I move amendment No. 1: In page 7, line 23, after “2004,” to insert “the Criminal Justice Act 2006,”. I will deal first with amendments Nos. 1, 21 and 32. Amendment No. 1 amends the Long Title to include a reference to the Criminal Justice Act 2006. Amendment No. 21 is a technical amendment to section 16(1)(b) to substitute a reference to the singular "subsection" with a reference to the plural "subsections". Amendment No. 32 is a technical amendment to section 18 to substitute a reference to “section 38(1) and section 45” with a reference to “sections 38(1) and 45”.
Sentiment score: -0.12
I move amendment No. 2: In page 7, line 32, after “trial;” to insert the following: “to give effect to the ratification by the State of certain amendments to the Rome Statute of the International Criminal Court, to further enable authorities in the State to cooperate with the International Criminal Court, and for those and other related purposes to amend the International Criminal Court Act 2006;”. I am pleased to introduce these amendments, which propose a number of technical amendments to the International Criminal Court Act 2006 to give necessary effect to Ireland's intended ratification of the amendments to Article 8 of the Rome Statute. The main objective of these amendments is to amend the International Criminal Court Act 2006 to make clear that war crimes within the meaning of the Act include Article 8 of the Rome Statute. Expanding the domestic definition of war crimes in this way will enable the State to give full effect to the principle of complementarity, which I spoke about earlier. These amendments will also provide a legislative basis to ensure that Ireland can fully co-operate with the International Criminal Court, ICC, in respect of all crimes. Amendment No. 2 inserts new text into the Long Title of the Bill. Amendment No. 36 is a standard definition that defines the International Criminal Court Act 2006 as the "Act of 2006". Amendments Nos. 33 and 35 are consequential on that. Amendment No. 37 inserts some new terms for definition in the interpretation provision in section 2 of the 2006 Act. First, the definition of the Rome Statute is updated. Second, it defines the term "crime of aggression". Third, it defines the term "crime within the jurisdiction of the International Criminal Court". Fourth, in order to future-proof the extent of Ireland's ability to co-operate with the ICC, a new order-making power is inserted as a new section 64A in the 2006 Act. Finally, it inserts a new subsection (1A) to clarify that the term "crime within the jurisdiction of the International Criminal Court" includes an act for which criminal responsibility is provided for by Articles 25 to 27, inclusive, of the Rome Statute. Amendment No. 38 inserts an additional subsection into section 6 of the 2006 Act to clarify that where following the commencement of the section, a relevant amendment has been adopted with respect to Articles 6 to 8, inclusive, of the Rome Statute. Any reference to an article of the Rome Statute in section 6 should be construed without having regard to that relevant amendment. Amendment No. 39 replaces section 8(1) of the 2006 Act with a new subsection clarifying that, in addition to applying to genocide, crimes against humanity and war crimes, ancillary offences under the 2006 Act shall apply with respect to offences against the administration of justice, but not with respect to the crime of aggression. A new subsection (1A) will also be inserted in section 8 to clarify that for the purposes of subsection 1 account shall not be taken of any future relevant amendments that may be adopted to articles of the Rome Statute. Amendment No. 40 ensures that no retroactive effect is given to the new domestic offences created by the amendments to the definition of the Rome Statute. Amendment No. 41 clarifies that when the State exercises extraterritorial jurisdiction over war crimes, the referenced Article 8.2 of the Rome Statute shall not be construed as that Article, as amended by a relevant amendment. Amendment No. 42 clarifies that the Minister for Justice, Home Affairs and Migration shall be able to request the ICC to provide assistance with a domestic investigation or prosecution of an offence against administration of justice, in addition to ICC offences or serious offences. Amendment No. 43 inserts a new section 64A into the 2006 Act in order to confer an order-making power whereby should future amendments be adopted by the state parties to the Rome Statute definition of genocide, war crime and crime against humanity or the crime of aggression, an act specified in that amendment may be prescribed by the Government on my request, having consulted with the Minister for foreign affairs. They are the amendments until we come to amendment No. 44, which makes a number of technical amendments to sections 4, 19, 22, 31, 37, 38, 50, 50A, 51, 52, 53, and 63 of the 2006 Act. Amendments Nos. 45 and 72 insert an additional Schedule 1A into the 2006 Act. Part 1 of the Schedule will set out the three sets of amendments to Article 8.2.1.b and Article 8.2.1.e of the Rome Statute, concerning war crimes committed in international and non-international armed conflicts respectively, adopted in 2010, 2017 and 2019. Part 2 will set out the amendments to the Rome Statute providing for the exercise of jurisdiction over the crime of aggression.
Sentiment score: -0.27
I move amendment No. 3: In page 8, line 6, after “2021;” to insert the following: “to provide that the Minister for Justice, Home Affairs and Migration may, in respect of applications made to the Minister, issue to certain persons certificates of disregard in respect of certain historical convictions and other determinations relating to consensual sexual activity;”. The amendments I am moving in this group are in respect of the disregard scheme. Amendment No. 3 is grouped with amendments Nos. 8, 12, 46 and 51 to 64, inclusive. These amendments collectively provide for an application-based scheme to enable the disregard of certain historical convictions and other determinations relating to consensual homosexual activity. The other determinations in question are formal Garda cautions given in lieu of prosecution and probation orders given in lieu of conviction. The substantive amendments providing for the scheme are amendments Nos. 51 to 64, inclusive, which collectively insert a new Part 14 into the Bill, comprising 14 sections. Amendment No. 51 inserts an interpretation section for the new Part 14. It includes the key definition of "relevant conviction or other determination", which includes convictions in a criminal or military court for the offences of buggery, attempted buggery, gross indecency and importuning. It also defines the categories of persons that come within the definition of an immediate family member and that of a relative. This is relevant for the purposes of applications that may be made on behalf of deceased people. Amendment No. 52 inserts a new section which sets out the criteria that are to apply to the granting of a disregard application. Those criteria of course include that the relevant person did not cause any other person to participate in the sexual activity without their consent. Amendment No. 53 inserts a new section setting out certain key provisions in relation to the making of an application. This includes provision that a disregard application may be made by a relevant person, namely, the person who incurred the conviction or by someone nominated by the relevant person to make the application on his behalf. It also provides that where the relevant person is deceased, a disregard application may be made by an immediate family member, or if no immediate family member can or wishes to make an application, by a relative, provided there is no objection from an immediate family member. Amendment No. 54 inserts a new section providing for the appointment of suitably qualified or experienced independent persons to consider applications and independent reviewers to carry out reviews in cases where the Minister proposes to refuse an application and the applicant seeks such a review. Amendment No. 55 inserts a new section providing for a preliminary assessment of an application by the independent person in order to satisfy himself or herself as to whether the applicant is the relevant person or is otherwise eligible to make an application on behalf of a deceased person. Where the independent person is not satisfied, the same provision is made that he or she shall not consider the application further and shall notify the applicant and the Minister accordingly. Amendment No. 56 inserts a new section providing for the substantive consideration of the application by the independent person and the subsequent making of a recommendation to the Minister as to whether the independent person is satisfied that the conviction should be disregarded. The section includes a provision that any public body which may hold records relevant to the application shall provide those records to the independent person on request. Amendment No. 57 inserts a new section providing that the Minister shall consider the independent person's recommendation and either issue a certificate of disregard or else notify the applicant that the Minister is not satisfied that the conviction should be disregarded. The section provides that where a disregard certificate is issued, the Minister shall notify all relevant public bodies and that they shall annotate any relevant records they may hold in order to clearly reflect the disregard. Amendment No. 58 inserts a new section setting out the general effect of a certificate of disregard. The section effectively provides that the relevant person shall, to all intents and purposes, henceforth be treated as if the conviction never occurred and that there are no circumstances in which the disregarded conviction shall be disclosable, other than where the relevant person chooses to disclose it. Amendment No. 59 inserts a new section to provide that an applicant may seek an independent review of the matter, either where the Minister has proposed to refuse a disregard or where the independent person is not satisfied that the applicant is a person eligible to make the application. In either case, the application shall be examined afresh by an independent reviewer other than the person who originally considered the application and a recommendation submitted to the Minister as to whether or not to reaffirm the decision in either case. Amendment No. 60 inserts a new section to deal with a scenario where, subsequent to issuing a disregard, the Minister receives information giving rise to the reasonable belief that the application included or was supported by false or misleading information and the Minister is no longer satisfied that the conviction should be the subject of a certificate of disregard. The section provides that the Minister shall in any such case notify the applicant that the Minister intends to revoke the disregard and that the applicant may seek a review, which shall be carried out by a retired judge of the Circuit Court, High Court or Court of Appeal appointed by the Minister. Amendment No. 61 inserts a new section to provide that where the Minister proceeds to revoke a disregard, he or she shall notify the applicant and also the relevant public bodies which shall be required to re-annotate their records to reflect the revocation. Amendment No. 62 inserts a new section to provide that the Minister shall make appropriate efforts, including a public information campaign, to raise awareness, particularly among relevant persons in the State and beyond, of the disregard scheme and the effects of a disregard. Amendment No. 63 inserts a new section containing a number of provisions relating to the protection of personal data under the scheme. This includes provisions for the redaction of any non-relevant convictions held by a relevant person, if alive, or any information that could identify any other living person in connection with any offence. Amendment No. 64 inserts a new section to provide that nothing in this Part shall create any new rights or any cause of action, nor impose any liability on any person or on the State. This is provided for the avoidance of doubt. Finally, there are a number of technical, consequential amendments as follows. Amendment No. 3 amends the Long Title of the Bill to take account of this new Part, while amendments Nos. 8, 12 and 46 each amend a number of definitions and references to enactments elsewhere in the Bill to take account of related references introduced by the new Part.
Sentiment score: -0.15
Yes, certainly.
Sentiment score: 0.62
1962.
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I am.
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I thank the Deputies for their contributions. I will start with Deputy Ó Snodaigh. Like him and other Deputies, I should also commend people who are not Members of the Oireachtas but who really led the campaign to see this injustice righted, in particular, Karl Hayden and Kieran Rose. I commend them and acknowledge the excellent work they did. Deputies Ó Snodaigh and Kelly have both asked why the Bill does not apply to convictions prior to 1922. As I said to Deputy Ó Snodaigh earlier on, I have a very strong view that this State does not have responsibility for convictions that were imposed when Ireland was a colony of the United Kingdom. We were not autonomous in exercising and operating our own criminal justice system. Consequently, it would be dishonest and inappropriate for us to go back and say that we have a responsibility for what happened prior to the declaration of the Irish Republic. Really, 1922 is the year that is picked because that is the time when, in effect and notwithstanding the earlier declaration of the Republic, that Irish people became responsible for their own affairs and we operated our own criminal justice system. That is the reason I made the policy decision, and got the approval of the Government, that we would not be going back into the 18th or 19th centuries and issuing pardons to people where we have no liability for what happened to them. Tone and Emmet were convicted of high treason. Are we going to say that we, in some way, are responsible for their convictions and that consequently we could pardon them? I do not think so. Deputy Ó Snodaigh also mentioned the court documents. The court documents are going to be extremely important. I agree with him in respect of that. Deputy Kelly spoke about the pre-1922 convictions and I have already answered. He spoke about there not being an independent body but it is going through the Department of justice. There will obviously be independent people appointed as reviewers but I think this is the most efficient way to get it operating, acted out and achieving the objective as quickly as possible. I do not want to set up some separate statutory agency that has glossy reports, takes a year to get up and running and has PR. We just want to get this thing done and this is the best mechanism by which to do it. There is an independent process in respect of it. I agree with Deputy Kelly about advocacy being very important. That is why we will be advertising this scheme. I know everyone in this House will co-operate in regard to making people aware of it. Deputy Kelly also asked if I would give consideration to repeating the apology of 2018. I will consider that and listen to what Deputies and people outside have to say. However, I have to say that if you keep repeating an apology, it sometimes lessens the significance of the original apology. I thought that apology in 2018 was very significant and I do not want to take away from it. Deputy Gannon asked if I was open to considering amendments in the Seanad. Of course I am-----
Sentiment score: 0.20
Yes. It could be the case that there are no records. The scheme is flexible enough to permit statements. Another thing the Deputy mentioned was the friend. There is a very broad definition of a "relative", which is contained in the scheme and in section 42. This is going to apply in respect of a deceased person. There are mechanisms whereby it could be considered. The person may have nominated a person who is not a relative to make the application on their behalf after they are deceased. However, legislation necessarily discriminates. You identify a group of people that you want to try to benefit. There may be hard cases at the edges and I will give consideration to that in advance of the Seanad but the primary purpose of the Bill is, I think, sound in regard to the ability of people who are living to make an application and also for persons who are nominated by them to make an application on their behalf, or the "relative" definition. It is a very broad definition of "relative" that includes grand-nephews, grand-nieces and others involved. That is why it is important to make people aware of this scheme. There are people who may not be aware that they have a great-uncle who was convicted and they could bring the application.
Sentiment score: 0.17
Judges were appointed by the Crown.
Sentiment score: 0.00
I move amendment No. 4: In page 8, line 9, after “1997,” to insert “the Social Welfare Consolidation Act 2005,”. Amendment No. 69 inserts a new section into the Bill to amend Schedule 5 of the Social Welfare Consolidation Act 2005 in order to add the Courts Service to the Schedule. This will mean that the Courts Service will be a specified body for the purposes of specified provisions of the 2005 Act relating to the personal public service number, PPSN, and thereby enabled to use the PPSN where permitted in accordance with the 2005 Act. Section 20 of the 2020 miscellaneous provisions Act, which provides an enabling basis for the transmission of documents and information by electronic means to and from courts and civil proceedings, envisaged the use of the personal public service number, PPSN, to verify the identity of persons transmitting documents and information by electronic means. This is also envisaged in court rules made pursuant to section 20. However, the 2005 Act was not consequentially amended by the 2020 Act to add the Courts Service to Schedule 5. This amendment addresses that gap and means that the identity of relevant court users can be authenticated via the PPSN as envisaged by the 2020 Act. Amendment No. 4 amends the Long Title consequential on the insertion of the new section. Amendment No. 7 amends section 1(4) of the Bill to provide that the amendment to the 2005 Act, along with the amendment of the Defence Act 1954 in Part 4 of the Bill - introduced on Committee Stage - will be commenced on enactment rather than by ministerial order. I want to flag that I am considering further commencement of the Bill generally and that subject to this consideration, I may introduce amendments in the Seanad to enable other provisions in the Bill to commence on enactment rather than by ministerial order.
Sentiment score: -0.06
In fairness to Deputy Daly, it would be a bit rich of me if I objected to him raising a matter that is outside the scope of the Bill, since the Bill is so broad in any event.
Sentiment score: 0.57
I hear what Deputy Daly says. The scheme that is being brought in on 1 July is designed to improve efficiencies in the criminal legal aid scheme and the District Court. I fully appreciate the important role played by solicitors under that scheme. I have met the Law Society and Bar Council in respect of it. The system would be greatly improved and there will still be proper payment for solicitors in the very significant work that is done in the District Court. I will take into account what the Deputy said.
Sentiment score: 0.38
I am conscious that we have many amendments to get through.
Sentiment score: 0.00
If Deputy Gannon wants to table it as a Topical Issue matter, I am happy to come in. The scheme that operates at present means that people get €260 for the first appearance and €60 for every appearance after that. That incentivises inefficiencies. Research has been completed in the Department that shows that the hearing of criminal cases in the District Court which are governed by the criminal legal aid scheme moves much more slowly than those which do not have the benefit of the criminal legal aid scheme. There are a number of anomalies, as I am sure the Deputy is aware, with certificates being granted for a whole series of offences in respect of the same person or indeed for a whole group of defendants who are effectively accused of the same type of offences and the same issue. I can assure Deputy Gannon that it needs to be reformed, but I am happy to come back to discuss it with him if he wants to table it as a Topical Issue matter.
Sentiment score: 0.17
I move amendment No. 5: In page 8, line 11, to delete “and” and substitute “, the Criminal Justice (Miscellaneous Provisions) Act 2023,”. Amendments Nos. 70 and 71 are small technical amendments to both the Family Courts Act 2024 and the Criminal Justice (Miscellaneous Provisions) Act 2023 that are necessary ahead of the standing up of the first family courts next year. The amendments are to fix a legislative lacuna that will otherwise arise when certain provisions of the Family Courts Act 2024 are commenced. The commencement of section 5 of the 2024 Act will repeal provisions of certain enactments, including sections 40 and 40A of the Civil Liability and Courts Act 2004, which provides for the in camera rule of proceedings under relevant enactments as defined in section 39 of the Act. Included in relevant enactments is section 37 of the Criminal Justice (Miscellaneous Provisions) Act 2023, which provides for the in camera rule to apply to court proceedings under sections 28 to 30 of that Act, which in turn relates to applications for civil orders where there is the fear of violence or where serious alarm or distress is being caused by a person's behaviour. When I commence sections 96 and 97 of the 2024 Act, they will replace the repeal provisions and relevant enactments will be defined in section 95 of the 2024 Act. However, section 37 of the 2023 Act has not been defined as a relevant enactment for the purposes of the 2024 Act. That is why it is therefore necessary to make these technical but important amendments to fix this lacuna. Amendments Nos. 5 and 6 amend the Long Title, consequential on the insertion of the new sections to amend the Criminal Justice (Miscellaneous Provisions) Act and the Family Courts Act 2024.
Sentiment score: -0.05
I move amendment No. 6: In page 8, line 12, after “2023” to insert “and the Family Courts Act 2024”.
Sentiment score: -0.15
I move amendment No. 7: In page 8, line 25, after “Act” to insert “(other than Part 4 and section 44)”.
Sentiment score: -0.15
I move amendment No. 8: In page 8, to delete line 31 and substitute the following: “ “Act of 2007” means the Prisons Act 2007; “Act of 2017” means the Criminal Law (Sexual Offences) Act 2017;”.
Sentiment score: -0.41
I did say that and I looked at it. I support the intention behind the legislation to ensure that there is legal recognition of the fact that gardaí deserve to be protected. My problem was that I need to have broader consideration of the legislative proposal in light of other legislation that exists at present. For instance, one of the things that was brought to my attention was that section 19 of the public order Act provides substantive protections for members of An Garda Síochána and other peace officers such as prison officers and members of the fire brigade in the execution of their respective duties. If I am going to introduce this provision, I am going to have to think of what the response will be from those other emergency workers or people who are involved in the prison service or fire brigade. Section 91 of the 1994 Act provides that any person who assaults or threatens to assault a peace officer, including a member of An Garda Síochána, is guilty of an offence. There are very significant penalties there. On summary conviction a fine not exceeding €5,000 or a term of imprisonment of 12 months and on indictment to imprisonment for a term not exceeding 12 years or both or a fine at the discretion of the court. It is an issue I am worried about. I cannot just put it in now because I need to consider the impact on other workers and groups but I will give the Deputy the commitment that I will give further consideration to it. I know he will not be hesitant about bringing this forward again. It is something I am aware of. The mischief is there where some people are becoming increasingly aggressive to An Garda Síochána notwithstanding the fact that we all know the overwhelming majority of Irish people are very supportive of the Garda. I cannot accept the amendment at this Stage. I would need to give it more consideration, I am afraid, but I will not run away from it in the future.
Sentiment score: -0.03
I am not supportive of Deputy Kelly’s amendment. I do not find it frequently the case that my access or the access of many colleagues coming in and out of the Houses of the Oireachtas is blocked. I do not recall ever being blocked coming in or out. I suppose the purpose of it is to say we do not tolerate intimidation of elected Members of the Oireachtas and I think that is valid. It is important to point out that I am aware that since October 2022, there have been approximately ten convictions of people for intimidation or violence against Members of the Oireachtas or people associated with it. We all know the case involving the Tánaiste, there was a case in respect of the Taoiseach and one in respect of Deputy McDonald. If people start intimidating politicians online the law is there to meet them and if people start to intimidate or harass politicians, or anyone else, physically the law is there and the law is responding to it fairly vigorously. The laws in place are sufficient to ensure that happens.
Sentiment score: -0.10
I move amendment No. 12: In page 10, line 38, to delete “Prisons Act 2007” and substitute “Act of 2007”.
Sentiment score: -0.15
I was at the committee hearing as well, as was Deputy Carthy. He got a straight answer from the Minister for Defence when she told him that these proposals were put before the Government before any fuel protest. His suggestion that there is an attempt to link them is completely untenable. I will deal promptly with this because, like others, I want to get to the counselling notes amendment, which is amendment No. 17. I am not going to accept amendments Nos. 13 and 14. I think it is appropriate that the legislation should make express provision for the long-standing role of the Defence Forces when they assist the gardaí. I think that aid to civil power role is better off being set out on a statutory basis.
Sentiment score: 0.08
I considered it, and my concern is that the proposed amendment is seeking to merge and align community service and probation. The Deputy knows they are different statutory regimes. The Probation of Offenders Act deals with a court being able to dispose of a summary offence either by dismissing the charge or by discharging the offender conditionally. Obviously, community service is something different. Having given it consideration, I thought the way the amendment was drafted was merging those two schemes inappropriately. They are distinct. I identify the objective of what the Deputy is doing, and I have no difficulty working with him in the future on proposals to ensure we have schemes in place in respect of community service and community sanctions. The Deputy also knows there are a lot of provisions in this Bill that deal with that, but I cannot accept the amendment.
Sentiment score: -0.11
Do I have time to start, Ceann Comhairle?
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What is the Deputy saying to me? Is he saying that I should not speak for too long to allow for a vote on this?
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Okay. Can I have two minutes?
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The first thing I want to say is that I have listened to people in the House. I acknowledge the presence of survivors in the Gallery and I commend them because the law is being changed because of the advocacy of campaigners. We all agree on one thing, which is that the current situation is unacceptable. The current statutory scheme that operates is unacceptable and needs to be changed. It needs to be changed in order to weigh the balance between a fair trial and the right to privacy more in favour of the right to privacy. I believe that is what I am doing. I cannot ban counselling notes. I simply cannot do that because of the legal advice that I have received. The Labour Party recognises that. People in this House recognise that. In terms of the proposal from the Dublin Rape Crisis Centre, I gave consideration to it and have prepared a response in respect of it. I just want the House to know that its scheme is not that different from what I am operating, except that it would have a panel of barristers deciding it, as opposed to a judge. Finally, on the interests of justice, the reason I left it in is because the advice I received is that counselling notes can be very beneficial to the prosecution of sexual offences and rapes. They corroborate what a complainant is saying and are very beneficial in terms of getting people convicted because the counselling notes confirm what the complainant is saying.
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That is why I have left them in and the advice I have received is that they have been of assistance in achieving convictions. I am conscious of what Deputy Gannon has said and I want to allow a vote.
Sentiment score: 0.15