Seanad Éireann - Volume 167 - 26 June, 2001

Offences Against the State (Amendment) Act, 1998: Motion.

Mr. T. Fitzgerad: I move:

That Seanad Éireann resolves that sections 2 to 12 and 14 and 17 of the Offences against the State (Amendment) Act, 1998 (No. 39 of 1998), shall continue in operation for the period of 12 months beginning on 30 June 2001.

An Cathaoirleach: I welcome the Minister for Justice, Equality and Law Reform to the House and call the Minister to speak.

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Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): The resolution before the House today seeks approval for the continuance in force of those sections of the Offences against the State (Amendment) Act, 1998, which would otherwise cease to be in operation on 30 June 2001. Members of this House will need no reminding of the circumstances in which these provisions were enacted in 1998. The Omagh bomb in August of that year was the single worst atrocity in the conflict in Northern Ireland. It gave rise to universal revulsion and to a determination, nowhere more so than in this House, that those responsible for this mass murder would not succeed in subverting the democratically expressed will of the people on this island that the conflict should be resolved only by peaceful means and on the basis of consent. One person is currently before the courts on a charge related to the Omagh bomb and the investigation is continuing. The Garda Síochána will never give up the search for those responsible.

The intention of the Oireachtas in enacting the 1998 Act was to strengthen as far as legitimately possible the provisions of the Offences against the State Acts dealing with subversives, to enhance the capacity of the Garda Síochána and the criminal justice system to deter and detect those who would seek to subvert the democratic order and impose their undemocratic will on the people of this island through violence. In recognition of the particular circumstances surrounding enactment of the provisions of the 1998 Act, there was general agreement that the Act should be regularly revisited by the Oireachtas to see if the circumstances then prevailing justified the continuance in force of its provisions or whether there had been a change in circumstances sufficient to convince the Oireachtas that the provisions were no longer needed. Under section 18 of the Act, therefore, as amended by section 37 of the Criminal Justice Act, 1999, and by virtue of resolutions passed by each House of the Oireachtas on 20 June 2000, sections 2 to 12, inclusive, 14 and 17 will cease to operate on and from 30 June 2001 unless a further resolution is passed by each House authorising the sections to continue to operate for such period not exceeding 12 months as may be specified in the resolution.

Included in the Act also was a requirement on the Minister for Justice, Equality and Law Reform to lay before each House of the Oireachtas a report on the operation of the Act prior to consideration by the Houses of the renewal of the provisions. I laid such a report before this House on 21 June. I will go into more detail on the information contained in the report shortly, but its conclusion is that the renewal of the provisions for a further year is necessary. The sad reality is that those responsible for the Omagh bombing have, in the past year, continued their campaign of violence and there is no change of substance to the circumstances which led to the enactment of the 1998 Act.

[671] I will turn now to the individual sections which this House is asked to continue in force for a further 12 months, outline their purpose and indicate where they have been utilised in the past 12 months. Section 2 provides that where, in any proceedings against a person for membership of an unlawful organisation, evidence is given that the accused when questioned failed to answer or gave false or misleading answers to any question material to the investigation of the offence, the court may draw such inferences from that failure or from the furnishing of a false or misleading reply as appear proper. As mentioned in my report which is before this House, this provision has been utilised on many occasions in questioning persons arrested on suspicion of being members of an unlawful organisation. Charges do not of course result in every case in which the provision is used but during the period of the report, in other words over the past year charges were preferred in five significant cases in which section 2 was utilised. One of these cases resulted in a conviction, while the other four cases are currently before the courts.

Section 3 provides that, in proceedings for an offence of membership of an unlawful organisation, the accused must give notification of an intention to call a person to give evidence on his or her behalf, unless the court permits otherwise.

Section 4 amends section 3 of the Offences against the State (Amendment) Act, 1972. The effect of the 1972 provision is that any statement or conduct by a person accused of membership of an unlawful organisation implying or leading to a reasonable inference that he was at a material time a member of such an organisation shall be evidence that he or she was then such a member. It originally defined the expression “conduct” as including an omission by an accused person to deny published reports that he was a member of an unlawful organisation. The change made by section 4 of the 1998 Act was to expand the definition of “conduct” to include movements, actions, activities or associations. This simply aligns the definition of conduct in the 1972 Act with the reference to movements, actions, activities or associations used in section 2 of the 1998 Act.

Section 5 provides for the drawing of adverse inferences in the prosecution of a person for any offence under the Offences against the State Acts, any offence scheduled under the Acts and any offence arising out of the same set of facts as such an offence, provided the offence carries a penalty of five years imprisonment or more. The effect of this section is to allow a court to draw inferences where the accused relies on a fact in his or her defence that he or she could reasonably have been expected to mention during questioning or on being charged but did not do so. This section, as with section 2, incorporated important safeguards whereby it will not have effect unless the accused was told in ordinary language what the effect of a failure to mention such a fact might [672] be and provides that a person shall not be convicted solely on an inference drawn from such failure.

Section 6 established the offence of directing, at any level of the organisation's structure, the activities of an organisation in respect of which a suppression order has been made under the Offences against the State Act, 1939. One person is currently before the courts charged with such an offence.

Section 7 made it an offence to possess articles in circumstances giving rise to a reasonable suspicion that the article is in his or her possession for a purpose connected with the commission, preparation or instigation of specified firearms or explosives offences.

Section 8 made it an offence to collect, record or possess information which is of such a nature that it is likely to be useful to members of an unlawful organisation in the commission of serious offences. Two persons are currently before the courts on charges under this section.

Section 9 made it an offence to withhold information which a person knows or believes might be of material assistance in preventing the commission by any other person of a serious offence or securing the apprehension, prosecution or conviction of any other person for such an offence and who fails without reasonable excuse to disclose such information to a member of the Garda Síochána.

Section 10 extends the maximum period of detention permitted under section 30 of the Offences against the State Act, which otherwise is 48 hours, to 72 hours on the authorisation of a District Court judge. The judge must be satisfied, on the application of an officer of the Garda Síochána not below the rank of superintendent, that the further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously. The person being detained is entitled to be present in court during the application and to make, or to have made, submissions on his or her behalf. In the past year, 27 persons have had their periods of detention extended under this provision and nine of these were subsequently charged with offences. Two of these persons have been convicted and the remaining cases are before the courts.

Section 11 allows a District Court judge to permit the rearrest and detention of a person in respect of an offence for which he or she was previously detained under section 30 of the Offences against the State Act, but released without charge. This further period must not exceed 24 hours, and can only be authorised in circumstances where the District Court judge is satisfied, on information supplied on oath by a member of the Garda Síochána, that further information has come to the knowledge of the Garda Síochána about that person's suspected participation in the offence and about which they wish to question the suspect.

[673] Section 12 made it an offence for a person to instruct or train another person in the making or use of firearms or explosives or to receive such training without lawful authority or reasonable excuse. Six persons were convicted during the past year with offences under this section.

The effect of section 14 is to make these new offences scheduled offences for the purposes of Part V of the 1939 Act. This means that persons suspected of committing such offences are liable to arrest under section 30 of the 1939 Act and can be charged in relation to such offences on the direction of the Director of Public Prosecutions.

Section 17 builds on the provision in the Criminal Justice Act, 1994, providing for the forfeiture of property. Essentially, the 1994 provision empowers a court, in its discretion, whenever any person is convicted of an offence, to order the forfeiture of any property in the possession of that person which was used, or intended to be used, to facilitate the commission of the offence. The effect of section 17 is, in the case of a person convicted of specified offences relating to the possession of firearms or explosives and where there is property liable to forfeiture under the 1994 Act, to require the court to order the forfeiture of such property unless it is satisfied that there would be a serious risk of injustice if it made such an order.

This information on the use made of these provisions of the 1998 Act over the past year is based on information received from the Garda authorities and is contained in the report on the Act laid by me before this House. When contrasted with the previous report, it shows that, more and more, the key provisions of the Act are taking effect. I have always made the point that it would take time for the Act to take effect. Some provisions of the Act, such as extended detention, of their nature have an immediate impact. Others, however, were always going to take time to have effect, such as the new offences created by the Act where time is needed to build a case for prosecution, or the provisions for drawing adverse inferences which only take effect when a case comes to court. We are now seeing the results coming through.

The section 2 provision for adverse inferences has been used in five cases, resulting in one conviction and four pending charges. One person has been charged, under section 6, with directing the activities of an organisation in respect of which a suppression order has been made. Two persons have been charged under section 8 in relation to information likely to be useful to members of an unlawful organisation and six persons have been convicted, under section 12, of instructing or training another person in the making or use of firearms or explosives.

At the same time, it should be noted that the number of persons held under extended detention under section 10 over the past year was 27, a relatively modest number and one which, taken together with all of the other information I have outlined, goes to support my view that the pro[674] visions of the Act are reasoned and proportionate, and are being implemented by the Gárda Síochána in a measured and restrained manner. There are, of course, some provisions which have not yet taken effect in the context of court proceedings, but even here the Garda authorities have informed me that the provisions in question have been utilised where appropriate by the gardaí during the investigation of offences. Members of this House will appreciate, of course, that many of the investigations at issue are, of their nature, ongoing.

The Gárda Síochána has had considerable success over the past year in combating those who would subvert, through the use of violence, the democratic wishes of the people on this island and I am sure the House will join with me in congratulating the force on its achievements. But the threat to life and to our democratic values, which led to the enactment of the 1998 Act, remains. So too, I am sure, does the determination of this House never to give in to such a threat, but to provide the Gárda Síochána and the criminal justice system with all legitimate means of combating it. The 1998 Act is an important part of those means. It is proving its worth and I ask the House to continue it in force.

In addition to these security concerns which alone would, I believe, justify the continuance in force of these provisions, there is another consideration in favour of their continuance in force. The Offences Against the State Acts, including the 1998 Act, are currently under review by a committee under the chairmanship of former Supreme Court judge, Mr. Justice Anthony Hederman, on foot of a commitment in the Good Friday Agreement. The review is, I understand, approaching finalisation. Indeed, I have just received an interim report on the Special Criminal Court which I will shortly be publishing and I expect the committee will submit its final report in the coming months. It clearly would make no sense to allow the provisions of the 1998 Act to lapse before the committee reported its conclusions on those very provisions.

Much has been achieved in the implementation of the peace process and much remains to be done but there are still those who would threaten to subvert that process through violence. The 1998 Act is part of the democratic response to that threat, and I ask the House to continue in force the relevant provisions of that Act for a further 12 months. I commend the resolution to the House.

Mrs. Taylor-Quinn: It is unfortunate that it is necessary for the House to put in place again, for another year, sections 2 to 12, 14 and 17 of the Offences Against the State Act, 1998. In his speech the Minister has given good reasoned justification why this needs to be done. It is regrettable that, despite the Good Friday Agreement and the deep yearning for peace by the overwhelming majority of people north and south of the Border, there are people within our com[675] munity who still want to subvert the power of the State, who still want to create mayhem resulting in loss of life and engage in paramilitary activities. The evidence put before the House by the Minister is ample proof that there is a requirement for these sections to be in place and we support the measures being taken.

No democratic country would wish to have to implement such legislation, except as a last resort. Unfortunately, however, we must address the situation that exists. Provisions in the different sections ensure the person being investigated or questioned has protections under the Constitution, which is very evident in particular in section 2 which provides that the failure to answer cannot on its own lead to conviction of an offence. It is also important that the section ensures it is explained to the person being questioned, in plain and ordinary language, the dangers for them in failing to comply and answer questions.

The figures mentioned by the Minister are revealing. Obviously, most of the sections have been used, some to a considerable extent, which is proof of the necessity to keep them in place.

While this deals specifically with paramilitaries within our country, persons could be prosecuted within the State for acts committed outside the State. I am concerned that in more recent times international terrorists may be setting up small cells in Ireland and I wonder if the Act will apply to those groupings as it is important it should. Given that in the recent referendum we changed the Constitution to provide for the International Court of Justice, will there be interlinking between this Act and that court? Is there a way in which both can work together? Perhaps this legislation could be used in a broader ambit in terms of organisations which are not necessarily within the jurisdiction of Ireland and England. I would like the Minister to elaborate upon and clarify this matter.

The figures given by the Minister are fascinating. A number of convictions have taken place under section 2 and currently there are four cases before the courts, which is significant. It is all the more interesting that this has occurred under what is a convoluted section. Section 5 also has safeguards, which is important, as the accused must be told in ordinary language the effect of their failure to mention facts of material relevance in an investigation.

On section 6 the Minister said one person is currently before the courts. The section established the offence of directing, at any level of an organisation's structure, the activities of an organisation in respect of which a suppression order has been made. Does the Minister envisage that more use will be made of the section? I thought more people might have been brought before the courts under the section.

Has anyone been questioned or is anybody before the courts under section 7? The section refers to being in possession of an article for a [676] purpose connected with the commission, preparation or instigation of specified firearms or explosives offences. Two persons are currently before the courts under section 8. Are these people within the jurisdiction or do they come and go? Can the Minister give any more detail than he has already laid before the House?

Some 27 persons have been questioned under the extension of time section in the past year, a relatively moderate number. Of the 27, nine are charged with offences, two have been convicted and the remaining seven are before the courts. That is ample evidence that section 10 needs to remain in force, although it is unfortunate to have to say that in a democratic institution.

Section 12 makes it an offence for a person to instruct or train another person in the making and use of firearms. Under that section, six persons have been convicted. Are any other people currently charged or are there any investigations ongoing under the section, given that six convictions is quite a substantial number?

I compliment the Garda Síochána on their work to date under this Act. They have a very difficult and dangerous job and are owed the full support of this House in the circumstances. I am sorry we have to renew this Act for another 12 months. I hope the political climate will change and that people who are of a mind to subvert the State will decide to go the peaceful route. It is highly unlikely that this will happen within the next 12 months and this Minister or another will be back here in 12 months' time again asking the Oireachtas to renew these sections. The motion has the full support of the Fine Gael Party.

Mr. O'Donovan: I too support this motion. While the measures contained in the Act, particularly the sections referred to here, are draconian, they have been proved to work. It is regrettable that we need such measures. However, there is in existence a self-professed small army terming itself the Real IRA, which has not come into line with the Good Friday Agreement and, although the numbers involved are small, the security of the State must take precedence.

The Minister is proposing a 12 month extension of these very extensive measures, the most important of which relates to the right to remain silent. That right is written into our Constitution and our legal system. Under section 2 of the Act under discussion it is provided that if a suspect who is being questioned on serious issues involving arms or bomb-making equipment or support for a certain organisation remains silent, senior members of the Garda Síochána are entitled to make certain inferences. That is probably one of the most important features of this Act. The right to remain silent in these circumstances is varied for the greater security of the State and to combat terrorism.

I compliment the Minister and the Garda Síochána on their huge success to date in such matters, particularly on the success of the Crimi[677] nal Assets Bureau in dealing with people who are involved in subversive organisations which are sometimes interlinked with drugs, racketeering and so on. The Criminal Assets Bureau is hitting criminals where it hurts most, in their pockets, and the Minister is to be congratulated for that.

I also compliment the Minister, on the fourth birthday of the current Dáil, on the fact that during that four-year period there has been a 30% reduction in crime, but it is not enough. Work in that area must continue. However, this Minister is seen as a reforming Minister and the amount of legislation he has initiated since he was appointed Minister four years ago is tremendous. Furthermore, much of it was initiated in this House. That shows the respect this Minister has for the Seanad, which we welcome. I urge other Ministers to initiate legislation here. This House is often ignored, but the Minister for Justice, Equality and Law Reform and the Minister for the Environment and Local Government have done much to introduce legislation and have it teased out here before it goes to the Dáil. That is an indication of great respect for this House.

The success of the Good Friday Agreement is also important. People in both the Republic and the North voted for it. There will always be struggle and strains on the peace process, especially at this time of the year. I encourage measures, particularly in the North during the next few weeks, to ensure calm and respect for the communities. By their vote on the Good Friday Agreement, both communities of different traditions indicated huge support for peace. The Good Friday Agreement has created an atmosphere in which people are engaging in dialogue with each other, in which it is the political system that is working, not guns, bullets or bombs.

The Taoiseach's effort in spearheading the Good Friday Agreement from this side of the Border must also be recognised. The Minister played a key role in the negotiations and continues to do so. It is also important to recognise the interaction and co-operation between the Chief Constable of the RUC and the Garda Commissioner in combating serious crime and creating an atmosphere where it is no longer tolerated that somebody who commits a crime can cross the Border to hide.

That these measures have been used on only 30 or 40 occasions since they were introduced indicates that they are invoked only in extreme circumstances. They are draconian, but while the threat of a self-professed army however big or small remains, vigilance on the part of the Garda, the Minister and the Department of Justice, Equality and Law Reform is the most advisable approach and the lesser of two evils.

Since the Offences Against the State Act was introduced, there has been a plethora of Acts, including the 1998 Act. The Minister mentioned the very important fact that currently a very eminent Supreme Court judge, Judge Anthony Hederman, is reviewing all this legislation on foot of a commitment given under the Good Friday [678] Agreement. An interim report has been laid before the Minister and he is waiting on a final report which will most likely be laid before him in the next few months. It is prudent and wise that the Oireachtas take cognisance of the report and wait until the final report by Judge Hederman is laid before the Minister and the Houses.

This resolution enables the particular sections of the 1998 Act to continue in force for another 12 months. If the Minister does not go ahead with this resolution, these sections will lapse. We are then playing into the hands of terrorism.

Mr. Norris: It is clear this legislation is a continuing response to the kind of outrage we saw at Omagh. The State has a right to defend itself against armed conspiracy. It also has an obligation to defend the integrity of the lives of its citizen, so one has to see this sort of legislation in that context. I would like at the outset to ask the Minister to congratulate the Garda Síochána on the discovery of a 60 lb bomb yesterday, which certainly could have caused havoc. It is very good that this material was intercepted.

However, I have certain reservations about some of the sections, particularly in the light of the civil and human rights aspects of this legislation. Although one accepts that in the circumstances prevailing on both parts of the island at the moment the Government has a responsibility to take strict action, it is also the responsibility of this House to operate as a critical reviewing body. It is significant that the principal Government spokesman said that he regards this as draconian, and draconian is what I would call this legislation. For example, the limitations or, indeed, the removal in certain circumstances of the right to silence is a worrying factor in this legislation. In fact, the whole of section 2 would cause me a fair amount of concern, particularly the provision where in any proceedings against a person for membership of an unlawful organisation evidence is given that the accused when questioned failed to answer or gave a false or misleading answer to any question material to the investigation of the event, the court may draw such inferences from that failure or from the furnishing of a false or misleading reply as appear proper. The drawing of inferences of this kind is a very delicate matter and it does affect the right to be silent.

I would like reassurance from the Minister that suggestions made by many people, including myself – I remember making it at an international meeting of police chiefs in Dublin Castle last year – that there should be pretty well universal videoing of interviews. Perhaps the Minister could indicate whether these kinds of interviews are currently being videoed and will continue to be videoed because it seems to me that in those particularly tense circumstances where members of the police feel there is an armed conspiracy against the State, that these are dangerous people, that these are people who may very well have been involved in the murder of some of their colleagues, and where tempers [679] might quite easily become frayed, it is very important that both the accused person and the guards have the protection of a video record so that if there are allegations of mistreatment or allegations that confessions were beaten out of the suspects, then both sides have access to the record.

Section 4 provides that any statement or conduct by a person accused of membership of an unlawful organisation implying or leading to a reasonable inference that he or she was at a material time a member of such an organisation shall be evidence that he or she was then such a member. That is quite a jump from a reasonable suspicion to being regarded as proof. In other words, under this legislation, opinion becomes proof. It may very well be a well informed opinion and it could be true.

As I said, I would like to support the Government in measures to contain the level of violence coming from an armed conspiracy against this State and nobody who regularly attends this House or reads the record could be under any illusion as to my firm opposition to subversive organisations on both sides, north and south of the Border. However, there is a very strong responsibility and onus on the Government to ensure that, both in law and practice, this special court, because of its very special nature, should conform strictly with international standards which require, among other things, that all courts be independent and impartial. I received a briefing from Amnesty International on this area. It indicated that it feels the court should be subject to review by the courts and to regular periodic review by an independent body. Some degree of review appears to be in operation under the committee established, and we have just had one report. However, this must continue and there must be supervision by the courts – it must not be a court unto itself.

The jurisdiction should be restricted to offences directly connected with the extraordinary circumstances which justify the establishment of the court and certain sections should be repealed. I look to the Minister to do this. For example, in regard to the provisions of the Offences Against the State Act permitting internment, I do not think anybody seriously imagines that, either north or south of the Border, the political situation would be enhanced by the introduction of internment. It has just become an impossible option and it should be withdrawn unless the Government can foresee situations in which internment, which is a very extreme measure and which caused great damage to the political system in the North of Ireland, was likely to be introduced.

The sections permitting the arrest and detention of a person without reasonable suspicion of their having committed a recognisable criminal offence and for purposes other than bringing them before the court – section 30 of the Offences against the State Act, 1939, and section [680] 10 of the Offences against the State (Amendment) Act, 1998 – should be repealed. Amnesty International is also calling for the repeal of the section criminalising the failure of a person to provide information about their movements, which the Government is clearly continuing both in practice and in spirit in this amending legislation. I refer also to those sections which permit adverse inferences to be drawn from a person's failure to deny reports relating to alleged membership of an unlawful organisation. The senior body trusted with the monitoring of human rights in this country is directly opposed to certain central sections of the legislation and the Minister is seeking to obtain the House's agreement on the continuance of those sections.

With regard to the Government's attitude to human rights, it is perfectly clear that the Government must ensure that in line with the relevant international standards, the human rights of each person arrested or detained under the Offences against the State Act are fully respected, and I am not completely convinced that under this legislation such is done. From the use of the word “draconian” on the other side of the House, there are at least legitimate concerns in this area.

I draw the attention of the House to the fact that there is already in existence a judgment against this State in these matters from the European Court of Human Rights. I refer to the cases of Healy and McGuinness v. Ireland and Quinn v. Ireland in which section 53 of the Offences against the State Act, 1939, was held to be in violation of Articles 6.1 and 6.2 of the European Convention on Human Rights. In the light of that, it seems the Government should honour its obligations under the European Convention on Human Rights and introduce legislation repealing section 52 of the Offences against the State Act. Where we have a court described in its very title as the Special Criminal Court, which sets it separate and gives it much greater powers than any other court on this island, that places an even stronger responsibility on us, as legislators, not only to monitor the implementation of this law and its administration, but also to monitor very clearly the Government's compliance under this legislation with good standards of human rights practice throughout the world. In particular, where a section such as section 52 has been found to be in violation of the European Convention on Human Rights, then there is a moral obligation on the Government to lay before the House an instrument amending the legislation by repealing that section or, if not, to provide evidence more cogent and convincing than that which failed to convince the European Court of Human Rights.

Mr. J. Cregan: I welcome the Minister to the House and the report he laid before us. When these provisions were introduced in 1998 we all spoke of the regret that they were necessary. They were introduced in the aftermath of the terrible atrocity in Omagh. Everybody stressed at the time that their introduction was necessary to [681] ensure that another such atrocity would not take place. It is evident from the Minister's report that it is necessary for us to give our approval to ensure that these provisions can be renewed.

The Minister was at pains to point out in 1998 that the Bill would take time to take effect and from this report it is clear he was correct on that. Compared to his report last year, his report this year contains much more striking evidence of the great need to ensure these provisions continue to remain in place for another 12 months, as was said by previous speakers.

The discovery of a bomb along our Border with Northern Ireland which had the potential to kill and maim many fellow Irish citizens confirms how vital and necessary it is for us to give approval to the Minister today to renew these provisions. As a democratic State, we would much prefer not to have to do this, but we must continue to keep these provisions in place, as outlined in the report.

I welcome the results that are coming through. It was mentioned that section 2, which deals with provisions for adverse inferences, was used in five cases resulting in one conviction and four pending charges, with one person charged under section 6, two persons charged under section 8 in relation to information likely to be useful to members of an unlawful organisation and six persons convicted under section 12 of instructing or training another person in the making or use of firearms or explosives. I also note that the number of persons held under extended detention under section 10 during the past year was 27. The provisions of the Act are reasoned and proportionate and are being implemented by the Garda Síochána in a measured and restrained manner.

When we have seen so much good taking place in Northern Ireland in the past few years, it is frightening to imagine there are people living among us in Northern Ireland and the Republic of Ireland who are still prepared to threaten and subvert the peace process by way of violence. The message must be sent home loud and clear once again today that there is no place in our community or society for the terrible acts of violence and atrocities we have seen over the past 30 years in the northern part of our country.

Like other speakers, I congratulate the Minister on initiating this legislation in 1998. Many people thought it would not work, but the Minister has proved today in his report that it is working very well. I congratulate the Garda Síochána on implementing the legislation successfully and also the courts of our land. We look forward to the day when a Minister will come into this House and not need to seek approval for the renewal of these provisions. That will be a good day because it will mean we will have reached the ultimate stage that the Good Friday Agreement will have worked and will continue to work. I commend the motion to the House.

[682] Mr. Costello: I welcome the Minister to the House. He was here this time last year seeking our approval for renewing these sections of this legislation. On that occasion I indicated that I was dissatisfied with the operation of the legislation. There was little use of it in the first two years of its operation, but its use has increased and 27 people have been processed under it resulting in a number of convictions.

We all know the atrocity that sparked off the introduction of this legislation. I am sure no one objected to steps being taken at that time to ensure those people who were responsible for that murder and that terrible atrocity would be brought to justice. Unfortunately nobody has yet been convicted of that crime. There must be a question mark over the effectiveness of the legislation in that no conviction has taken place.

We introduced these draconian measures, as Senator O'Donovan described them, on this part of the island. I am not aware that measures of such effectiveness or seriousness in terms of suspending normal legal democratic provisions were introduced in the other jurisdiction – Omagh is in the other jurisdiction. Considering that one of the Minister's functions under this legislation is to bring forward a report to us annually, will he indicate what element of this report deals with the operation of the RUC in trying to deal with the Omagh atrocity? What steps have been taken by the police force in the other jurisdiction to do that? I would have thought that a report under this legislation would also have included some reference to the purpose for which it was initiated in both jurisdictions on the island. It does not seem that the perpetrators of the Omagh bombing have been pursued effectively in the other jurisdiction. How many arrests have taken place? What legislation has been used?

Apart from the case of one arrest, which is currently before the courts, that the Minister mentioned in relation to Omagh, the legislation seems to have been used to deal with paramilitary activities in the case of the other 26 people. That does not give a clear indication of progress made in bringing the perpetrators of the Omagh atrocity to justice. It is disappointing from the Minister's report that he has not focused on the Omagh atrocity, which was the main reason this legislation was introduced.

There is no doubt that this is draconian legislation. The periods of detention are draconian, the right to silence does not exist and there is provision for internment and the seizure of property. There are all sorts of unusual legislative provisions in this Act that would not be in place in normal circumstances.

While the Minister is given support in this House and the other House to renew these provisions – I will support him on this occasion – I expect him to respond by introducing some balance. For example, we have a ludicrous Garda complaints body. Complaints about any matter dealing with suspects in custody or complaints against gardaí are dealt with by gardaí. That body [683] is non-functioning. It is a laugh. Will the Minister indicate when he will reform that procedure?

The Minister indicated when introducing the legislation that tape recording and video recording of interrogation would take place in various Garda stations, particularly around the Border where most questioning takes place. Where provision is made for enormous periods of detention in custody for the purpose of interrogation, we expect that a caveat should be introduced by the Minister to ensure that this would be done properly and that there would be no room for questions to be raised subsequently about improper practices in regard to questioning.

We must remember these are serious offences. The people brought in for questioning under this legislation are suspected of being involved in most undesirable activity and the powers we have given the Garda Síochána are virtually absolute. However, absolute power corrupts absolutely unless there are measures in place to provide for a monitoring mechanism but we do not have a monitoring mechanism.

While Senator Norris discussed Amnesty International's concerns about the operation of this legislation, I also believe we have a difficulty maintaining the legislation given our commitment to the European Convention on Human Rights, which is part of the Good Friday Agreement. Part of that Agreement provided for a review of the Offences Against the State Act. However, no sooner did we enter into an agreement to conduct a review of it, which is being conducted by Judge Hederman, than we also passed new legislation which made the Act even more draconian.

We have a problem and we must address it. We cannot simply renew this legislation year after year until we see where the balance has been put. Legislation of this nature is a serious matter for a democracy. Our neighbouring jurisdiction of England, Wales and Scotland but excluding Northern Ireland does not have legislation of this nature. Everybody has the same objective of bringing peace to Northern Ireland but we cannot do that at the expense of undermining democratic legal institutions. However, that is the danger.

I hope when we return to the matter next year the Minister will bring forward a report that is more far reaching than what has been presented to date. It should not be just an inventory of the number of people who have been dealt with under the legislation. We want to know what the police force in the other jurisdiction is doing to deal with the atrocity that gave rise to this legislation. We must deal with the people responsible for it but that has not happened.

The United States has declared the Real IRA an illegal organisation. What is happening in that regard and what steps are we taking or have we taken in relation to influencing the US authorities? What is the situation in Britain? Has the Real IRA been declared an illegal organisation and what steps have been taken in that respect? [684] The Minister should also have given some indication of who the 27 people in the report are. Are they part of a single organisation or of a multiplicity of organisations? Are some of them independent operators? Are they all paramilitaries? We do not have this information even though the Minister is supposed to give the House a meaningful and effective report on the situation and why this legislation must be renewed.

The worst atrocities that took place in this jurisdiction were the Monaghan and Dublin bombings. No person has been arrested in this jurisdiction in relation to those atrocities. The worst atrocity that took place during the 30 year conflict in Northern Ireland was Omagh. Surely there should be a response to the atrocity in this jurisdiction, given the number of victims and families still seeking justice. The Bloody Sunday inquiry is ongoing and the families concerned are at last getting justice but nothing is happening in this jurisdiction to alleviate the pain and suffering of the victims of the Monaghan and Dublin bombings and their families.

We support the renewal of the legislation this year. We were not happy with many aspects of it last year and we are not satisfied that precautions have been introduced in the areas suggested. There is a conflict with our commitments in the Good Friday Agreement in relation to introducing democratic legislative provisions and under the European Convention on Human Rights. In addition, we have not received a full ministerial report on why this legislation is necessary. It could well be necessary and it has certainly been used to a greater degree in the last 12 months than previously. I am glad there is an annual review but there should be, in the context of the overall review of the Offences Against the State Act and the new review in 12 months, a thorough ministerial report before the House the next time we debate this legislation.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): I will deal with points raised in the debate. With regard to international terrorists, the 1998 Act applies to all offences under the Offences against the State Acts and scheduled offences under those Acts, regardless of who commits them. That is clear. Anybody who commits an offence in the State is subject to the jurisdiction of the State. There was a query whether section 6 would be used. It is for the Garda Síochána to investigate a possible offence under section 6 and it is for the Director of Public Prosecutions to decide whether to prosecute.

With regard to the videoing of interviews, I announced that we would proceed to install audio video equipment in Garda stations and work is ongoing on that at present. By the end of the year, I expect 150 Garda stations to have the equipment. The equipment will be used when people are being questioned. This is to the advantage of the person being questioned and of the Garda Síochána.

[685] The issue of adverse inferences was raised. Section 2 provides for the drawing of adverse inferences in narrowly defined circumstances. Substantial safeguards are in place in the section and nobody can be convicted on inference alone. It is, on balance, a legitimate measure.

With regard to the European Court of Human Rights, there were judgments in relation to section 52 of the Offences Against the State Act. In those circumstances, there must be an element of concern. However, a review of the Offences Against the State Acts is being carried out by former Justice Hederman and the review will take court judgments into account, including those of the European Court of Human Rights, in arriving at its determinations.

I am anxious to correct the impression that was given to the effect that there is no equivalent legislation in the United Kingdom. There is. Equivalent measures were introduced when we introduced the 1998 legislation for the good reason that there was little point having the legislation in this jurisdiction if it would not be in place in the other jurisdiction.

This report deals with the Act and cannot deal with the work of the RUC in investigating the Omagh bombing. There is outstanding co-operation between the Garda Síochána and the RUC. As late as last week I attended a successful meeting in Belfast with the Secretary of State for Northern Ireland, Dr. Reid, and we were accompanied by the Garda Commissioner and the Chief Constable of the RUC. Everybody agreed that the level of co-operation between the police forces was never higher than it is at present. In fact, the Secretary of State and the Chief Constable were highly complimentary of the activities of the Garda Síochána in this jurisdiction in the fight against dissident paramilitaries.

It is true that the Garda complaints procedure is being reviewed at present. I accepted that there is a need to change the system and we are looking at it thoroughly. There is no point in conducting a simplistic examination of the Garda complaints procedure because that would lead to simplistic conclusions, which normally lead to complex problems. In the circumstances I am satisfied that the review will throw up suggestions which will actually work. In that context, I am mindful of the fact that at present the Garda Síochána, for example, is represented on the board. I am not so sure that this a great idea. I am not so sure either that it is such a great idea that in all cases the Garda Síochána examines the complaints. I am certainly convinced that there is a need for some kind of independent inspectorate. I would hope we will be able to bring forward positive suggestions regarding the operation of the Garda Complaints Board in the not too distant future.

The committee reviewing the Offences against the State Acts has not yet submitted its full report and all I have received is an interim report on the Special Criminal Court which, incidentally, I hope to publish soon.

[686] The Real IRA is of course an unlawful organisation in this State and in the United Kingdom. Regarding its proscription in the United States of America, obviously the American authorities would have been informed by the views held by the Garda Síochána and the RUC.

That more or less deals with the question other than of course the issue of the Dublin and Monaghan bombings, which is totally different. Recently we approved financial support for a family support centre for the Justice for the Forgotten group which they were seeking for some time.

I thank all the Senators for the contributions. I thank them for the expressions of support for the continuance in force of the provisions of the 1998 Act. Significant progress has obviously been made on the path to peace but there are still those who are ready and prepared to use violence to advance their aims.

Senator Cregan correctly referred to what occurred yesterday. There appears to have been a planned subversive attack which was thwarted by the actions of the Garda Síochána and the Army in discovering and disabling a bomb on the Border. I take this opportunity to congratulate the Garda Síochána on this wonderful success.

The 1998 Act is an important element in the response of the State to the very real threat posed by those who carry out these attacks and who reject peace and seek to undermine the democratic process. The nature of that threat has not changed since this House approved the enactment of the legislation and approved last year its continuance in force. That is the reality which faces us no matter how we might wish it to be otherwise. No justice Minister in a democratic state would wish to continue legislation such as this if it were possible to operate without it. Unfortunately the sad reality is that this legislation is a crucial tool in the fight against subversive activity.

The report on the operation of the Act over the past year does show that while the legislation was used sparingly, it is nevertheless having an increasing effect. As I stated earlier, the results are certainly coming through. The Act is proving effective. It is, unfortunately, as necessary today as it was when it was enacted in 1998. I am grateful to the House for continuing it in force.

Question put and agreed to.