider system and, to use his own language, it is to facilitate and speed up prosecutions for possession. That points to a signal not only that the Minister believes there is merit in retaining the offence under section 3, but that there is a desire to accelerate and increase prosecutions under it and freeze up a lot of time for Forensic Science Ireland. The message, we were told, is that we do not do an awful lot of prosecutions. Is Forensic Science Ireland so under-resourced that it cannot deal with that? Would it perhaps be a good approach to give an extra staff member to Forensic Science Ireland if the volume of prosecutions under section 3 is so huge? There are other approaches if the Minister is concerned about the capacity of Forensic Science Ireland, one of which is to increase its capacity.

The point is the Minister is introducing a new form of evidence that applies only to one form of drug offence and it happens to be the form of drug offence where there are concerns that its overuse has made it more difficult for a health-led approach to drug use. Many of us would want to see such an approach introduced so that people are facilitated to move away from drug use.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The Government supports a health-led approach. A health-led approach, however, does not necessarily mean that there has to be decriminalisation of drugs for personal use. A lot of work is being done, along with my colleagues in the Department of Health, to ensure that health-led approach is central to how the State responds to the scourge of addiction. At the same time, we need to ensure that we have laws in place.

On section 3, I know there are other provisions to deal with the issue. However, we need to recognise that there are organised drugs gangs that are seeking to prey on people's vulnerabilities and addictions and that is something that cannot be omitted.

The fact of the matter is that in most cases involving drugs, there is a recognition that the drugs are cannabis, cocaine or heroin. What this is doing is it is giving statutory recognition to presumptive drug testing and if it is the case that somebody wants to challenge it, they can say they do not accept that presumption. The contrary can be proven. That is in the legislation as well. It is not as though, as a result of the certificate, it necessarily then becomes proven completely that that is the drug. If somebody disputes it and says the substance is not cocaine but flour, obviously that will still be established in the court.

Alice-Mary Higgins (Independent)
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The Minister has not answered my question. Why is this being done solely in relation to section 3? I ask him to confirm that it is the case currently that there can be and are prosecutions under section 3 using the existing system with Forensic Science Ireland. The Minister may confirm that a mechanism for prosecution already exists.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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There is.

Alice-Mary Higgins (Independent)
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The Minister might clarify why, specifically and solely in relation to this offence, he is looking to introduce this new evidentiary measure.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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It is because this offence is prosecuted and presumptive drug testing done by An Garda Síochána is used for these prosecutions. Some District Courts accept it, others do not and it is seen to be more appropriate that it is put on a legislative basis. That is why it is there in respect of section 3. I will look in due course to see whether it can or needs to be extended to other provisions within the Misuse of Drugs Acts, but that is the reason it is being used.

Alice-Mary Higgins (Independent)
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I will conclude by noting that it is interesting the Minister is prioritising the use of this new measure for prosecutions for simple possession. It does not speak well to the health-led approach. I have been clear that I will be opposing the amendment.

Laura Harmon (Labour)
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I want to speak briefly on this topic to put my thoughts on it on record. I have concerns about the increase in the number of criminal convictions we may see of people who will have drugs on them for personal use. I echo the comments of Senator Higgins in relation to the health-led approach. We need to take into account that many people have repeated convictions for drug use because they are stuck in a cycle of addiction. That is not of their own choice. If we are to repeatedly convict them, that will not contribute to a health-led approach to this issue. We need to be mindful of that. I have serious concerns about this measure as regards testing.

I acknowledge the point the Minister made in relation to drug use in public places. As part of the broader debate, I will put my thoughts on injection centres on record. We have the injection centre in Merchants Quay in Dublin. We need to see that replicated in other areas, such as Cork. These are places where drug use can happen in a safe environment. For example, alcohol is one of the most dangerous drugs in the world. We have places for the use of that. We need to look at how we deal with alcohol. For example, if somebody is obviously disorderly in public, they can be convicted. Is there an element of that when we are speaking about drug use?

I wanted to speak broadly on the health-led approach. We need to have a broader debate on that in the Oireachtas.The Joint Committee on Drugs Use has done great work in relation to this. The Minister referenced British Columbia and Oregon in relation to these issues. I do not know if we have seen how the evidence there would apply to Ireland. There needs to be further debate on that. I know that is outside the scope of what we are discussing for this particular piece.

Pat Casey (Fianna Fail)
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Pursuant to Standing Order 165, it is reported to the Senate that the Long Title has been amended.

Pat Casey (Fianna Fail)
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Amendments Nos. 2 and 36 to 39, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Amendments Nos. 2 and 36 to 39, inclusive, are amendments relating to character evidence which were put forward by Deputy Carthy on Committee Stage in the Dáil and which I said I would consider. I did not accept them on Committee Stage. I considered them and I accepted them on Report Stage. What happened on Report Stage is we have inserted, through Deputy Carthy's amendment, a new section into the Criminal Justice Act 1993 to provide that where a person is convicted of an indictable offence, character evidence for sentencing purposes must be given on oath or by affidavit. That amendment was included as section 23 of the Bill.

The purpose of amendments Nos. 36 to 38, inclusive, is to address a number of drafting and consequential matters identified arising from section 23. Amendment No. 36 deletes the existing section 23, with amendment No. 38 inserting in its place a new stand-alone provision of the Bill, which is substantively the same, but is more precisely drafted and contains a transitional provision. As it applies to all indictable offences, amendment No. 38 has the effect of superseding Chapter 3 of Part 2 of the sexual offences Act, which provides that character evidence for sentencing in indictable sexual offences shall be on oath or by affidavit. Amendment No. 37 therefore repeals that provision in order to prevent duplication on the Statute Book and to avoid confusion in practice.

I will now turn to the amendment of the public order Act. Amendment No. 39 inserts a new part into the Bill to amend the 1994 Act in order to address a specific public order issue, which is the deliberate use of face coverings for intimidatory purposes in public places, and particularly at protests. I stress that this is not a ban on face coverings or a ban on wearing face coverings at protests, and neither does it create a general power for members of An Garda to require a person wearing a face covering in public to remove it. Instead, it is a limited addition to the public order framework, which may be exercised only in specific circumstances and with statutory safeguards. The amendment provides that where a member of An Garda suspects, with reasonable cause, that a person is acting in circumstances that give rise to a reasonable apprehension for public safety or the maintenance of public peace, and that the person is wearing a face covering with the intention of intimidating another person or in a manner likely to intimidate another person, the garda may direct that person to desist from that conduct, remove the face covering and leave the vicinity.

Only where a person without lawful authority or reasonable excuse fails to comply with that lawful Garda direction does an offence arise. It is a very high statutory threshold. A garda must suspect that both statutory conditions are satisfied before any direction may be given. The requirement for reasonable cause is an established safeguard in criminal law, requiring objectively justifiable grounds that are capable of judicial scrutiny. The amendment deliberately does not confer statutory power on An Garda Síochána to forcibly remove a face covering. I concluded that a more appropriate and proportionate approach was to rely upon the established model of a lawful Garda direction, with an offence arising only where a person without lawful authority or reasonable excuse fails to comply. The 1994 Act already contains provisions under which gardaí may issue lawful directions in defined public order situations. This amendment follows that established legislative approach rather than creating a fundamentally new policing model.

I fully recognise that many people wear face coverings for entirely legitimate reasons. They may do so for medical reasons, religious observance or cultural practice or simply as a matter of personal choice. I am also aware that at protests people may want to wear face coverings to hide their identity, if they did not want, for instance, their employer to know that they were at a particular protest. Nothing in this amendment changes that position. The mere wearing of a face covering does not in any way trigger the exercise of this power. It only arises when it is being worn for the purpose of seeking to intimidate another person.

I also recognise the constitutional importance of the rights to freedom of expression and peaceful assembly. Those rights are fundamental and nothing in the amendment interferes with that. Obviously, those constitutional rights must be exercised in a manner which respects the rights of others and the maintenance of public order. Where a face covering has been worn as part of intimidating conduct, in circumstances that threaten public peace or public safety, An Garda should have a clear statutory power to intervene before matters escalate further. Sometimes even Members of the Oireachtas can find themselves being intimidated by people who are wearing face coverings. In such circumstances, we should not say that the law has no remedy against that intimidation. The remedy I am proposing is that the gardaí should be able to direct the person to remove the face covering. If they do not remove it, that is an offence. It gives no power to An Garda to start forcibly removing it.

Amendment No. 2 amends the Long Title, consequential on these amendments. There are two amendments in this group, the first of which is Deputy Carthy's amendment that I was happy to accept. It will now mean that not just in the cases of serious sexual offences will character evidence have to be given on affidavit or in person; it will now apply to all indictable convictions. Second is the amendment to the public order legislation, which I believe is necessary. I want Senators to be aware that it is limited to the circumstances where a face covering is being worn for the purpose of intimidating others.

Maria McCormack (Sinn Fein)
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I spoke on this already but I welcome the Government's acceptance of the amendment put forward by our justice spokesperson, Deputy Matt Carthy. It is an important amendment. It is an important reform that will strengthen fairness and accountability in the courts. That is what is really important here. As the Minister said, this amendment requires character references for all indictable offences to be given under oath or by affidavit. It extends protections that previously applied only in sexual offence cases. I am delighted. I hope that this can be a trend going forward that we can look for justice reform that comes from the Opposition in the best interest of the public.

Alice-Mary Higgins (Independent)
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The indictable offences issue is constructive. It was good to see the accepting of amendments from the Opposition in that regard. I acknowledge that the Minister has engaged constructively with the Opposition in relation to proposals in both Houses in the past. However, it is not the case that these new proposals in respect of face coverings are only in situations where face coverings are worn for the purpose of intimidation. That is not what the legislation states. The legislation states "with intent to intimidate another person", or "in a manner that is likely to intimidate another person". There is no proof of intent in relation to this. There is simply the interpretation that a member of An Garda Síochána may make that a person wearing a face covering is something that could intimidate a person. That is the standard.

To be very clear, gardaí already have significant powers under the Criminal Justice (Public Order) Act 1994 to address threatening, intimidating or violent behaviour, as they should. I know there have been instances where intimidating behaviour should have been dealt with earlier in some cases. I can point to examples. They already have powers. If intimidation is taking place, if there is intimidating or violent behaviour or there are threats, the powers are already there for prosecution under the Criminal Justice (Public Order) Act. What has been added here is a new offence of not removing a face mask when a garda tells a person to remove it because they believe it could intimidate another person.It does not even have to intimidate a person; it just has to be considered likely to intimidate a person. That is the standard that is there. This comes in the context of wide powers in respect of facial recognition being introduced for biometric analysis, which we have discussed, and separate from the biometric identification which will only be in the case of the named individuals, of course. That is not, of course, what the EU directive says, but what the Minister has decided to narrow biometric identification to. In terms of biometric analysis, there will be the use, tracking and identification of individuals as the same individual from camera to camera. That is what we have discussed at length previously. It is happening in that context and there is not a proper recognition.

I am holding aloft one of my masks. I wore this mask for two years and took part in protests.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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And you still can.

Alice-Mary Higgins (Independent)
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But can I? I wore this for two years and took part in protests. If a garda decides that I am wearing a face mask in a manner that is likely to intimidate another person, I can be required to remove it. That is not a power that previously existed. What if a person who is medically compromised wears his or her mask while on a protest? People who were medically compromised participated in the protests and protested about their rights and concerns in respect of Covid and took suitable care. What if somebody, as part of his or her religious belief, wears a mask?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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You still can.

Alice-Mary Higgins (Independent)
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No. There is no protection in this in respect of circumstances where a mask is worn on medical grounds or for religious purposes. That is not in the Bill. The Minister is just telling us it will not get used for that. There is no carve-out for those circumstances. There is no carve-out for those who may be protesting. I have been to protests. I have seen protests where persons are very concerned about the safety of their families. I refer to those who were protesting, for example, about the situation in Afghanistan. They are very keen not to be recognised because they are conscious of the vulnerability of their family members who may still be in that country but they want to convey a message. Perhaps they send that message loudly. Maybe they are shouting or blocking a public road or something and, rather than prosecuting, if a garda believes they are intimidating, they can now be asked to remove their mask or facial covering because a garda decides that the fact the person is wearing that covering could intimidate another person. That means that some persons, including medically vulnerable persons, persons who belong to a religious minority and persons who may have particular exposures, could suddenly find themselves with an offence against them.

I ask the Minster to bear in mind that these are not people who are engaging in intimidation. If they were engaging in intimidation, the Garda already has an offence under which to prosecute them, namely, for engaging in intimidating behaviour. This relates to being likely to intimidate a person. What we know about how these kinds of things get interpreted, and have been interpreted in other countries, is that often there is racial or religious profiling. We have all seen the videos where somebody on a plane says there is a Muslim on the plane and he or she does not feel safe. We have seen situations where people have been asked to leave because another person finds them unnerving or potentially intimidating.

Again, the bar now is not intimidation. The bar that the Minister is introducing is an opinion that the face covering is likely to intimidate another person. The Minister will say that, yes, it is where a person engages in such activities. Let us consider the activities. The amendment states: "without lawful authority or reasonable excuse, acting in a manner which consists of loitering in a public place in circumstances, which may include the company of other persons, that give rise to a reasonable apprehension for the safety of persons or the safety of property or for the maintenance of public peace". Again, if a person is participating, we have seen where far-right protests, directly designed to intimidate, have often not been in fact responded to. If a person is in one of the counter-protests, however, and protesting in respect of the rights of migrants and refugees, or is wearing a face covering for religious reasons, he or might be asked to remove the mask. The reference to it being for the reasons of public peace, does not mean that individual in question is the active disturber of the public peace. It is the fact that the person being there may provoke others to take violent or aggressive action, and that is considered as a risk to the public peace. There is a huge set of circumstances here.

My point is that the Minister already has the public order Act. He already has tools. There are already tools which can and should be used appropriately in respect of situations of intimidating behaviour. This is something extra. It comes alongside a whole new set of provisions in respect of the use of facial recognition technologies but without any protective measures, in this law put forward, in respect of religious observance, a medical condition or, indeed, personal safety. The Minister mentioned carve-outs and said, "I recognise this and I recognise that." The law does not recognise them. It does not even recognise them as a defence, if a person was later to be prosecuted for an offence as a result of failing to remove a facial covering when told to do so by a garda and the person might have not done it for those very good reasons. That is not even recognised as a defence in this piece. There is simply no protection for those vulnerable groups under the law being introduced by the Minister. There is also a huge new vulnerability which, again, is compounded by the unknown implications of facial recognition technologies and their more widespread use under other legislation put forward by the Minister.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Senator Higgins for her contribution. At the outset can I say that when it comes to the extension of a public order offence or, indeed, any offence, one of the things I must do, and indeed all legislators must do, is, on the one hand look at the position, as Senator Higgins has, of the alleged perpetrator - the person who may end up being prosecuted for this new offence. That certainly has to be taken into account. Similarly, I as Minister in particular, have to take into account a person who is affected at present by the fact that there is no such provision in our legal system.

I refer Senator Higgins to the protest that happened in Northern Ireland a number of weeks ago where racial minorities were targeted by mobs of people who went around wearing masks on their faces to disguise their identity. They were in the business of intimidating people because of their race. It was reprehensible activity. If something is happening in Northern Ireland, it does not mean that it will not happen here. There is a prospect that it could happen. Whether it is intimidation from the far right, as was in the case of Northern Ireland, or intimidation from the far left is irrelevant. We need to recognise, regrettably, that there are people who will use face coverings for the purposes of trying to intimidate people and, as is required in this legislation, would "give rise to a reasonable apprehension" on the part of a garda that the "safety of persons or the safety of property or ... the maintenance of public peace" is compromised.

Senator Higgins mentioned a number of reasons people wear face coverings. As I said at the outset, of course people will still be entitled to wear face coverings. I do not need to put that in this legislation. There is not a provision in legislation which says what is permissible. All we do in legislation which prescribes criminal offences is set out the behaviour that is not permissible. It is clearly the case that anyone who wishes to wear a face covering for health reasons, religious observances or privacy reasons or, as I said to the Senator, because they are at a protest and they do not want their employer to know that they are at a protest, will be able to continue.As I repeatedly say, when the courts come to interpret this provision, and it will be the court interpreting it, it will be the words that we have decided to put into the statutory provision that will be the sole mechanism of the courts in determining and interpreting the statute. In the first instance, there has to be a "reasonable apprehension for the safety of persons or the safety of property or for the maintenance of public peace". That has to be there as a sine qua non. There must also be the following. The person must be "wearing the face covering on his or her face ... with intent to intimidate another person, ... or in a manner that is likely to intimidate another person".

I do not see the types of issues the Senator has with this because of the language here. I will explain the reason the wording, "in a manner that is likely to intimidate another person", is there. If that provision was in existence in Northern Ireland, it might have been possible to say, in terms of when people went out on their race riots, that they acted with "intent to intimidate another person, or ... in a manner that is likely to intimidate another person". I believe both those aspects would be necessary to cover the type of racial intimidation operating then.

If people want to wear a face covering for health reasons, then they can, of course, continue to wear it because they are intimidating nobody. If people want to wear a face covering for religious observance reasons, then, of course, they are permitted to wear it because they are intimidating nobody. If people want to wear a face covering at a protest, because they do not want to be identified, they can, of course, still wear it. In fact, people can wear a face covering in any situation they want to, but if they are wearing a face covering and there is a "reasonable apprehension for the safety of persons or the safety of property or for the maintenance of public peace", and the face covering is being worn with the "intent to intimidate another person, or in a manner that is likely to intimidate another person", that triggers the offence.

One of the issues Senator Higgins raised with me was why I did not put into the legislation that it shall not be a criminal offence for somebody to wear a face covering for religious observance reasons, health reasons or to disguise their identity for legitimate reasons to do with their employment. I do not need to do that. If we start going into that type of statutory drafting, we will then have to cover every possible situation. We are not going to set out in law all the types of behaviour which are lawful. That is not the purpose of the criminal law. We proscribe the behaviour that is unlawful, and that is what this provision does. I think it does it in a responsible way. Coming back to the point I started with, I commend Senator Higgins on taking into consideration the position of the alleged perpetrator who may be subject to prosecution, if the legislation is enacted, but I also have to take into account those people who are affected, the people who may be intimidated and the people who are intimidated by people wearing face coverings. I cannot ignore them.

Michael McDowell (Independent)
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I was listening to the discussion on this amendment and I must say that there was an air of unreality to it in my view. Yes, Muslim women who wear particular face coverings are one category of society. So too, though, are people who congregate outside a Muslim person’s house wearing face coverings in a manner threatening to that Muslim family. One only has to look, and this is what struck me, to what the Ku Klux Klan did in America. I do not think they were concerned about their health, their religious beliefs or any of those things. They wear those face coverings solely to intimidate and to frighten people who they intend to exclude or whose rights they intend to trample on.

The point I would make in favour of this amendment is, first, that a direction by a member of An Garda Síochána must be based on reasonable cause. In the absence of reasonable cause, any prosecution will fail. Second, we are faced with a situation where a person wearing the face covering should not have lawful authority for doing so or a reasonable excuse for doing so. Those are two things that I think will be very protective of people who want to simply remain anonymous on some occasion.

There is a fine line between 50 residents of Ranelagh standing outside a black person’s house with face coverings, on the one hand, and a mixed group of people standing outside a large employer’s premises protesting about something the large employer is supposed to have done, and seeking to remain anonymous. There is a fine line between the two situations. There is also the ingredient that there must also be a reasonable apprehension that the purpose of this behaviour is going to prejudice the safety of persons or the safety of property or the maintenance of public peace. I am on the Minister’s side in relation to this matter. I do not think that anybody who has religious or health grounds has anything to worry about in relation to this matter. I do not think that people who want to maintain their anonymity and who are otherwise not behaving in a manner that is threatening the safety of others or the safety of property or the maintenance of public peace will have their rights intruded on either.

Although I presume that a garda can arrest somebody who does not comply with the direction, I do not know what happens when you arrive in the police station wearing your Ku Klux Klan hat, or hood, but there would have to be a removal of it at some stage to identify the person. I think that this measure is reasonable. I strongly think that people are missing the point, which is that if you are on the receiving end of mob violence or the threat of mob violence or intimidation from continuing to occupy your home or your residence by effectively a mass picket outside your house, as happened in Belfast, one of the things the Garda should be in a position to do is to be able to deal with people who do not appear to have a lawful excuse or reason for wearing face coverings and are behaving in a manner which gives rise to a reasonable apprehension for the safety of other persons. The gardaí should not simply be required to stand there, watch all these people and do nothing about it and not interfere in any way. That is my view about the matter.

Sharon Keogan (Independent)
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I also support the Minister with this amendment. From my perspective, and I hear what Senator Higgins has outlined, anyone involved in antisocial behaviour where they are covering their faces needs to be dealt with. In my town of Duleek over recent weeks, many of the residents in our housing estates have been inundated with young gurriers on scramblers going around, with balaclavas on them, ripping up their parks and recreational spaces. It has to stop. These are all teenagers. They are probably from the age of 13 upwards, so I support the Minister 100% on this amendment. I also sympathise with Senator Higgins’s point, but, really, if people are not planning to break the law in any capacity at all, which is a totally different context, this amendment does not apply. This is to do with people acting inappropriately in public. They should be dealt with swiftly.

Alice-Mary Higgins (Independent)
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In terms of acting in relation to mob intimidation, I do think there could be much stronger measures. I think use should have been made of the public order Act when there was intimidation of asylum seekers in our city centre, in Sandwith Street and in Lower Mount Street.I look at the long-running attitude of seeing how things will play out in response to the intimidation of asylum-seekers. For far too long there was tolerance of extreme intimidation and threat. There was accommodation of the checking of buses by persons who were effectively vigilantes. That is not okay. We could be doing an awful lot more. We do not need to just look to Belfast. We also need to be much more careful about the dog whistles. I am not going to go into that now but I have heard them come through in subtle ways. There are references to demographic challenges and all the rest. These give a sense of vindication to those who seek to intimidate portions of the population. We should also look to some of the facts we see on the ground, namely, that there is racial profiling and unequal treatment on racial and ethnic bases in policing internationally that have been shown again and again. We went through them when we debated the facial recognition technologies that are going to be introduced and which have been shown to have far lower accuracy rates in these cases. There are issues with this. It is not defending the potential perpetrator, which almost presumes guilt. It is looking to that right to privacy. The Minister will be aware the Irish Human Rights and Equality Commission raised concerns about the rights to privacy and protest, as has the ICCL. It is not that you are allowed wear a mask because you have a health condition or are from a religious group. It is that you are allowed to wear a mask and be part of a protest-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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You are.

Alice-Mary Higgins (Independent)
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-----but that there is a particular vulnerability and there are persons for whom the application of this law will have a more negative impact.

I wish to address two factual things. If we had had this properly teased out maybe we could have resolved this. There may be forms of words that would have addressed it but as the Minister said there are not carve-outs or defences and that language Senator McDowell used of a "reasonable excuse" does not apply to the wearing of a face covering. The "reasonable excuse" applies to acting in a manner that gives rise to "reasonable apprehension". If there had been "reasonable excuse" clauses added in respect of the facial covering persons would be able to say they had a reasonable excuse for the face covering. That would not even have required the kind of explicit listing I was suggesting of categories which should be recognised.

Again, the bar is not the question of the intent to intimidate. If the Ku Klux Klan are standing outside your house or a bunch of people wearing masks are shouting "Immigrants out", or any other message, they are intimidating and they may be wearing masks with intent to intimidate but the bar here is "in a manner that is likely to intimidate another person". That is a bar that crosses the line to diminish privacy and the proper right to protest. Let us say there is an executive in a company and there is a big protest outside and everybody is shouting about, say, supplying minerals that allow the production of bombs. We know those example in Ireland right now. The executive says they are very intimidated or a garda says they believe this person may be intimidated by the fact there are persons outside who are shouting in protest and who could intimidate another person. Any other person could include a person who is legitimately being protested at, which is not intimidation of them because that would be covered under the proposed section 8C(b)(i). They are there not with the intent to intimidate but simply in a manner that a person could find intimidating and that is a very different thing. The Minister talked about the balancing of the powers and verbally recognised the things he is balancing but the section as introduced does not succeed in balancing those concerns. Again, it points to how it is a pity it is being introduced at this late Stage. There should have been better clarity about the "reasonable excuse". Maybe the paragraphs (i) and (ii) of the proposed section 8C(b) could have been looked at but I am not going to have the opportunity to try to amend the Minister's amendment because he has introduced it on Report Stage. If he had done so on Committee Stage then we would have a Report Stage debate in which I could come back and look for the nuance. I could suggest different wording. Maybe "reasonable excuse" should be applied to the wearing of the face mask as well. Maybe it should be in relation to intent to intimidate but not in relation to an interpretative "manner that is likely to intimidate". Maybe the balance could be got better in terms of those constitutional rights on protest on privacy, with of course the duty to protect and preserve public safety and the public. However, we will not get the chance to tweak this because of the manner in which the Minister has chosen to introduce it. That is part of the problem. That is why it is not as blunt as some people thinking everything goes and some people thinking we need to do something. It is not just what the Minister is doing but the way it is being done that is problematic and that is why I cannot support this amendment.

Maria Byrne (Fine Gael)
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Does the Minister want to respond?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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No.

Maria Byrne (Fine Gael)
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Pursuant to Standing Order 165 it is reported to the Seanad that the Long Title of the Bill has been amended.

Maria Byrne (Fine Gael)
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Pursuant to Standing Order 165 it is reported to the Seanad that the Long Title of the Bill has been amended.

Amendment Nos. 4, 60 to 97, inclusive, and 102 to 104, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I will briefly deal first with amendments Nos. 60 to 62, inclusive. They comprise a new Part 17 that concerns electronic technology in certain proceedings. Amendment No. 60 inserts a new section into the Bill to define the types of proceedings in question, including criminal proceedings and relevant proceedings under various international co-operation enactments. Amendments Nos. 61 and 62 insert new sections into the Bill to provide, respectively, that court rules may, in relation to such proceedings, make provision for the electronic transmission in documents in such proceedings and for electronic statements of truth in lieu of sworn declarations. These amendments are modelled on equivalent legislation that is already in place in civil proceedings. They have the potential to generate substantial time and cost savings and other efficiencies for court users generally but also for agencies such as the Prison Service or the Garda which at present must spend considerable amounts of time getting affidavits and declarations sworn and delivering documents to and collecting them from the courts. These may include charge sheets, bench warrants and committal warrants. Under these amendments it will be possible for such documents to be generated electronically and transmitted between the courts and other agencies in real time, thereby obviating the need for costly and time-consuming manual transmission, delivery, collection of documents and retranscription of data. This will have significant benefits also for data accuracy and security. These amendments will make our courts system much more efficient and will ensure gardaí and prison officers do not need to spend an inordinate amount of time generating documents and will now be able to transmit them electronically.

Amendments Nos. 63 to 97, inclusive, and Nos. 102 to 104, inclusive, make up the vast bulk of the Report Stage amendments. They relate to passenger name record data. I am proposing to insert a new Part 18 into the Bill. Passenger name record data, PNR, consists of booking information provided by passengers that is collected by airlines. It is used widely as a law-enforcement tool. There is a directive from 2016 which Ireland opted into to which we are bound. That established a regime that mandated the transfer of PNR data by airlines to national passenger information units.They are the State agencies for which the acronym "PIUs" is sometimes used. The transferred PNR data is then compared by PIUs against watch lists, databases and other criteria before take-off and landing to detect suspicious travel patterns and identify serious criminals and terrorists. Where identification occurs, the related PNR data is referred on to the appropriate law enforcement authorities for further examination.

Ireland transposed the PNR directive in 2018 through the EU PNR data regulations, whereby a PIU was established in the Department of justice. The regulations apply the regime only to what are referred to as non-EU flights or extra-EU flights, as required by the directive. They are flights between Ireland and countries outside the EU. The directive allows member states, as an option, to apply the directive to intra-EU flights. Ireland is the only member state bound by the directive that does not yet apply its PNR regime to intra-EU flights. The purpose of these amendments is to put it on a statutory basis in the first instance. Previously, it was dealt with through secondary legislation, that is, statutory instrument. The second purpose is to apply the PNR regime to internal EU flights. This will plug a significant gap in our security infrastructure.

Amendments Nos. 63 to 67, inclusive, insert Chapter 1 of Part 18. These are standard legislative proceedings. They refer to a definitions section and other matters.

Amendments Nos. 68 to 73, inclusive, insert Chapter 2, which relates to the Irish passenger information unit, its director, protection officer and other staff and its obligations. They very much replicate what is in the 2018 PNR regulations while providing for the continuation of the PIU's current staff, notwithstanding the revocation of the 2018 regulations.

Amendments Nos. 74 to 76, inclusive, insert Chapter 3 of Part 18. Amendment No. 74 provides for the competent authorities designated under the 2018 regulations to remain so designated under this Part. They are the law enforcement agencies such as An Garda Síochána. Amendment No. 75 provides that the Minister may designate a person as the independent authority. The main function of the authority will be approving PNR requests. Amendment No. 76 sets out the Data Protection Commission's oversight function as regards this legislation.

Amendments Nos. 77 to 79, inclusive, insert Chapter 4 of Part 18. This chapter provides for the designation by the PIU of individual intra-EU flights, which will be encompassed by the State's PNR regime. An intra-EU flight can be designated for up to six months when considered necessary. Amendment No. 79 provides for a designation of all intra-EU flights unilaterally when the State is faced with a genuine present or foreseeable terrorist threat. That can only be done on approval by the High Court, which means there is judicial supervision of this statutory provision.

Amendments Nos. 80 to 88, inclusive, insert a new Chapter 5 in Part 18 dealing with the transfer and exchange of PNR data. Amendment No. 80 refers to airlines' obligations to transfer PNR data to the PIU a day before take-off and when doors shut in preparation for departure. Amendments Nos. 81 and 82 refer to the process undertaken by the PIU of assessing the transferred PNR data against serious crime or terrorism watch lists and predetermined criteria to identify persons of interest due to take the flight or go on board. Amendments Nos. 83 to 88, inclusive, deal with requests for PNR data held by the PIU from competent authorities in the State, PIUs in other EU countries, Europol and third countries, as well as requests by the Irish PIU to a PIU of another member state.

Amendments Nos. 89 and 90 insert Chapter 6 of Part 18. It deals with the retention periods for PNR data and maintenance of documentation by the PIU. In line with the EU court judgment, PNR data transferred to the PIU from airlines can be retained for six months, after which the Irish PIU normally must delete it.

Amendments Nos. 91 to 97, inclusive, insert Chapter 7 of Part 18, which deals with transitional provisions. Collectively, the amendments ensure that various actions, processes and requests undertaken just before the coming into operation of the new Part will continue to have a lawful basis and can seamlessly transfer to the new provisions.

Amendments Nos. 102 to 104, inclusive, insert Schedules 2 to 4, inclusive, which relate to Part 18. Schedule 2 defines the data categories that make up PNR data, as set out in the EU PNR directive. Schedule 4 lists the offences under Irish law that meet the definition of "serious crime" in the PNR directive. The offences must fit a crime category prescribed by the directive and have a maximum prison sentence of at least three years. Schedule 3 lists the competent authorities in the State that can request PNR data. The Minister can add to Schedules 3 and 4 by way of order but only within the parameters of the definition of "competent authority" and "serious crime" in the EU directive.

Amendment No. 4 simply amends the Long Title consequential on these amendments.

Michael McDowell (Independent)
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These amendments relate to data collection. While I disagreed with Senator Higgins about face coverings, I do not want it to be understood that I disagree with her in relation to the procedure we are following today. This particular set of very elaborate legislative measures being introduced by the Minister should not be introduced for debate on Report Stage in the Seanad in circumstances such as we have now, even if they have been recommitted for discussion.

I have some questions for the Minister on these provisions. We were told, whether it is true or not, that the perpetrator of the knife attack that happened in Belfast had travelled from Somalia or Sudan via Paris to Dublin and then onwards to Belfast. I was interested to see that this gave rise to some apprehension about closing the Border or having a closed Border, given that the Minister has stated that the great majority of the bogus asylum-seeking traffic seems to be going from the UK to Ireland via Belfast. Is it the case that airlines will have to keep a record of the passport of a person boarding an intra-EU flight? If somebody gets a flight from Paris to Dublin, will that person's photograph and identification document be recorded somewhere and be available to the Irish authorities to check? The point that occurred to me about that side issue in the Belfast disorder was whether there is some check at Dublin Airport where a person like that is flying from Africa to Paris to Dublin and intends to go to Belfast. Is there actually a record, or will there be under this regime, if implemented, including photographs or photocopies of passports, with a view to determining whether the person who has come to Ireland to go to the UK to claim asylum has travelled through a safe country? That is a question a lot of people wondered about in the aftermath of the Belfast disorder.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Senator for his contribution. I take on board his comment that there are a lot of amendments in respect of the passenger name record data. I will make two points in my defence. First, many of the provisions being put forward on Report Stage simply replicate what is in the 2018 regulations. Passenger name records are not something new to Irish law. Provision for them has been in secondary legislation since 2018, applying as it does to extra-EU flights. I listened to the concerns expressed by Senators McDowell and Higgins about these provisions being introduced on Report Stage. However, this is not something that is desperately new. It has been there for the past eight years.Second, it is preferable if rules relating to passenger name records are in primary legislation, as opposed to the secondary legislation - the statutory instrument - that has existed to date. Back in 2018 when the regulations were introduced, there was no debate in any House of the Oireachtas about it; it was just signed by the Minister of the day, so there is a benefit in having it in primary legislation. There has been some Oireachtas debate in respect of it, in contrast to it being by way of secondary legislation.

Senator McDowell asked questions in respect of the person who is being charged with an offence in Northern Ireland. This information was revealed at the time. The person had flown from Luxembourg or France – I think it was Luxembourg – on an internal EU flight from Luxembourg to Dublin where the person claimed asylum and the next day went to Northern Ireland and claimed asylum there. Senator McDowell raises this issue because he wonders, if after this legislation comes in and it applies to internal EU flights, we will then have a record of the data in respect of individuals such as the person who was highlighted in his example. The short answer is we will have the data but it will not be accessible because, as he will know in respect of passenger name record data, that can only be used for offences where people are on a watch list and – in respect of serious offences – where a penalty could potentially imposed of up to three years or more. In the situation that arose, unless the person had been on a watch list and had previously committed a serious offence, then the information on the person would not be readily available. The information in passenger name record data cannot be used for the purpose of immigration offences. If an individual comes into Ireland and we have the PNR data - if they come in on an internal flight we will get that information in respect of the commission of serious offences, that is, if the person is on a watch list for serious offences - the data, however, will not be a tool that can be used for the purpose of identifying violations of our immigration laws because they do not meet the threshold of seriousness in terms of the penalty imposed to get them onto the PNR system.

Michael McDowell (Independent)
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I am very grateful to the Minister for explaining that. I feel a sense of disappointment on hearing that the information is there but it cannot be used for immigration purposes or for the purposes of the verification of asylum claims. It is purely restricted to the particular cases mentioned. It strikes me that if the EU is serious – sometimes I wonder if it is – about asylum seeking as a mask for breaching immigration law right across the European Union, that in putting in the kind of safeguards the Minister has spoken about, such that everything has to be destroyed after six months, Ireland does not have access to what Luxair or whatever airline it was in the case of Luxembourg that the Minister outlined, saw and took a photocopy of and were required for some purposes to keep. We cannot say this individual claims he is from Somalia and that he came from England but we believe that the evidence is there to show that he came a totally different way and that he is not telling us the truth. All of that is ignored and made unusable out of what I think is a false theory of keeping Big Brother under control.

We can go back to the hugely controversial issue that surrounded the Graham Dwyer trial. When I was Minister in the Department of justice, some gratuitous activist in the EU decided that it would be a great thing if all member states of the EU were obliged to keep phone records. That was fine. I would not mind that too much but then it was decided that as a countervailing provision for that, they were all obliged to get rid of them after two years. In those days, the Irish phone companies, because of the Statute of Limitations and because people could contest bills and dispute whether they were being charged correctly or incorrectly for use of telephone communications, kept their data for six years. Some bright spark in Europe decided if we are going to have a rule that everybody must do this – even though nearly everybody was doing it – we are going to say that as the countervailing protection for the privacy of individuals that after two years they must all be got rid of. What is the sense of that? If somebody can keep my phone data for two years, I do not see how my rights as a citizen to my good name, privacy or anything else are in any way advanced by requiring their destruction after two years and requiring that the law be changed to that effect. The funny thing is that we made the point at that time, through the then Attorney General – the late Rory Brady SC. He challenged this regulation as an unnecessary interference in our perfectly reasonable arrangements in Ireland and he was slapped down by the European Court of Justice. Later on, however, the same directive was invalidated by the same court because it was not sufficiently protective of people's privacy.

If you are coming into Ireland as an immigrant or if you are getting on an aeroplane, or a ferry for that matter, to come to Ireland, it is no great interference with your privacy rights that a record is kept of that event and is accessible to investigation at a later stage. The Minister has recently been made aware of a contract killer coming into Ireland, apparently with a view to killing somebody in Ireland. By a happy outcome, the same contract killer died in a motor crash before he could carry out his work. One would believe that he came from an EU country but we do not know that. I do not see how my privacy rights, my right to dignity as a human being or the power of Big Brother are in any way involved if they can prove that four years ago, I travelled to Warsaw because a record was made of it for immigration law purposes and nor do I believe that any asylum seeker has any legitimate reason not to have their means of access into this State easily verifiable by data that can exist for one purpose but cannot be used for another purpose.

I want to put on record my sense that the European Union is not serious – I am sorry to say this on the second day of our Presidency of the European Union – but it is not competent with a small "c", not a legal large "C" to deal with immigration and asylum seeking. It has made a mess of it and should return those competences to member states to take individually whatever measures they consider are necessary to protect the rights of real asylum seekers and to distinguish between bogus asylum seekers and economic migrants who are seeking to circumvent the law. The sooner that those changes are brought about the better.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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On my second day as chair of the Justice and Home Affairs Council of the European Union, I think the Senator is being slightly unfair to the European Union. Obviously, when it comes to passenger name record data, that information is not available for the purpose of immigration issues. There is a completely separate system, however, that records details and information in respect of any person claiming international protection within the EU, and that is the Eurodac system. It is now much more advanced than it was when introduced in 2003. Anyone who applies for asylum in Ireland will have their fingerprints taken. They will have photographs taken. Biometric analysis is used for the purpose of identifying the persons concerned and there are provisions in the legislation that allow for the search of luggage for the purpose of establishing identity. A huge amount of information is available to the European Union in respect of persons coming to the Union claiming asylum. That is important to record.

Senator McDowell also spoke about data retention. A number of decisions of the CJEU have overturned the legal instruments in place for the purpose of data retention with the European Union. One of my ambitions as Ireland takes over the Presidency is to see if we can get another legal instrument put in place. Data retention, irrespective of your views, is essential for the purpose of investigating serious criminal activity.

Michael McDowell (Independent)
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I will be brief because it is probably stretching things. It has been 22 years since I was chair of the Council of justice and home affairs ministers. I will say two things to the Minister. First, he should never underestimate the extent to which the other members of the council will agree with my point of view rather than the point of view of some people in the Berlaymont building. They are much more independent spirits. Second, the Eurodac procedure is very useful for identifying somebody who applies for asylum in one country and attempts to do the same in another country within the European Union. That is useful. However, somebody might fly from somewhere in north-eastern Africa to Luxembourg, a safe country where he could apply for asylum if he had a good case and decide to move on to Dublin where he will get off the plane and go to Belfast with all the consequences we heard about in Belfast. Eurodac does not have any function in those circumstances. Nobody in Luxembourg would ask whether he had any right to travel to Dublin, whether he had any legitimate cause to go to Dublin or whether he even had a visa that allowed him into Dublin. That person is effectively choosing Ireland from somewhere he booked his flights to start with, or where they were booked for him by people smugglers. That is effectively destination shopping among asylum seekers, which is totally at variance with the notion and proper interpretation of the international conventions. I may be being persecuted in Ireland, but that does not mean that I can ask myself where I would really like to live. It might be Australia or New Zealand or perhaps America. We accord to would-be asylum seekers the right to travel from the point at which they claim they were being persecuted to Luxembourg, then to Dublin without applying for asylum here, and then to Northern Ireland to apply within the United Kingdom for asylum. That is an absurd notion. This absurdity and all that follows in terms of the difficulty of controlling it flows from the inappropriate policies and procedures defended at European level and, unfortunately, upheld by the Court of Justice of the European Union to the point where, as things stand, unless the Minister's council takes a stance on the issue and does something about it, we have effectively little or no defence against bogus asylum seeking.

Maria Byrne (Fine Gael)
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Pursuant to Standing Order 165, it is reported to the Seanad that the Long Title of the Bill has been amended.

Government amendment No. 5 arises out of recommittal proceedings. Amendments Nos. 5, 100 and 101 are related and may be discussed together by agreement. Is that agreed? Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Amendment No. 100 makes a number of technical amendments to the miscellaneous provisions Act 2020 that are consequential on or necessary to ensure consistency with amendments elsewhere relating to the use of electronic technology in certain court proceedings. It also repeals two redundant provisions of the 2020 Act. Those provisions are inoperable because in reality the Courts Service when sourcing any such equipment is bound by specific budgetary and procurement frameworks. A court can therefore only use such technology as is available to it on that basis.

Amendment No. 101 amends the criminal justice perjury Act. This is a purely consequential amendment to take account of the proposed insertion in this Bill of a provision for statements of truth in criminal and international co-operation proceedings.

Amendment No. 5 amends the Long Title, consequential on amendments Nos. 100 and 101.

Maria Byrne (Fine Gael)
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Pursuant to Standing Order 165, it is reported to the Seanad that the Long Title of the Bill has been amended.

Maria Byrne (Fine Gael)
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In respect of the other amendments, I remind Senators that a Senator may speak only once on Report Stage, except for the proposer of an amendment, who may reply to the discussion of the amendment. Also, on Report Stage, each non-Government amendment must be seconded.

Government amendment No. 6 arises out of committee proceedings. Amendments Nos. 6, 7 and 99 are related and may be discussed together. Is that agreed? Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Amendments Nos. 6 and 7 amend section 14 of the Bill, which provides for the commencement. Amendments Nos. 6 and 7 amend section 14 to provide for the following provisions of the Bill to come into effect on enactment; subsections 1 and 4 of section 1, section 4(b)(i), section 49, section 75 insofar as it relates to the Courts Service, section 76, section 80 and Parts 3, 4 and 5.

Amendment No. 99 relates to an amendment to Schedule 5 to the Social Welfare Consolidation Act 2005 to add the Courts Service to the Schedule. Other operational criminal justice agencies, such as the Irish Prison Service, the Probation Service and Forensic Science Ireland, being under the aegis of my Department, are already specified bodies under the Schedule. The Legal Aid Board is also a specified body. Amendment No. 99 proposes to further amend the Schedule by adding the Director of Public Prosecutions and to remove the current restriction on the Garda whereby the Garda is specified, but only in relation to its own members. The amendment will mean that all operational criminal justice agencies can, within the legal and governance parameters laid down in the 2005 Act, use PPSN in order to be sure of the identities of persons who are going through the criminal justice system or who are availing of services such as vetting and firearms licensing.

Critically, it will also facilitate the development of a unique identifier across the criminal justice system. Currently, most criminal justice agencies use their own separate identifiers. The lack of a single system-wide identifier makes the authentication of identities and records, and the collection and sharing of data, much more time and labour intensive. It also increases the possibility of misidentifications and other mistakes occurring. This amendment will therefore help to address the administrative and operational issues I have just mentioned while also supporting community safety. The development of a unique identifier for the criminal justice system is a programme for Government commitment following a thorough policy review and consultation with relevant stakeholders including victims' representatives and human rights organisations. It was determined that the PPSN would be the most reliable and secure basis for a unique identifier and would provide significant advantages for both the criminal justice system and its users. Criminal justice agencies already have the capacity to gather a significant amount of personal information for purposes of investigation and prosecution. Allowing them to access the PPSN will simply allow that information to be more accurately and easily transferred within compliant data sharing norms.This is a significant amendment. I listened to Senators McDowell and Ruane when I was dealing with the Garda powers Bill to try to have a provision within that Bill that would require gardaí to record the nationality of individuals who come before An Garda Síochána or come within the criminal justice system. The advantage of this is that we will now get a significant amount of data that will enable us to do research, so the type of information that Senators McDowell and Ruane wanted will be readily available.

Michael McDowell (Independent)
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I have two comments to make about that. First, the stop and search powers that we were concerned with are not ones where the unique identifier would come into place. Under the stop and search powers, where somebody is stopped and searched and found, for instance, not to have any specified articles in their possession, there is no criminal justice follow-on from that and, therefore, there is no record of them thereafter. I fully accept the Minister's point that it is desirable that, if a person is the subject of a prosecution, conviction or sentence, they be identifiable and traceable in a sensible way right across the criminal justice system at every level. I have no problem with that concept. However, it does not deal with the issue that Senator Ruane and I were dealing with, which is knowing how many people are randomly, or near randomly, searched unsuccessfully on streets throughout the country, and what kind of people they are.

The PPS number or the criminal identifier will not supply the data in respect of them because there will be no need to do so unless we amend the law to say that we can stop somebody on Camden Street, search them for drugs, find they have no drugs, but also inquire of them what their PPS number is. That is never going to happen. As I said, the only PPS number of which I am aware is my VAT number, and if it were not for that, I would have no idea what my PPS number is.

Second, a lot of stuff is coming through now where, for instance, registers of people convicted of domestic abuse and the like are being created as a matter of law for the protection of innocent people who have to deal with people who have records in those areas. I consulted the procedure for changing your name. I discovered that it can be done very easily in the High Court by registering a deed poll of your intention to be known by a different name in the future. I consulted the publicly available register of name changes. I urge everyone in this House, if they have a spare half hour, to look at what is happening. There is a minority of people who are simply changing their name for reasons that I think are to do with gender issues, and changing from Patrick to Patricia, or whatever it may be, but they are a small minority. The great majority seem to be for other reasons, none of which are specified. Somebody consulting the register who sees a name change cannot be sure who they are dealing with because, on the publicly available register, they do not know the address or the antecedents of the person who is changing his or her name for whatever reason.

Members would be very surprised to see the number of people who are changing their names every month in Ireland. The alarm bells go off in my mind when I see some of them. Some I can understand completely. For example, on their birth certificate, they were registered as having somebody as their father, or maybe they were adopted or quasi-adopted by another family and want to be known by their second name. If the consequence of a name change in those circumstances is that somebody is entitled to have a passport in their chosen name, or if somebody who has been convicted of domestic abuse wants to avoid the consequence of being on the register, and socially just wants to change their name and sail under a different flag, there is very little that can be done about it.

I ask the Minister to take a long, hard look at the rules for name change as they exist in Ireland. They seem to reflect a very much more relaxed and 18th or 19th-century view of the entitlement to change your name. Given the consequences for dealings with the State and the like, at the very least, one would imagine that the published register of people who are changing their name would contain a PPS number as an identifier in the manner that the Minister is proposing for the criminal justice system generally, but we do not have that.

Those are the two points I would make on the matter. First, the stop and search powers are not really dealt with by a unique identifier because a criminal procedure must be initiated for them to come into question. Second, we have an unaddressed issue in relation to the capacity of people to conceal their former selves by changing their name. It is possible. Anybody can change their name. Somebody who has been convicted of a very serious offence sitting in Mountjoy can change their name. It is a ridiculous situation, and I ask the Minister to look at it.

Alice-Mary Higgins (Independent)
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I want to reaffirm and agree with the amendments that my colleague, Senator Ruane, put forward previously in relation to stop and search. They are not addressed by this. They are not about documenting persons who are prosecuted, but about documenting patterns in how gardaí are deploying or using the powers that are being given to them. Monitoring who is stopped and who is searched is very different from tracking persons who may be moving through criminal prosecution. Of course, this is one of the issues with racial profiling, which we factually know to be an issue in nearly every jurisdiction where it has been examined, and we have seen those issues particularly in the UK, the United States and elsewhere. There is an issue with how stop and search is used, and there are concerns.

We in Ireland are in a position where we will not know if there are issues with the targeting of particular vulnerable individuals based on the colour of their skin or their ethnicity. We will not know that information because it is only in those cases where there is a prosecution that there will be monitoring. Again, even if we look at those figures, we will only have the figures for the prosecution, and it may well end up looking like more persons are being prosecuted for a particular offence without us knowing that a vastly disproportionate and far greater percentage of them are represented in the stop and search. We just do not know. If we are not monitoring that information, if the information is not being gathered and if the choice is being made to not know how stop and search is being deployed and used, then we are missing key information in terms of ensuring that we do not have inequality and either racial profiling or other profiling of particular cohorts and communities in the way that policing is done in Ireland.

With respect, I disagree with the Minister. I concur with Senator McDowell in saying that these amendments do not deal with the issue. The Minister suggested that this addresses these issues, but it does not.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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In fairness, this will be a positive development. I should not try to speak for other Senators but it is the case that, in the context of the Garda Síochána (Powers) Bill 2026, Senators wanted to see more information available within the criminal justice system so as we can identify information about people who are interacting with the criminal justice system and people who are convicted. The information that will now be generated as a result of adding the Garda and the Courts Service to Schedule 5 to the Social Welfare Consolidation Act will mean that all that information that the Garda and Courts Service have can be shared, for instance, with the Central Statistics Office, and information will become available in respect of individuals who are convicted, and, indeed, prosecuted, of certain criminal offences. That is a positive development. Maybe I am wrong but I think Senators welcome that.

The point here is, "Yes, but we want more." I had referred to the Garda Síochána (Powers) Bill. We have enough on our plate here dealing with the miscellaneous provisions Bill without me going down an avenue talking about the Garda Síochána (Powers) Bill but since Senator McDowell invited me down there, I will go down there briefly. In terms of the Garda Síochána (Powers) Bill, there is information that is recorded when gardaí stop and search a person, but if, after a stop and search, the garda is required to get information about the nationality or religion of an individual, it turns the whole process into something much more complex. However, we will return to that when we come back to the Garda Síochána (Powers) Bill.

Pat Casey (Fianna Fail)
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Amendment No. 8 is a Government amendment. Amendments Nos. 8 to 17, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Currently, section 12 of the Bill amends section 67 of the Courts of Justice Act 1936 which provides for the Superior Courts rules committee to allow the Chief Justice to nominate an ordinary judge of the Supreme Court, Court of Appeal or High Court to take his or her place on the committee. It also reduces the number of ordinary judges of the Supreme Court and Court of Appeal on the committee from two judges from each court to one. These changes are being introduced to try to reduce the very significant non-judicial workload of the Chief Justice. Amendment No. 8 proposes to substitute section 12 to, in addition to the matters I have set out, also provide that the Chief Justice may separately nominate another judge of the committee as chair of the Superior Courts rules committee and to provide that such nomination may be revoked at any time.

Amendments Nos. 9 to 17, inclusive, amend section 14 of the Bill, which itself amends sections 12 and 44 of the Judicial Council Act, which provide for membership of the board of the Judicial Council and the judicial conduct committee. Currently, section 14 amends the 2019 Act to provide that the Chief Justice may nominate another judge of the Supreme Court, Court of Appeal, High Court, Circuit Court or District Court to perform his or her functions as an ex-officio member of the board and of the judicial conduct committee rather than just a judge of the Supreme Court, as is currently the case. The proposed amendments provide for the revocation at any time of a nomination to act as chair of the board of the judicial conduct committee. They also substitute certain references to "nominate" with "nominate in writing" to align with existing provisions in the 2019 Act.

Michael McDowell (Independent)
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I want to draw to the Minister's attention to the structures of the Judicial Council. In certain cases, there is provision for an elected member of the District Court and an elected member of the Circuit Court. It is also provided in law that at least one of them must be of the opposite gender to another. That means that if, for instance, the District Court elects a woman, the Circuit Court has to elect a man. That seems to be something that the Minister should reconsider. It is a bit intrusive to say to Circuit Court judges or to District Court judges that whosoever they elect will determine who the judges of the other court can elect for the purpose of gender balance on the whole board, and especially now that there are so many women judges doing such fine work as judges in our system. On the need for strict rules of that kind, which disqualify people on the basis of what other judicial electorates decide, it seems unnecessary and overly complex.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I hear what Senator McDowell said.

Pat Casey (Fianna Fail)
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If the question on amendment No. 18 is agreed, amendments Nos. 19 to 24, inclusive, cannot be moved. Amendments Nos. 18 to 24, inclusive, are related. Amendments Nos. 19 to 22, inclusive, are physical alternates to amendment No. 18. Amendments Nos. 18 to 24, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

Maria McCormack (Sinn Fein)
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I move amendment No. 18:

In page 19, to delete lines 9 to 25 and substitute the following:

"40B.Nothing in this Part shall be construed as conferring any new or additional power on the Minister to direct the deployment of members of the Defence Forces in aid of the civil power beyond those that exist apart from this Part.".

Pauline Tully (Sinn Fein)
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I second the amendment.

Maria McCormack (Sinn Fein)
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I will discuss amendment No. 18 first. This amendment seeks to annul the provision in relation to aid to the civil power. Despite what the Minister said to me on Committee Stage as to the reasons for the inclusion of these provisions in this Bill, today we have no explanation whatsoever as to what prompted the Government to bring forward these provisions.

The Minister for foreign affairs and for Defence was completely evasive on this matter when this was discussed in the Dáil select committee. I looked back over the transcript from that committee from 19 May, which I have to hand, and it is not adding up. We do not know where the rationale for bringing forward these changes came from and why it is being done in such a rushed manner and as part of this miscellaneous provisions Bill, which, the Minister has already stated, already covers a wide range of, in my opinion, unrelated matters.

Sinn Féin has been clear that any expansion of Defence Forces powers must be grounded in transparency, democratic oversight and absolute respect for civil liberties. Whether the Minister accepts it or not, the fact is that the provisions on the aid to the civil power raise concerns regarding the normalising of military involvement in policing, which should remain exceptional and limited. An Garda Síochána is the primary civilian policing authority and any Defence Forces support must remain exceptional, time bound and tightly controlled.

I am interested in the Minister's response here. I am not entirely satisfied. On the last occasion, the Minister told me that this has been used for a long time and is already in place. If this is already in place, why did this need to come forward now and as part of this miscellaneous provisions Bill? Why is it not getting a chance to go through the defence and foreign affairs committees? It seems to have been pushed through and added on here. This Bill already has many unrelated matters. The Minister for foreign affairs seemed to not really understand her reasons for bringing this forward right now.I am hoping the Minister might be able to clarify it for me.

Alice-Mary Higgins (Independent)
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I have a number of amendments to this section. When we were discussing this on Committee Stage, there was a strong push-back against the amendment we proposed at the time, which was the idea that there would a requirement for a motion to the Dáil or Seanad in respect of such deployments. It was argued that we already do it. We do it 240-something times in the year but, as was said, there is still that question that if we are already doing it and it is already in practice, then why are we adding this specific power now?

There is also the question of transparency and accountability because it is a significant thing for the Defence Forces to be deployed in a civil matter. That is why I have a set of amendments which are seeking to bring transparency to such measures as are proposed in the Bill. At the moment, the legislation speaks to the fact that the Minister for justice decides to request that the Minister for Defence would allow for the Defence Forces to be deployed and it may be subject to conditions, but which conditions?

Amendment No. 19 relates to when publishing is requested by a committee. This does not slow the Government down. This is not something that means the Government cannot act in this prompt way on those matters that are being put forward by the Minister in terms of a missing person, the clearing of the rhododendron, or whatever else the Defence Forces may have been deployed for. It reads:

When requested by a committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas, the Minister shall publish information in relation to the conditions attached to the approval of decisions under subsection (2).

I am going to pick one of the most harmless of the deployments, the removal of the rhododendron in a national park, which I certainly have no objection to, or we could look to the deployment of the Defence Forces in relation to the clearing of a public street. There are many different examples, but it is that the relevant committee can ask what conditions were attached when the Minister for Defence agreed that the Defence Forces would be allowed to act in this way, in the public space, in an area that would normally and properly be the remit of civil authority. It can ask what conditions were attached to the bringing in of the Army in these situations. That is an important piece because at the moment, it simply reads, "The Minister may, subject to such conditions as he or she may specify, give general approval". This is not just for individual instances but for a "class or classes of assistance".

We then come to our second amendment, amendment No. 20. It reads:

The Minister shall publish, on an annual basis, the class or classes of assistance as agreed with the Minister for Justice, Home Affairs and Migration, for which deployment of members of the Defence Forces in aid of the civil power has been approved.

All of that argument about how this will slow us down, etc., does not apply in these instances. These are instances around transparency and good governance. What are the class or classes of assistance? Is missing persons a class? The example given by Senator McDowell in the past was in the protection of the transfer of large amounts of money. Whatever they are, let us know what the classes are because at the moment the Bill allows for the Minister to come up with new classes, categories and types of things that the Army can come in for.

If the Minister for Defence and the Minister for justice agree - there is not a requirement to get their Cabinet on board but presumably they will seek to do so - they can use the Army for all kinds of things. The Minister may say that it is already used for those kinds of things but if they are reasonable kinds of things, there should not be an objection to publishing it and letting us know what the categories of action and situations are in which the public may expect to find the Army deployed within the civil space. Where they might have expected to find An Garda Síochána, they are finding the Army. Where they might have expected to find another member of the civil authority, the Army is suddenly involved. The public is entitled to know why and for what purposes, so that then there can be a little bit of an evaluation, at a minimum in the public space if not a requirement in the Oireachtas, as to whether it is an appropriate use of the Army. It at least allows for transparency so that we know and can have that discussion, even if my amendments do not create an obstacle to the allocation of such classes. They simply look for transparency in relation to them.

Amendment No. 21 proposes that Minister publishes the list of class or classes in aid of the civil power. It also proposes that "Where the Minister wishes to introduce a novel class of assistance", the published list would be updated. If the Government introduces a new category of situation, for example, surrounding data centres and the Critical Infrastructure Bill, or some other area is deemed as an area for the use of the Army, besides all of those uses that may be worthy that we have heard of in terms of explosives and missing persons, the Minister should publish that and it should be made clearly available. This is so that the public can at least know that the decision has been made and that there might, at least at a minimum, be political accountability in relation to that decision and its merits are debated.

Amendment No. 22 reads:

In page 19, between lines 17 and 18, to insert the following: “(3) The Minister shall, in consultation with the Minister for Justice, Home Affairs and Migration, develop and publish guidelines for directions to deploy members of the Defence Forces in aid of the civil power under subsection (1).”.

With these amendments, I have gone directly back to things that are in the Minister's amendment and looked for the conditions and the classes of assistance to be transparent. Section 40B(4) of the Bill states, "The Chief of Staff shall, with the consent of the Minister, prepare and issue guidance to members of the Defence Forces deployed in aid of the civil power." Those guidelines should be published. That is a simple thing. If guidelines are given to the Defence Forces in respect of how they are meant to engage in an area that is not within their normal remit, which is an area of civil power and civil administration, and guidelines as to what are appropriate or inappropriate actions in that context and the appropriate protocols safeguards they should be applying, the public should also be able to know those. When members of the public engage with An Garda Síochána, they know their rights and the mechanisms and guidelines that gardaí may be operating under to a degree. Most of the public do not have the experience of engaging with the Defence Forces. If we create the possibility for situations where members of the public find themselves engaging with members of the Defence Forces, who are asserting authority in a situation, it would be useful and proper that the public would know exactly what the guidelines and appropriate or inappropriate actions are in terms of how those members of the Army may behave in the engagement.

These are simple calls. They are not new mechanisms. They are not further safeguards. We have been through that debate on Committee Stage, and the proposal for a separate fail-safe mechanism was rejected. They are simply a requirement that the measures mentioned in the Bill are transparent, published and publicly available. It is a minimum requirement.

Sharon Keogan (Independent)
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My amendment No. 24 proposes to insert a three-year sunset clause and a mandatory operational review framework into Part IIIA of the Defence Act 1954, as inserted by section 9 of the Bill, directly addressing the State's expanding powers regarding the Defence Forces' deployment in aid of the civil power. Let me be clear. I support the broad principles of the Bill and I welcome the codification and modernisation of our defence protocols. However, this is a miscellaneous provisions Bill and, as such, it is not really the place to introduce broad and sweeping reforms. Nevertheless, just as we should not make the perfect the enemy of the good, we must never allow the good to become the enemy of the better.

I bring forward my amendment in the spirit of improving the Bill and, at a bare minimum, in order to have some constructive suggestions entered into the public record, which I hope the Minister will consider. In addition to adding a sunset clause, my amendment proposes a requirement for the Minister to bring forward a report. This is to ensure the legislation does not expire into a vacuum. The amendment also outlines the issues the report should consider. That will address what I consider to be a number of conflations and simplifications that arose during the previous debate.

One issue the report should consider is the classification of the different types of deployments of the Defence Forces in aid of the civil power. During debate on the preceding Stage, there was a conflation of all kinds of deployments. On the one hand, the Minister mentioned routine deployment such as the bomb disposal squad helping An Garda Síochána and armed escorts for cash transports. On the other hand, the example was given of the deployment against the fuel protests. That is not helpful. Attaching a section of soldiers to passively dissuade an attack on a cash transport is obviously different from a deployment of a whole company to clear protestors from the streets.

The amendment also suggests consideration of the threshold appropriate to the classifications. In defence of the deployment during the fuel protests, we were told the protestors were in breach of the law, had no right to block vital infrastructure and, therefore, we must send in the troops. That reflects a bizarre all-or-nothing dualism. Breaches of law must be treated with proportionality. Civil disobedience, by its nature, is about breaking the law in a non-violent manner. When climate protestors blocked O'Connell Bridge or when pro-peace activists block Shannon Airport, is there any talk of deploying the Army? Of course there is not. Unless a violent mob were surging up Nassau Street or Grafton Street with clear intent to storm these buildings in order to violently overthrow the legitimate Government, the Army should not be deployed.

As a general principle, the Army should not be used for crowd control or dealing with protestors at all. That should be the sole remit of the Garda and it should be resourced accordingly. There is a tangible concern that the Army could slip into becoming a back-up riot squad, and that is not right. The Army is for the defence of the State, whether from external invasion or internal insurrection, not for deployment against protestors looking for a change of law or policy or even against vandals.

Then there is the consideration of the safeguards and oversight mechanism applicable to such deployments. In looking to check these powers of domestic military deployment, we have also seen evidence of another type of duality of thought, namely, that deployment in aid of the civil power should be either subject or not subject to the approval of both Houses of the Oireachtas. This is another unhelpful duality. As the Minister pointed out, it would be impractical given the urgent nature of most deployments. However, that does not mean we should give such a high level of discretion regarding serious deployments to two Ministers. There could be a requirement for Cabinet approval, for example, or approval by the Taoiseach and Tánaiste, with such approval conditioned on a State crisis check.

I do not have a fully formed solution but these are exactly the questions and discussions I would like my amendment to encourage. On the back of these discussions and considerations, a permanent law is to be drafted. If that is not yet ready and more time is needed to get it right, the amendment includes provision to extend the current legislation via a resolution passed by both Houses. Discussions and reforms along those lines will be vital as we go forward. We must face the sad reality that we are in an age of growing security needs and our Defence Forces will, I hope, grow and expand to meet the dangers the world faces. In that context, it is vital to look to appropriate reforms in matters of domestic deployment, including deployment in aid of the civil power. I commend my amendment to the House.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank all the Senators for their contributions. Senator McCormack asked why this is being done now. There really is no surprise in the Bill's introduction. It has been proposed for some time. It is designed to ensure that the system in place at present, based on regulations that are approximately 60 years old, is modernised. As I said earlier in respect of another provision within this miscellaneous provisions Bill, it is preferable that details in terms of the exercise of important powers are set out in primary legislation. The Defence Act 1954 contains a section dealing with aid to the civil power. However, it is generally the regulations made under that provision that specify the associated functions in terms of An Garda Síochána and the Defence Forces.

Senator McCormack stated that the Bill includes a whole series of unrelated matters. That is the function of a miscellaneous provisions Bill. "Miscellaneous" means there are unrelated matters linked together. The Minister, Deputy McEntee, was very clear on Committee Stage in the Dáil that the purpose here is to set out in primary legislation, namely, the Defence Act, the circumstances under which An Garda Síochána or the Minister can request the assistance of the Defence Forces and-or the Minister for Defence in aid of the civil power in respect of work that is done by gardaí.

As I said on Committee Stage in this House, the annual report of the Department of Defence and the Defence Forces sets out the aid-to-civil-power operations. It provides all the detail as to the numbers of requests made by An Garda Síochána and the type of activity requested. There is nothing sinister or unusual about it. I gave the figure for the requests last year, and it was a significant number. The report that comes out on an annual basis specifies the type of assistance given, including Garda air support unit missions, Central Bank patrols, airport security duties, explosives production security, Central Bank security, prisoner escorts, explosive ordnance disposal call-outs, explosive materials escorts, Naval Service diving operations, cash-in-transit escorts, hospital security, VIP visit security, search operations, and Air Corps and Naval Service support. That information is available. It is not being hidden.

At present, the way it happens is that a C70 form is sent by An Garda Síochána to the Defence Forces in circumstances where gardaí need the assistance of the Defence Forces. I gave the example on Committee Stage of how the search for the missing remains of Mike Gaine required the Garda to seek the assistance of the Defence Forces. That was a perfect example of where such a request was necessary.

In respect of amendment No. 18 from Senator McCormack and her colleagues, it is acknowledged that the regulations are in need of modernisation. Those provisions have been there for more than 60 years. What is being proposed in the new section 40B of the Defence Act 1954 is that the new section will provide for substantive change to the current legislative framework under which members of the Defence Forces may be deployed in aid of the civil power. This is necessary to ensure the provisions are appropriately set out within the Defence Act for this important role of the Defence Forces. It is beneficial to the public and to the Oireachtas that it is set out clearly what will be proposed in the future.

Amendment No. 18 provides that "[n]othing in this Part shall be construed as conferring any new or additional power on the Minister to direct the deployment of members of the Defence Forces in aid of the civil power". I have given a list of examples of deployments. Obviously, circumstances will change. I am sure that 15 or 20 years ago, a huge number of the requests were for cash-in-transit escorts. In 2024, there were only five such requests. As time progresses, the nature of threats changes and the number of threats increases, the circumstances of requests will vary as well.That is why it would be inappropriate to state in a piece of legislation that the Act shall not "be construed as conferring any new or additional power on the Minister to direct the deployment of members of the Defence Forces in aid of the civil power beyond those that exist apart from this Part". Those are powers that exist at present. There may be other circumstances where the Garda requires the assistance of the Defence Forces and it should not be precluded from seeking that assistance simply because there is provision in legislation which states a list of things that can be done, such as I have read out, but not go any further. I will not be accepting amendment No. 18.

I will turn to amendments Nos. 19 to 22, inclusive, in the names of Senators Higgins and Ruane. These amendments also relate to the amendments of the Defence Act as set out in Part 5, specifically section 40B to which I referred. The amendments relate to the publication of information relating to the aid of the civil power process. In that regard, statistical information in relation to the deployment of members of the Defence Forces in aid of the civil power is provided by the Department of Defence on an annual basis in the report to which I just referred. This report, which contains detailed information relating to the Department of Defence and the Defence Forces, is laid before the Houses of Oireachtas. All that information is there, setting out the details as to how many times the aid of civil power operations has been requested and granted, and is available to the Houses of the Oireachtas.

It is important to recall the definition of "aid of the civil power", which is set out in subsection (5) of the new section 40B. The definition refers to "assistance provided by the Defence Forces to An Garda Síochána under this section". This definition sets out the context in which deployments in aid of the civil power take place, which is that the requirement for assistance is identified by the Garda and a request is made for the assistance of the Defence Forces. The domestic internal security of the State is primarily the responsibility of my Department and the Garda. It is an operational matter, in the first instance, for the Garda to determine whether and in what context it would require assistance from the Defence Forces. The basis for the deployment of members of the Defence Forces in aid of the civil power is, therefore, clearly set out in the section and the question of the development and publication of guidelines in relation to deployment does not arise.

I will move to amendments Nos. 23 and 24 in the names of Sinn Féin Senators and Senator Keogan, respectively. They propose reviews of the operation of Part III of the Act. There is a requirement in the Standing Orders of Dáil Éireann for a post-enactment report, and indeed in the Standing Orders of Seanad Éireann. What these amendments seek to do is to place a statutory obligation on the Minister for Defence to produce a report within a year and to come back before the House. As Senators know, there is already that requirement to put a post-enactment report together and that is to be done within 12 months. Amendment No. 23 would provide that the new Part IIIA would cease to have effect after three years unless a resolution approving its continuation was passed. I have already stated the purpose of the new Part III and these reasons will still be valid in three years' time.

I do not think we should be fearful about the fact that since the State was established, the Garda has requested, and the Defence Forces have provided, assistance in aid of the civil power. I believe everyone here thinks that should continue. All we are doing here is to put it on a statutory basis so the public and Oireachtas are aware of how these powers are operating, as opposed to the rather archaic system set out pursuant to the Defence Act from the 1950s.

Alice-Mary Higgins (Independent)
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The amendments that I put forward were simply looking for the public to know how these powers operate. The Minister said that this is a substantive change to the system. It is a new system. It is perfectly legitimate that we would ask about the new system. The Minister is leaning on the past but telling us there is a substantive change and the past system is outdated. If it is a substantive change, as the Minister described it, and a new system, it is legitimate that we would say we should make it transparent.

The Minister is saying that this measure is to put it on a statutory basis so that the public and the State know what is happening, but we will just know that the Minister will know things. We will not know the conditions that are attached to the approval of decisions. There is no guarantee of those being published or us knowing what they are. The case or classes of assistance and statistic information that is produced by the Defence Forces may happen under the current "old" regime, to include the reasons why the C70 was issued and granted and so forth. If we have a new system that the Minister is putting in place, where the Minister is designating classes of assistance, why should the list of those classes of assistance not be published? The Minister tells us that the Defence Forces' report may include it. No, the Defence Forces' report included the old system, under the C70s. The Minister is introducing a new system with ministerial power to designate certain categories and classes of assistance where the Army may be deployed. We simply asked him to publish them. That is not something to which the Minister is agreeing.

Amendment No. 21 is similar. It proposes that if the Minister is introducing a new class of assistance, he should update and publish a list. The thing is that what people use armies for changes. The following is a slightly different example but it is a time I remember. We debated Operation Sophia in the Seanad. Government Member after Government Member stood to say they were proud of the Navy because of what it was doing on search and rescues. I am incredibly proud of the Navy because of what it does in search and rescue. However, what the Minister was saying was that the Navy was moving from a primarily humanitarian focus to a primarily security focus. What was happening was that we were being told to look at the past and all the great things we did, and making that the rationale for voting for the new power, but under the new system the Navy stopped doing search and rescue. It joined Operation Sophia and moved to a security function and the Navy started to be used primarily for security functions in the Mediterranean Sea rather than search and rescue. That is just an example. It is, I know, a different one, but it is an example that shows us that we need to look at what is in front of us and not lean on what was done in the past and all the wonderful examples of that. We need to look at the proper structure of accountability for the new, substantive changes to the system, as the Minister has described them.

That again brings us to the class or classes of assistance and the kinds of conditions that are attached. Most crucial, as I say, is the question of the guidelines for directions so there is an understanding for the public. The Minister says he is looking to provide transparency for the public but the public is being told that we are going to have guidelines; full stop. We are simply asking the Minister to publish the guidelines. Do not just develop guidelines but publish them. If it is the case that the Minister wants to put everything on a clearer basis, have more transparency and a statutory basis for all these things so we all know how and why they are happening, let us actually know how and why, and under what conditions and with what guidelines, they are happening. My three amendments straightforwardly looked for elements that are already going to happen under the new system, as the Minister has described it, to be published and to be publicly available information. I do not understand why those amendments are not being accepted.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Senator. I will be succinct in response. To date, all that information is being published on an annual basis in the Department of Defence and Defence Forces report. I suspect that most people in the Houses of the Oireachtas, this House and the Lower House, were not aware of that report or the level of detail within it. That level of detail will continue and that is recognising the importance of giving this information to the public. It is in the public domain already in the regulations that are there at present. There is nothing specifically about it having to be published. It will continue to be published into the future.

Maria McCormack (Sinn Fein)
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I thank the Minister. I am still not entirely satisfied with the reasons for bringing in this measure. I understand he is saying that this legislation needed reform because it was over 60 years old. Why did it just happen at that time? It seems to be a strange coincidence that the exact wording in this new legislation seems to be the same wording that the Minister used when he was going to call in the Defence Forces.The provision refers to "approval for the deployment of a member of the Defence Forces in aid of the civil power". Those are the exact words that the Minister used when he was going to deploy the Defence Forces during the fuel protests. I am alarmed by the fact that the Minister has said indicated that all of this is in place already and that the Defence Forces are deployed for many reasons, including locating missing persons. Everyone wants to see these powers being strengthened for those reasons, but they are already there and are already being used. Are we just supposed to accept that these powers can be used for any purpose? I accept that we need new legislation, particularly as the Defence Forces may need to be called in at any stage. However, we do not know what that need might be. Mary, Joe and Paddy could decide to have a protest outside the gate, but who decides that the Defence Forces need to be called in? Where does this begin and end?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The Senator raised four points. First, the language that is used in respect of aid of the civil power is also used in section 90 of the 1954 Act. That is language that has been in place for over 60 years. Second, the reason new wording is being put in by way of legislation is to modernise it. The Defence Act 1954 is out of date. Everyone in the House will appreciate that there is a benefit in modernising a provision such as this.

Third, the Senator is trying to suggest, although she did not state it, that the reason for this statutory provision is as a result of the fuel protests. As I said before, and as is publicly provable, this was announced by the Minister, Deputy McEntee, and discussed in March, way before there were any fuel protests.

Fourth, we will use the protests as the example of when the provision was used. The Garda recognised that it did not have the vehicles necessary to remove the very large vehicles that were blocking critical infrastructure, including refineries. The Garda knew that the Defence Forces had the relevant equipment, namely large trucks. A chief superintendent in one region put in a request to the Defence Forces in another region seeking the use of those large trucks to remove vehicles. Subsequently, a response was received. That is how it operates. It operates on the basis of what is needed in the here and now. That is why a request for members of the Defence Forces to be present during the search for the remains of Michael Gaine was submitted.

What we do not want to happen, I am sure, is for Senators and Deputies to be the people deciding whether or not the Garda needs to request information. Gardaí make the requests. They decide in respect of which areas it needs to be requested. If that happens, it has a political consequence as well on certain occasions, and it can be announced.

This provision gives it even greater democratic legitimacy because it is elected and appointed Ministers and members of the Executive who will be involved. The section states that the Minister for Defence may "give general approval for the deployment of a member of the Defence Forces in aid of the civil power for such class or classes of assistance as may be agreed with the Minister for Justice, Home Affairs and Migration." When looking at aid in terms of the type of classes, the information we see is readily available in terms of the four preceding years and will continue to be available.

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

In page 19, between lines 17 and 18, to insert the following: "(3) When requested by a committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas, the Minister shall publish information in relation to the conditions attached to the approval of decisions under subsection (2).

Eileen Flynn (Independent)
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I second the amendment.

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

In page 19, between lines 17 and 18, to insert the following: “(3) The Minister shall publish, on an annual basis, the class or classes of assistance as agreed with the Minister for Justice, Home Affairs and Migration, for which deployment of members of the Defence Forces in aid of the civil power has been approved.”.

Eileen Flynn (Independent)
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I second the amendment.

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

In page 19, between lines 17 and 18, to insert the following: “(3) The Minister shall publish a list of the class or classes of assistance for which deployment of members of the Defence Forces in aid of the civil power may be approved under subsection (2).

(4) Where the Minister wishes to introduce a novel class of assistance, he or she shall update the list published under subsection (3).”.

Eileen Flynn (Independent)
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I second the amendment.

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

In page 19, between lines 17 and 18, to insert the following: “(3) The Minister shall, in consultation with the Minister for Justice, Home Affairs and Migration, develop and publish guidelines for directions to deploy members of the Defence Forces in aid of the civil power under subsection (1).”.

Eileen Flynn (Independent)
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I second the amendment.

Maria McCormack (Sinn Fein)
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I move amendment No. 23:

In page 19, after line 40, to insert the following: “Review of operation of Part IIIA

40D. (1) The Minister shall carry out a review of the operation of this Part not later than 2 years after the commencement of this section.

(2) The Minister shall, following the review referred to in subsection (1), carry out further reviews of the operation of this Part at intervals not exceeding 5 years.

(3) A review under this section shall include an assessment of the exercise of powers under sections 40A, 40B and 40C, including the frequency and circumstances of their use.”.”.

Joanne Collins (Sinn Fein)
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I second the amendment.

Sharon Keogan (Independent)
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I move amendment No. 24:

In page 19, after line 40, to insert the following: “Review and sunset of Part IIIA provisions

40D. (1) The provisions of Part IIIA shall cease to have effect 3 years after the commencement of this section unless continued in accordance with subsection (5).

(2) The Minister shall, not later than 2 years after the commencement of this section, conduct a review of the operation of Part IIIA and shall lay a report before each House of the Oireachtas.

(3) A report under subsection (2) shall include—

(a) an assessment of the use in practice of the powers conferred under Part IIIA,

(b) consideration of the classification of different types of deployment of the Defence Forces in aid of the civil power,

(c) consideration of the thresholds appropriate to such classifications,

(d) consideration of the safeguards and oversight mechanisms applicable to such deployments, including in situations involving public order, and (e) proposals for legislative or administrative reform.

(4) The Government shall, having considered the report, bring forward such legislative or other measures as it considers appropriate having regard to the findings and proposals contained in the report.

(5) The provisions of Part IIIA shall not continue in force beyond the period specified in subsection (1) unless a resolution approving their continuation has been passed by both Houses of the Oireachtas.”.”.

Sarah O'Reilly (Aontú)
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I second the amendment.

Maria Byrne (Fine Gael)
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Amendments No. 26 to 35, inclusive, are related. Amendments Nos. 27 to 33, inclusive, are physical alternatives to amendment No. 26. Amendments Nos. 28 to 33, inclusive, are physical alternatives to amendment No. 27. Amendments Nos. 26 to 35, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

Maria McCormack (Sinn Fein)
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I move amendment No. 26:

In page 23, to delete lines 18 to 35, and to delete pages 24 to 27 and in page 28 to delete lines 1 to 3 and substitute the following: “Amendment of section 19A of Criminal Evidence Act 1992

22. The Criminal Evidence Act 1992 is amended by the deletion of section 19A and the substitution of the following:

“19A. (1) In this section—

“competent person” means a person with relevant training, study or experience in counselling;

“counselling” means the provision of support, advice, therapy or treatment to a person;

“counselling record” means any record made by a competent person in connection with counselling provided to a complainant in a sexual offence case;

“court” means the Circuit Criminal Court or the Central Criminal Court;

“sexual offence” has the same meaning as in the Schedule to the Sex Offenders Act 2001.

(2) In proceedings for a sexual offence, counselling records shall be treated as hearsay, and any statement within them as an out-of-court statement tendered for its truth, regardless of form or expression.

(3) Notwithstanding any rule of law, counselling or therapeutic records relating to a complainant shall not be sought, inspected, disclosed, produced, or admitted in evidence in such proceedings.

(4) Subsection (3) applies to all records created in the course of counselling, psychotherapy, psychological support, mental health treatment, or related services.

(5) No application may be made to a court for the production, inspection, disclosure or admission of records to which subsection (3) applies, and any such application shall be void.

(6) No person shall request or seek such records, whether from a record holder, a complainant or otherwise, and no record holder shall comply with any such request or purported order.

(7) A court shall not order, direct or invite the production or disclosure of such records.

(8) Nothing in this section prevents a complainant from voluntarily disclosing their own records, provided such disclosure is not solicited by any party.”.

Pauline Tully (Sinn Fein)
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I second the amendment.

Maria McCormack (Sinn Fein)
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I listened back to the Minister's comments on counselling notes in last week's debate, and I listened again to the lived experiences of people who have given their testimonies. They have been read out throughout these debates in the Houses and in committee. Banning the disclosure of counselling notes is about recognising that they are hearsay evidence and rebalancing our justice system so that there is not only a fair trial but a fair justice system for victims and survivors. I welcome the victims and survivors to the Gallery today. We have heard of the additional trauma caused by the disclosure of counselling notes, including from women who were asked about personal family matters totally unrelated to the case by lawyers for the defence. It was information they could only have obtained from the counselling notes. This is what I would like to focus on.

We have heard how the disclosure of counselling notes deters people from getting the counselling they need when they need it. What we have not heard, but what I have asked for, is evidence or examples of where counselling notes secured by the defence have materially impacted on court cases. I will read part of a letter I received from Paula Doyle, who is in the Chamber with us. She is a campaigner for a ban on the use of counselling notes:

My counselling was supposed to be my place where I could begin to heal my broken life, to process the trauma and, in my case, save my life. My four and a half years of sessions before trial were filled with flashbacks, triggers, suicidal thoughts and a time in my life where my nervous system was on constant high alert. During the investigation, it was found that the person who had been stalking me for three and a half years previously ended up being my rapist. It took so much of me to report this crime and I expected that the legal process might be hard, but cross-examination during the trial is horrendous. Instead, my counselling notes were taken and used in court. My healing journey and survival responses were presented in court by the defence as inconsistencies, unreliabilities and that I was unstable. The notes that were used were of no reference to the actual rape but were fragments of my new, broken existence that would be used by the defence to discredit me on the stand as a woman, a partner and a mother. I was asked by the defence what type of a mother I was. After replying that I felt I was a good mother to my five children, the defence barrister, before turning to the jury, said, "But you can't hug your children."

This was not the only incidence of the use of my counselling notes in court. See the violence didn't end with the assault. It continued when my counselling notes were used in the courtroom, ripped apart, stripped bare and I was mentally violated again, but this time by our Irish justice system. Not a lot has changed over the past decade for victims. The defence are playing clever now as they can't ask what the victim was wearing or his or her sexual history, so they now prowl through a victim's counselling notes for an assumption that by examining these her background, her behaviour, her traumatised and hijacked memory, that it will help them [prove] that she somehow implied consent. This is not just unfair. It is absolutely devastating, it is disgusting, it is extremely dangerous and it is psychological harm.

Those were words from Paula Doyle sent to all of us Members. The current updated provisions from the Minister do not introduce the statutory presumption of non-disclosure that was publicly promised. Instead, they create a two-stage gatekeeping test, which is a different and weaker legal mechanism. A presumption would have set the mandatory starting point and shifted the burden of proof, while a gatekeeping test merely filters the applications. Without an express presumption, the courts are not required to begin from a position of presumptive non-disclosure, which is what the Minister indicated he would deliver. I know Rape Crisis Ireland has engaged with the Minister on this matter and was of the view a commitment had been made that disclosure would only occur where there was a real risk of an unfair trial. This has not happened. Instead, we have the introduction of provisions in relation to the interest of justice. These need to be dropped. Amendment No. 34, tabled by Sinn Féin, would ban the disclosure of counselling notes. This is what is needed and what victims demand. This is the Minister's final opportunity to introduce a ban on counselling notes and protect future victims. I urge the Minister to please accept amendment No. 34.

Patricia Stephenson (Social Democrats)
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I welcome the survivors and their supporters to the Chamber. They have been following this through the Dáil and the Seanad and will, I am sure, continue to follow this issue closely. The Labour amendment that was brought in last week and co-developed with the Dublin Rape Crisis Centre was a compromise but the Minister would not meet survivors and front-line response services halfway with that amendment. For that reason, I am supporting amendment No. 27 and the other amendments calling for an all-out ban. The Government is killing the only workable solution. I will not vote against stronger protections for survivors because the Government has chosen not to meet those survivors halfway.

I do not believe the provisions the Minister outlined in the Bill will do anything to protect survivors from the cruel and barbaric practice of their intimate counselling notes being weaponised against them at trial. I want to express my opposition and the emphatic opposition of the Social Democrats to the disclosure regime proposed in the Bill. It does not keep the promises or meet the commitments the Minister made in February of this year. Survivors deserve the strongest possible protection and the regime proposed does not provide it, simple as. Contrary to what the Minister has repeatedly promised to victims and survivors, the proposed regime is seriously flawed and will not prevent the practice of routine disclosure applications for counselling notes in sexual assault and abuse cases.

In Ireland, fewer than 5% of people who have experienced sexual violence ever report it to the Garda, which highlights a fundamental lack of trust in the system. It is for good reason that many survivors do not trust the system. Last week, the Central Statistics Office, CSO, published troubling new figures that show a 15% drop in the number of recorded sexual criminal incidents in the year to quarter 1 of 2026 compared with quarter 1 of 2025.As the Dublin Rape Crisis Centre, DRCC, has noted, this extremely concerning trend suggests not that sexual violence rates are decreasing - we know that is not the case, and we have plenty of reports that contacts are up in the past year, which is deeply concerning in itself - but that people are becoming reluctant to seek justice. It is there in black and white. We are creating a system whereby people do not want to come forward. They are scared of doing so because they are scared of the implications.

While front-line organisations like the DRCC report an unprecedented surge in demand for services, including therapy services, the figures show that we are seeing a potential decline in the willingness of victims to report offences. The horrifying reality is that the adversarial justice system clearly does not command the confidence of sexual assault victims and clearly discourages them from seeking justice. We have a system within which the forced disclosure of deeply personal counselling notes is one of a litany of obstacles that survivors must face. No survivor of sexual assault, rape or sexual abuse who has had the courage to seek counselling should ever have to fear that their words could be twisted and used against them should they seek to pursue justice through the courts.

We know that for many survivors of rape and sexual violence, counselling is a crucial and essential part of their recovery. It is not optional; it is where they begin to process trauma, rebuild trust and regain control of their lives. How can we stand over a system where these notes can be weaponised, as they routinely are, not in the interests of a fair trial, but solely to discredit the system? It is cruel and is symptomatic of an ingrained misogyny and a system that is stacked against sexual violence survivors every step of the way.

We have a situation whereby survivors of sexual violence are choosing not to seek counselling. They are choosing to opt out of therapy on foot of a fear that their most intimate discussions with a clinical therapist will be used against them. The DRCC has documented this. We are creating a dichotomy or a binary between getting therapy and getting justice. Getting justice is part of the therapeutic process as well. They are actually intertwined, so we cannot create a binary. For many people, if they have not gone through the justice process, if they have not held their perpetrator to account, then they cannot pursue the healing process fully. To see that person not face any retribution for the crime that was done against them, the trespass that was done against them, the physical trespass against their body, for example, can block their ability to pursue wellness in the future and develop their health again. We see that a lot in historical cases, where people go back decades later because they have not been able to move on without seeking that justice.

The idea that third-hand accounts written subjectively by a therapist, which are simply that therapist's interpretation of what the victim-survivor has recounted to them, can be used as some sort of legitimate form of evidence is mind-boggling. Counselling notes are an interpretation. They are recounting a horrendously traumatic event or events. There is a plethora of research that describes how trauma impacts memory, and in particular, body trauma, the physical trespass that has been done to someone's body. When somebody has been sexually abused or raped, body trauma has a specific impact on memory and timelines. Everyone here knows that. I am preaching to the converted. This practice of someone's therapeutic counselling notes, which are there as a tool to help them build and recover, being used as some form of evidence is nonsense. It is not a CCTV camera. It is not testimony by a witness. It is someone's personal, most intimate conversation with someone that is designed to support them. The Minister knows this. That is why it is so hard to understand why we have a situation where this legislation simply is not strong enough. The compromise that DRCC and Labour put together in the Dáil and Seanad has not been met. That was a compromise. Even with that, we are not there.

We will continue to see deeply retraumatising practices that have a chilling impact on victim-survivors and stop them from seeking justice. It is a genuine barrier to accessing justice for sexual violence survivors. It is also at odds with our obligations under the Istanbul Convention with regard to improving access to justice for survivors of domestic, sexual and gender-based violence. This will not be doing that. Because we have had this really important public debate in recent years and months, driven by survivors, I might add, and because of all the hard work that survivors have done, it is also now in the ether. People will be following this. They will be following the news that comes out of this debate and how this Bill goes. It is going to have an even more chilling impact on survivors who are fearful of coming forward. They will say that the State did not improve it. The State did not listen. They fought really hard. They bared themselves publicly, which no victim should have to do. It takes really strong people to come forward and share their most powerful personal testimonies on the public record at committees. These testimonies exist for all time. We see the bravery and strength that takes, but we still will not have done anything for them. We will not have improved the system in any meaningful way.

What message does that send to women and all survivors of sexual and gender-based violence? We heard you. We saw you cry. We saw you bare your souls. We are sorry. We cannot fix the system, or we will not fix it.

We saw a textbook example of how counselling notes are routinely deployed by defence teams to undermine the credibility of survivors of domestic, sexual and gender-based violence in the recent child sex abuse trial of Jeffrey Donaldson in the North. I acknowledge that it is a different jurisdiction, but it was a public case and is relevant to how the interpretation of memory is used to discredit victims. Complainant A in that trial had her counselling notes used against her when her counsellor had indicated in her notes that her memory was really poor or bad, as is the case with body trauma. The defence team cross-examined the victim-survivor and tried to undermine her testimony on the basis of the counselling notes. That is completely barbaric. In the end, as we know, this man was convicted of heinous crimes.

I would like to quote Paula. There will be a bit of repetition here, but I think it is important. She has given me permission to use her testimony. Paula said: “The notes that were used were of no reference to the actual rape but fragments of my new broken existence”. That is what happens to memory. That is what happens to identity and to the sense of self after something like that happens. They took those fragments and they were “used by the [defence team] to discredit me on the stand as a woman, a partner and a mother.” The following is one of the most chilling parts of Paula's testimony:

The violence I experienced didn’t end with the assault. I was mentally violated against but this time by our Irish justice system. The government cannot claim to support mental health while allowing trauma symptoms to be weaponised.

Like it or dislike it. Disagree with me. Disagree with Paula. The facts are that people going through the courts will, after the enactment of this legislation, continue to have their counselling notes used as evidence of what happened to them, what horrific thing was done to their body, the violation and trespass against them and their physical personhood. We have to vote on that today. It is deeply uncomfortable for me that, after all of the public debate, we will still find that situation, and it will still go ahead. I cannot fathom how we can allow this to happen. I cannot fathom that when we talk about tackling gender-based violence and our zero-tolerance strategy, this will continue to prevent women and all victims of sexual violence from coming forward. They believe they do not have protection. They do not have the security and protection of knowing that their counselling notes will not be used. There is no guarantee.

Pauline Tully (Sinn Fein)
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I want to speak in support of amendment No. 26 and any of the amendments that call for an outright ban on the use of counselling notes in cases of sexual violence and rape. If any of us knows a person who has been raped or sexually assaulted, they will know the life-changing and devastating impact it has. They will also know how vital counselling is in the context of trying to address the trauma, process what happened and put a devastated life back together. If these amendments are rejected, this legislation risks deterring survivors seeking counselling and therapy in circumstances where that help is much needed.The relationship between a therapist and a client should be confidential. What they discuss should be confidential. The relationship should be one of trust. It is not produced for the purpose of evidence. It is not a verbatim account. They are clinical records that are disjointed. They show how a person is feeling at one point in time. They can and have been misinterpreted. They have been used to imply inconsistency. They have been misleading and used to undermine a victim or survivor. They have been taken out of context and tried to be used to imply consent.

I want to commend the survivors who are sitting with us in the Gallery today. As many have said, the violence is not just the act itself. The court process is so retraumatising, in particular where your notes - your own personal attempts to address what was done to you - are used against you to try to undermine you. It is just completely wrong. It is psychological harm. We have to protect victims and survivors. We have to ensure they are not harmed more than they have already been. The justice committee, which is a cross-party committee, advocated a complete and unconditional ban on the use of counselling notes and the Minister chose to ignore that. We know in cases where they are seldom used by the prosecution, they are used by the defence in an attempt to undermine the victim.

I am horrified that this practice was ever permitted but I cannot get past the fact that it may continue as well. We are just retraumatising survivors and it has to stop. If this was the Minister's relative - his daughter, sister or mother - would he want them to have to go through this? If this horrific event happened to them and they sought counselling to try to help to rebuild their lives and address their trauma, they should not have to listen to that in a courtroom. It is personal and private and it should not be used against them.

Alice-Mary Higgins (Independent)
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I mentioned it on Committee Stage and I will mention it again because I think it is a fundamental issue here. The approach that the Government is taking here and that the Minister has chosen to take, despite the testimony he has heard from survivors, is not in the interests of justice in itself. When we talk about "in the interests of justice" - the phrase can and, I fear, will be abused as it is used in the Minister's legislative proposals - the crisis of justice we face and the Minister faces and presides over is a crisis of confidence in the justice system for a very good reason because of the experience of people. There is a crisis of confidence not just among those who have experienced violent or sexual assault or abuse, but also across the entire country among the public. We have heard the statistics. I referred to the 71% of victims who will not and do not report to the Garda. These are huge numbers. The vast majority - almost two thirds - will not and do not report violence they experience to the Garda in this area because of the system that is in place and because of the perception - this goes to the wider piece - of 76% of the public. It is not just survivors who feel that, as 76% or over three quarters of the general population believe that victims of sexual violence are going to get a hard time in a trial.

There is a problem in that the wide, general perception is that victims of sexual violence get a hard time in our trial system. A big part of that is the fact that the victims feel that they are going to be put on trial and dragged through the coals. That is the common understanding of the public and that feeds down to the fact that so few people who experience these assaults come forward. The Minister has a real problem when there is a very large area of criminal activity where the public does not have confidence in how the legal system will treat it and where victims do not have confidence. Of course, because these are predominantly women, this is a gender issue as well because you are looking at a huge part of the population that feels that if violence is done to them in a sexual way, they are not confident in how they will be treated.

It can only add to that perception and experience when you see again the fact that, despite what the Minister has been told - the evidence and the testimonials - we are going to come out of this supposed process of potential reform with this situation regarding a person's most intimate and personal testimony. It is not even testimony but personal discussion. It is effectively hearsay. These are the notes, the discussions and the process of thinking things through that somebody does with a counsellor. Not only that; they are not even transcripts of that. They are the counsellors' interpretation of what they say. They are effectively hearsay on a very intimate and private conversation. The Minister gave the example of somebody wanting to demonstrate that they had raised an issue previously, but that is where the issue of it being solely with the consent of the person comes in. On the idea that that piece of conversation may be used, I refer to the process itself. We have this filter. At a minimum you know that your counselling notes will be given to a stranger to discuss and examine whether they, on balance, think it is a good idea that they should be used. The very fact of this filtering process already breaches that sense of the privacy and intimacy and the important dynamic of the conversations that are had.

There is also the problem of the damage that is done to people when they are made afraid to go to the Garda and the damage that is done to people when they are made afraid to seek counselling. There is also the damage that is done when ordinary people who have experienced horrendous things come forward to the political system to share their testimony and genuinely seek that it be reflected in legislation but they are seen to be not listened to. One of the things that comes up in that whole world around the idea of the propensity of sexual violence and violence against women is this thing of "believe women". What has been asked of the Minister is to believe women who have experienced sexual violence, who have told him the laws he is proposing will have a negative impact on them, and who made that clear when they talked to the committee. That was why it was reflected in what the committee recommended.

I refer to the compromise language around the presumptions of non-disclosure. I am supporting the amendments that will look for a full prohibition but the compromise language was not even listened to or engaged with. We have a dilution of a compromise put forward by the Government. The chilling effect on the seeking of healing, justice and engagement with processes of legislative change, all of that, is a really heavy piece to come out of this process with. The Minister said he is confident that this is going to solve it but people are telling him that it will not.Where is the review clause? There is the statute, but what happens with the statistics? Is the Minister expecting that suddenly we are going to have 50% of people coming forward? There is that crisis, which is the Minister's responsibility to address, of the fact that the majority of people who experience sexual violence are not coming forward. That is going to be part of the test. It is not like prosecutions that we get or do not get. It will be the fact of people who choose to engage or not engage with the system. If the only thing the Minister can offer them is that we will have a new filtering system before their counselling records are used and if that is all he is offering, I do not see the 71% of people who do not report going down to 50% or 40% or 10% or the fact that 100% or 80% or 90% of all those who wish to and should feel confident in going into our legal system and seeking justice. There is not any other area of offence where there are so few people who will report or engage. That is the challenge that was put. That is the challenge that is there in the interest of justice and for justice to be seen to be, understood to be and felt to be done in the State. What the Minister has offered does not deliver for that.

Our amendments are in respect of the prohibition, including, in amendment No. 27, a provision that "A counselling record shall not be disclosed in any criminal proceedings unless the complainant has consented to the disclosure". When we look at the issue of interest of justice, it is unclear. The Minister said that the interest of justice could be that this adds evidence for the prosecution. Let us talk about the person who has complained. If the Minister was accepting the amendments whereby it was done only where there is the consent of the complainant - and only in those circumstances and no other circumstances - then they would already have a recourse in relation to that matter. The interest of justice is very wide. It is not confined to being used solely by the complainant or the person on whom an assault is being prosecuted. It can be used in lots of contexts. Justice is exactly those things. Justice could be around creating an impression of consent and creating dilution. For example, there are incidents of persons who were abused as children have had the fact that they were abused as children used against them in the context of having experienced other assault. It was a case of people having been traumatised in the past and this was just them reiterating and replaying those traumas they had in the past. It is not confined to what did or did not happen at a particular time and particular date and some useful facts, which would never be fact, because they are hearsay that come through in counselling notes. It is always and often used in terms of creating a dilution as to credibility creating questions of reasonable doubt and creating an ambiguity on the issue of consent or in its worse instances, in attempting to abuse the character of a person who is seeking justice.

Those are the kinds of ways these things get used. Under the Minister's legislation, I am not confident that they will not be used in those ways in the future because the interest of justice is a very wide provision. That is why that as well as the amendment in relation to the prohibition, we also have an explicit amendment removing some of that language around "in the interest of justice" and confining these uses to the situations of an unfair trial, which of course, could be an unfair in either context.

Aubrey McCarthy (Independent)
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I thank the Minister for being here. I welcome the opportunity to contribute to this important debate. At the heart of the legislation is a simple question. How do we protect the right to a fair trial while also protecting those who have already experienced trauma? There have been examples given. There are visitors in the Gallery and Paula's own story was given. The legislation must and can do both. Counselling is one of the few places where survivors of abuse, sexual violence and domestic violence get the opportunity to speak freely. It is where they begin to process fear, shame and trauma. They do so believing that what they are saying is confidential except in the most exceptional circumstances, which are provided for by the law. If people begin to fear that their counselling notes could routinely become part of a criminal trial, many then will simply stop talking. The Minister knows that I am involved in Tiglin. We have a women's refuge. Some of the women have told me that if this became the case, they would avoid counselling all together. It would involve censoring themselves. That would be a huge tragedy for themselves and not just for themselves for healing from the trauma but also for society.

Before entering politics, I spent 20 years working with men and women who have come from a traumatised background. Since this legislation came to public attention, I have been contacted by many women asking whether it will automatically mean that their counselling notes will be disclosed, whether, if I was in their shoes, I should stop going to counselling and whether what they tell their counsellor is really private. The fact that survivors are asking those questions should concern us all in this House. Counselling notes are not statements prepared for court. It is where somebody feels vulnerable enough to share what has happened to them. It is often the case that when people are vulnerable, they start questioning themselves and asking whether they led that person on, which would not be the case but people start to question in a very protected place with their counsellor. These should not be police reports or forensic reports. They are often a record of somebody's healing journey where memories are explored and emotions are expressed and then their trauma is processed. They are written strictly for therapeutic processes and not evidential ones.

Of course, the rights of an accused person are fundamental. Every person must be entitled to a fair trial. Nothing should diminish that. Victims, however, such as Paula who has been mentioned here, have the rights. They need the right to dignity and privacy and to recover from that trauma without fearing that the most intimate conversations that they have had with a professional counsellor may later be examined in an open court unless there is a compelling and clearly justified reason for doing so. That is why the threshold for disclosure must be exceptionally high. Applications should be based on genuine necessity and relevance, not speculation or used as fishing expeditions. Judges should continue to act as careful gatekeepers weighing the justice, of course, against the real risk of causing further harm to the victims, as Senator Stephenson said.

Over many years, we have encouraged survivors to come forward - that has progressed over recent years - to report abuse and seek counselling. We should not undermine all that progress. If we even have a small number of victims deciding not to help themselves because they fear that counselling records may be later exposed, then we fail and fail badly. This legislation is much more than about legal procedure, it is about trust. It is about trust in the justice system. It is trust that when somebody takes the brave step to ask for help that we protect their rights but we also protect their dignity. I hope that in this House we can continue to uphold the constitutional right to a fair trial but also the equally important principle that counselling must remain a place of safety, healing and hope.

Laura Harmon (Labour)
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Cuirim fáilte roimh an Aire. As I am conscious that we may have a guillotine at 6 p.m., it is important that we try to get to all the amendments, if possible. I intend to move amendments Nos. 28 to 30, inclusive, and No. 32.

From the outset, I am proud of the Labour Party's efforts in relation to this and the counselling notes piece. Ultimately, personally and from a party perspective, we are against counselling notes being used in trials, as has been said by other Senators, survivors and the countless emails that we have received from professionals who are working in therapy and counselling. This is something that we are opposed to. We have put forward alternative mechanisms, which we wanted the Minister to consider. We in the Labour Party have done everything we can from our point of view on this. We have really tried to make this Bill better by working with the DRCC as well and taking legal advice in relation to that. I commend survivors on their bravery in speaking out and contacting us on this matter. There are people like Paula who have spoken out about their experiences. I cannot imagine how difficult that must be and it takes a lot of courage. I want to make the point that the justice system, I believe, is not doing right by survivors in the sense we already have low reporting rates. We already know there is a lot of retraumatisation that takes place when people do report. They seem to face barriers at every step along the way. This is something we need to address as a society. Counselling notes should not be used and weaponised against anybody and I am worried about any chilling effects as part of this.

I am also conscious the debate on this legislation has generated significant public interest and interest in the media. I would be very worried about the effects of this the debate and the messaging that is sent out to survivors and to those who are thinking of coming forward if they have experienced sexual violence and sexual assault. I hope there would not be a further chilling effect of people seeking counselling, therapy or support, or to report. I think it is really important. It is important to state as well the amazing work rape crisis centres do across the country and the likes of Women's Aid, the National Women's Council of Ireland and the many support groups that are there. There is support there for survivors but I believe that our justice system needs to do better for them.

From the outset, I will speak to a number of the amendments. We believe amendment No. 28 should be a straightforward, uncontroversial amendment. It asks the accused to genuinely make an effort to provide reasons that engage directly with the case at trial as to why the complainant's private records should be accessed. It does no more than this. The proposed criteria set out largely reflect the arbiter's statements in the Supreme Court AM case, which the Minister referred to on Committee Stage as having slightly alleviated the circumstances. In that case the Supreme Court described the operation of the section 19A process as profoundly problematic. Section 19A was not the issue being decided on in that case, however, and so the court's statements are not binding. It is incumbent now on the Oireachtas, as the legislator of the State, to enshrine the basic standards referred to in the AM case into the primary legislation that regulates these disclosure applications. Doing so sends out a clear message to accused persons and defence teams that it is not business as usual and applications to access the most intimate and private notes of complainants must be fully considered and reasoned before being made. Failing to introduce this minimum basic safeguard is incredibly difficult to understand.

In regard to amendment No. 29, as currently formulated the Government's proposal would allow the court to direct a record holder to furnish the DPP with the records sought, including counselling records, without survivor's consent and prior to the survivor even being notified of the fact of a disclosure application. This loose approach to the agency, autonomy and wishes of survivors is of grave concern and has been flagged repeatedly to the Minster since the introduction of this current proposal in May. We have provided an easy solution to this in our amendment No. 29 by removing counselling records from the relevant subsection.

Amendment No. 30 seeks to insert a stipulation that the court cannot order a disclosure of a record after a hearing unless it is satisfied the information contained in that counselling note could not be reasonably obtained by any other means. We believe this common sense safeguard would provide more protection for survivors by ensuring the bolstering of the presumption of non-disclosure that is contained elsewhere in our amendments.

Amendment No. 32 would increase the threshold for disclosure of counselling records to the accused to that of a real risk of an unfair trial standard. In the Government's proposal, counselling notes can be disclosed in the interests of justice. This is the same as the current threshold that applies. It is too low and its retention in respect of counselling notes will facilitate continued routine applications for disclosure in sexual assault cases. While there is reference in the proposed legislation to a real risk of an unfair trial, in substance this is superfluous where the interests of justice standard applies alongside it. Every case that meets the real risk of an unfair trial standard will also qualify for disclosure under the interests of justice standard. Simply put, the proposal should be read as enabling access to counselling records in the interests of justice, full stop. On Committee Stage, the Minister made reference to his reasoning for including the interests of justice threshold by explaining that there are many instances in which counselling notes are of benefit to the prosecution in a criminal trial. However, the legislation proposed does not limit reliance on the interests of justice standard to just the prosecution. The accused and the defence team can just as readily go to court to seek access to counselling notes on the basis they believe they should get access in the interests of justice. This can clearly arise even where there is no real risk of an unfair trial at play. If the Minister intends the accused should only access a complainant's counselling notes in cases where otherwise there would be a real risk of an unfair trial, then the lower standard of interests of justice must be removed in respect of counselling notes. The Minister stated on Committee Stage that his proposals will bring to an end the routine disclosure of counselling notes. How can this be the case if the test for disclosure is such a broad and weak threshold as interests of justice? I intend to move these amendments and again say that we have tried everything we can from a Labour Party perspective to ameliorate this legislation and protect survivors.

Garret Kelleher (Fine Gael)
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Ba mhaith liom ar dtús mo bhuíochas a ghabháil leis an Aire, an Teachta O'Callaghan, as ucht teacht isteach go dtí an Seanad tráthnóna chun an mBille a phlé agus chun éisteacht agus labhairt linn mar gheall air agus mar gheall ar na leasuithe éagsúla atá os ár gcomhair. Cuirim fáilte roimh Paula Doyle agus na feisirí feachtas eile atá inár measc, atá tar éis an-chuid oibre a dhéanamh chun an dlí a athrú. Cuirim fáilte rompu go léir.

Ó thaobh Cuid 8 den Bhille, agus go háirithe alt 22 atá os ár gcomhair, agus níos leithne fós mar gheall ar an mBille ar fad, níl aon amhras orm ach go bhfuil na Seanadóirí ar fad atá anseo agus an tAire atá ag labhairt faoi na leasuithe ag iarraidh dlí níos fearr a bhaint amach, agus a thuilleadh cosaintí agus tacaíochtaí a thabhairt d’íospartaigh éignithe agus ionsaithe gnéis, ach go háirithe mná agus cailíní.

I have no doubt but that everybody contributing to this afternoon's debate, and in particular this discussion about the use of counselling notes in criminal trials, does so in an effort to improve the law in a way that will better support survivors of horrendous crimes, and in particular of sexual violence and rape. The proposed section 22 seeks to rectify a flaw in the existing legislation under which a waiver relating to a restriction around the use of counselling notes has been used more extensively than had been initially envisaged. I thank the Minister for the time he has taken to discuss this matter with other Senators and me, in relation to the legislation we are discussing today. It is very important to point out, and is obvious from the contributions thus far, that there is still a feeling among victims and groups representing victims and survivors that our criminal justice system - the very system that is intended to protect and support our citizens - is failing survivors because of the retraumatisation and additional suffering felt by victims due to the potential availability of personal sensitive information disclosed during counselling sessions to those accused of horrendous crimes against them and the legal defence teams representing them. The case of Paula Doyle has been mentioned on a number of occasions by various contributors to the debate so far. It is important to point out that Paula is a phenomenally courageous campaigner who seeks to improve the law, as we are all trying to do here today, so that what happened to her will not happen to victims in future years.Our job is to try to make the legislation as robust as possible in that regard.

Senators McCormack and Stephenson made reference to the case of Ms Doyle. I will not go over what Senator McCormack said in detail but it was expressed articulately by Ms Doyle in her email to us all. In relation to that case, on 56 occasions during the course of counselling, Ms Doyle made reference that what happened to her was her fault. She now realises, having gone through the whole process of dealing with the trauma that resulted from her rape, that it was not her fault. Those 56 instances were still referenced by the legal team in defence of the man who was subsequently convicted of her rape. The character assassination and discrediting of rape victims through the use of counselling notes has been referenced. It is very important we do everything in our power to make that a thing of the past and to be as victim-centred in our approach as possible. Another thing put to Ms Doyle during what she described as her horrendous cross-examination was that she said she was no longer the woman her partner fell in love with. That again was used in an effort to discredit Ms Doyle and it was a horrendous experience for her to have to go through. That is something we have to make sure is in the past with the passing of the legislation today in how we deal with victims of sexual violence. We must make sure not just that the laws are about punishing those who have committed horrendous crimes, largely against women and girls, but also that the women and girls who have been subjected to these horrendous crimes receive the support they deserve. We must ensure our criminal justice system is compassionate in that regard.

I have discussed this with the Minister on a number of occasions. I have a concern about the specific reference to the presumption of non-disclosure. It is not implicit in the legislation before us. It is referenced in some of the amendments. I would like it to be given the consideration it deserves. Like others, I would be delighted if we could accept that counselling notes are a matter between an individual and the counsellor to whom they turn for help but as was referenced on previous Stages of this Bill, there is a fear there will be a legal challenge on the constitutionality. I accept that. It has also been accepted by the Labour Party and Dublin Rape Crisis Centre.

I will reference another case. I will not mention the person by name because I do not have her permission to do so. She is a victim of rape who appeared before the Joint Committee on Justice, Home Affairs and Migration. She said, and I am paraphrasing, that counselling saved her life but if she had been aware that the notes from her counselling sessions would be used against her in court, she would not have gone at all. Senator McCarthy made the valid point that counselling notes are not legal documents, nor are they written by legal professionals. They are an account of the intimate and personal conversations between victims of horrendous crimes and the professionals to whom they have turned in an effort to rebuild their lives. If it were possible and legally sound to completely ban the use of counselling notes in criminal trials, I would favour that. However, with respect to what has been said on previous Stages of this legislation, that unfortunately is not the case. It is our job to make the legislation as robust as possible to ensure it is victim-centred.

A number of the concerns raised with me relate to how permission is obtained for counselling notes to be disclosed. It is my understanding that up until now, the DPP would via An Garda Síochána contact the victim to request the person's permission for counselling notes to be disclosed and consent would be given. In subsequent conversations I have had, there seems to be a question mark over whether that consent will continue to be requested and necessary. I ask the Minister to reference that point in his concluding remarks. In the event of the legislation passing, I ask the Minister to make reference to the intended review of the legislation and the likely possible timeline for revisiting the legislation in the event that it proves to be not as legally robust as intended, with specific reference to the presumption of non-disclosure.

Chris Andrews (Sinn Fein)
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Victims and survivors like those here in the Gallery believed the justice system would protect them, expected they would get justice and thought justice would help them to heal. If their personal notes go to their abusers, they will be retraumatised and they will not get the justice they need and deserve. The example of Paula is a concrete example of where handing over notes to an abuser damages everybody - the justice system and victims and survivors. Survivors are now debating whether they choose between counselling or court because they do not believe they can do both. The Minister has the chance to change this and allow survivors to heal by doing counselling and going to court. It is really important to ensure counselling notes are not handed over, retraumatising survivors and victims. I support these amendments.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank all Senators for the amendments. I acknowledge the extraordinarily powerful contributions I have just listened to. Sometimes Senators do not realise the impact of their speeches and the passion with which they speak. I want them to know I have been enormously impressed by it. I have listened carefully to what everyone has to say.

I also acknowledge in the Gallery Paula Doyle and other survivors. I want to say to Paula and other survivors that you probably are not aware of the extent of the impact you have on policymakers such as myself and lawmakers such as Members of the Seanad. The reason we have been having this debate for the past three years, being frank, or more is because of the advocacy of people such as Paula Doyle and other survivors of sexual abuse. The reason I was in this House a couple of days ago discussing the domestic violence register legislation going through the Houses of the Oireachtas is the impact of the death and murder of Jennifer Poole, another victim. Her memory and the impact of what happened to her is influencing policymakers. The reason we were discussing and debating the Guardianship of Infants and Child Care (Amendment) Bill 2026 yesterday in this Chamber is Valerie French and the influence her murder had on her family and on us as on policymakers to recognise that area of the law needed to change.The reason we may later be discussing sex for rent legislation is because of the advocacy of Senator Harmon, who is advocating on behalf of other women who are the subject of what in effect is violence against them because of their gender. It is important for me, as Minister for justice, to state at the outset that victims and survivors such as Paula Doyle should not underestimate the impact they have on policymakers. It is important we all acknowledge that, and it is apparent from the contributions of Senators that survivors have had an impact on them and on their advocacy during the course of this debate. It is an extremely difficult issue. The great advantage of being an advocate with the passion Senators have is that they know absolutely what they want to achieve, and they look at it from the perspective of the voice they believe should be given the greatest say. I recognise that and commend them.

From my point of view, I have to balance other factors as well. I will start by saying something I said on Committee Stage, and which is important to emphasise. I think everyone in this House acknowledges that the current statutory position is unacceptable. Senators gave examples of how Paula Doyle was treated during the prosecution of her rapist. We need to recognise that happened under the statutory regime that is there at present, or which existed prior to the 2017 amendment, which we thought was going to resolve the matter. One thing that is absolutely sure is that the current statutory regime is unacceptable. We cannot allow the current statutory regime to remain. This is a contentious political issue and there are different views on it. Sometimes the advice given to politicians or Ministers like me who ultimately are the ones who have to make the decision and will be held responsible and accountable is to ask if we really need to make a decision about that now. People advise me that I should steer clear of that or kick it to a committee, send it for further deliberations and not bother changing the law because I will be criticised for changing the law. They say I should let it go back to another committee to see what can be done. I was not prepared to do that. The reason I was not prepared to do that is because of the unacceptability of the current statutory regime. The type of cross-examination to which Paula Doyle was exposed is still permissible because we are operating under that same statutory regime. Senator Harmon mentioned the AM decision, which is a significant decision, but the decision is not in the context of the statutory regime, and the Oireachtas and all of us here who recognise the unfairness of what is happening have an obligation to ensure that this legislation is changed.

We thought in 2017, when I was also a Member of the Houses of the Oireachtas, that this issue had been resolved. Unfortunately, it became readily apparent that it has not been resolved. I want the Senators to know that as Minister for justice I am not prepared to let the situation continue whereby counselling notes are provided routinely to the accused in sexual assault or rape cases and then used against complainants. I am not prepared to let that continue. It is for that reason that I have brought forward the amending legislation that is before the House today. I will look in due course at the amendments put forward by Senators, but I ask them to be aware of the significant changes I have proposed in Part 8 of this miscellaneous provisions Bill, and which will significantly amend section 19A of the Criminal Evidence Act 1992.

I will not go through all of the detail because many people will have read it but one of the criticisms being made is to ask where the presumption of non-disclosure is. My answer is that it is in subsection (11) of the new section I am proposing to introduce. It is in subsection (11), which is on page 27 of the administrative reprint of the Bill. We know there is a procedure that will now have to be gone through. It is set out in the earlier sections of the Bill, "Where, in criminal proceedings for a sexual offence, the prosecutor or the accused is of the opinion that an applicable record ought to be disclosed ... the prosecutor or the accused ... shall make an application ... in writing, to the court setting out" the reasons. That is the first significant change that must happen. A written application has to be made to the court.

What will happen under the new system is that there must be a court hearing adjudicated by the High Court or Circuit Court judge to look at and determine whether there should be any disclosure of the applicable record, which includes the counselling notes. When it comes to that, the presumption is set out in subsection (11) on page 27, which says, " A court shall not". That is what the Attorney General advises me. As somebody who has worked as a lawyer, that is what the presumption is. The court is being told it shall not do something: "A court shall not, after the hearing referred to in subsection (8), order disclosure of the content of the applicable record concerned to the accused, and where applicable, the prosecutor". Any judge looking at this will know the Oireachtas has told them they are not to disclose the applicable record. The presumption is not to disclose this record. There is then the proviso "unless".

Before I come to the "unless", I will deal with the amendments, which Sinn Féin have advocated and others are supporting, out of the best intentions I know, that we should simply ban counselling notes. I cannot do that because I have received unambiguous legal advice from the Attorney General that to do so would be unconstitutional. If I were to bring in one of those provisions and introduced them, we know that within a short period it would be challenged in the courts by an individual who was either being prosecuted for a sexual offence or had been convicted of a sexual offence and they would claim that they could not get a fair trial because there was a category of evidence that they would say contained information that was relevant to their guilt or innocence and that the Oireachtas said they could not look at. I am enormously affected and influenced by what survivors say about the impact of this, but what would be worse for survivors would be if I introduced legislation that was ultimately declared to be unconstitutional because there is no category of evidence anywhere in our legal system where the law says you cannot look at that evidence. If you look at civil law, people take actions against people for being damaged through their rape or sexual assault. In the context of those civil proceedings, where the remedy is damages, there is a process called discovery. In the discovery process, if I claim I have suffered severe mental trauma as a result of the actions of the defendant in a case, the defendant is entitled in the civil system to say they want to see discovery of my medical records. That happens every day in personal injuries actions. I would then have to swear an affidavit of discovery, which would discover any counselling notes I have. It would be highly unusual if in the context of criminal proceedings we said that this category of evidence was never accessible and you could not look at it, whereas you can in the context of civil proceedings, where somebody's liberty is not at stake. I cannot ban counselling notes.

On the other issue raised in terms of presumption, when it comes to the direction to the court, you do not disclose them "unless". The “unless” is first that the record is likely to be relevant to an issue at trial. That is not enough in itself. It also goes on to say, "one or both of the following apply ... there would be a real risk of an unfair trial in the absence of such disclosure". A judge looking at this, who will have access to a piece of evidence that may be contained within an applicable record, will have to satisfy himself or herself that if that is not handed over, there is a real risk of an unfair trial.That is a high threshold for any judge to have to overcome and is a high threshold in terms of what is in the content of the applicable record. Certainly, having listened to the examples of questions that were asked of Paula Doyle during her cross-examination, none of those questions would get over that hurdle. That is the first one about the risk of an unfair trial.

The other issue people asked me was about the clause "it is otherwise in the interests of justice to so order". It is obvious that the interests of justice are important in any case but the concern of this House is that is sort of vague and could be interpreted in a balancing way that would allow for notes to be disclosed, which are not probative as to the guilt or innocence of the accused but may be of some peripheral relevance. That is not how that will be interpreted. The way that will be interpreted and the reason the "interests of justice" are in is because, as Senator Harmon identified, there have been examples where counselling notes have been of use to the prosecution in criminal trials. They have been an advantage and used in terms of corroborating the account given by the survivor in a sexual offence trial. They also, I am aware, have been of use in terms of the counselling notes of an accused. So there can be disclosure of the counselling notes of the person being prosecuted where there are records corroborating that, in fact, he did tell his counsellor that he had sexually abused the woman concerned or had done something inconsistent with the narrative being advanced in the trial. That is why I say subsection (11) is a presumption against non-disclosure.

I am conscious people may wish to come in on this. Regarding what I have to do here, ultimately this is a balancing act between the right to privacy and the right to a fair trial. I do not want to see, as Senator Andrews said is happening, that women have to determine whether to go for counselling or go to court. That is not an acceptable choice. I want people to be able to do both. I believe both will be readily available as a result of the solution I am bringing here. I am considerably shifting the balance, which at present is with the right to a fair trial. I am moving it considerably over to the right to privacy. I am going as far as I can.

Sometimes when Ministers or politicians adopt a measure, they are uncertain of what the outcome will be. I am prepared to state publicly, and Senators will know in politics we are careful about saying things publicly, that I am very satisfied and believe that the statutory proposal and amendments I am introducing, along with the AM case in terms of what Mr. Justice Collins said at the Supreme Court, will resolve the issue that everyone in this House is concerned about. That issue is the routine disclosure of counselling notes to the accused in sexual offences trial and the unfair reliance upon them for the purpose of asking questions in respect of issues which are of no relevance to the underlying issue.

A final issue is that of the waiver and the consent of the survivor. The main problem with the 2017 resolution was that it provided for the waiver and it meant that people decided not to go through any hearing where the counselling notes could be looked at and appraised by a court and, instead, they were routinely handed over. That is the reason for the removal of the waiver. That is why it is important that in every case where there is any assessment of applicable records, not just counselling notes but all medical records as well, there will have to be a hearing where the court will look at them individually and say whether they should not be disclosed or that there is something in it that needs to be disclosed based on subsection (11) of what the Oireachtas said. I want to give people the opportunity to talk.

Mark Daly (Fianna Fail)
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The only person allowed back in to talk now is a proposer of the amendment.

Maria McCormack (Sinn Fein)
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There has been movement and I have to acknowledge that. I do appreciate the Minister's feedback. Once again, I have to commend Paula Doyle here in the Chamber with us and everybody who is with her and who has campaigned. Although she may feel like it is not a win when it is not a full ban, there is movement here and the process going forward is not going to be as straightforward for people.

I thank the Minister but I do hope he will review this very carefully-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I will, 100%.

Maria McCormack (Sinn Fein)
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-----given the information we have heard, everything that has come into the public domain and, as Senator Andrews noted, that victims and survivors are coming forward telling us they are having to choose between going to court or to counselling. We cannot have this situation and the mental health and impact of trauma this is having on society is detrimental. It is such a serious issue that I hope what the Minister is saying is correct and that this will start a reform of the justice system for victims and survivors.

Once again, I commend Paula on all her hard work. She is part of the change in this law, we all need to remember that, and it is very fitting that we give Paula a bualadh bos for all of her work on this issue.

Mark Daly (Fianna Fail)
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I join the Senator, the Minister and all colleagues in thanking Paula for what she is doing on behalf of all the victims.

Mark Daly (Fianna Fail)
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As it is now after 6 p.m., I am required to put the following question in accordance with the Order of the Seanad of this day: "That the Government amendments undisposed of, including those in respect of which recommittal would in the normal course, be required, are hereby made to the Bill, that Fourth Stage is hereby completed and the Bill, as amended, is hereby received for final consideration and the Bill is hereby passed." Is that agreed?

Maria McCormack (Sinn Fein)
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Not agreed.

Mark Daly (Fianna Fail)
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When is it proposed to sit again?

Garret Ahearn (Fine Gael)
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Next Tuesday, at 12.30 p.m.

Mark Daly (Fianna Fail)
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Is that agreed? Agreed.