Tairgim: "Go léifear an Bille an Dara hUair anois." I move: "That the Bill be now read a Second Time." Tá áthas orm an Bille a chur i láthair sa Teach. I am pleased to introduce Criminal Law and Civil Law (Miscellaneous Provisions) Bill 2026. The Bill introduces important reforms to our criminal law and civil law across a broad range of areas and delivers on several programme for Government commitments. While miscellaneous provisions Bills often lack the unifying theme of other Bills, three primary themes emerge from the provisions of this Bill: procedural reforms to support a more responsive and efficient justice system; addressing issues relating to penal policy and prisons; and reforming aspects of the law in relation to sexual offences and sexually exploitative behaviours. The Bill responds to a range of challenges for the criminal justice system in particular, including severe prison overcrowding and an increase in violent incidents; the exploitative practice of seeking sexual activity in lieu of rent; and the need to restrict the disclosure of counselling records in sexual offence trials. I will begin with the various procedural reforms for the criminal justice system that this Bill introduces. The Bill enables bail bonds and suspended sentence bonds to be taken by gardaí and prison officers, respectively, where a person participates in the hearing from custody. This will better facilitate videolink participation in court hearings by persons in custody and free up the time of front-line gardai and prison officers by reducing the need to convey persons in custody to and from the court. The Bill also enables garda staff to certify custody of exhibits used as evidence in criminal proceedings. This will aid in freeing up gardaí for core policing duties, in line with long-standing policies on the civilianisation of non-core Garda functions. Additionally, the Bill lowers the minimum rank of Garda that may apply to court for antisocial behaviour orders in respects of children and adults. While these provisions may in themselves appear modest, cumulatively they have the potential to make an important difference by saving on the time of gardaí and prison officers in particular. I should add that I plan to introduce, by way of amendment to the Bill, further procedural reforms on Committee Stage, including the expanded use of remote hearings in criminal proceedings and the electronic transmission of documents in such proceedings. These measures will allow -----

Sentiment score: -0.07

These measures will allow the courts to bring a more flexible and efficient approach to such proceedings and save further time for gardaí, prison officers and other court users. The Bill also provides for reforms in respect of prisons and penal policy. It supports the programme for Government commitment to extend the use of community sanctions by obliging the courts to consider a community service order in lieu of a prison sentence of up to 24 months duration - the current such threshold being 12 months - and doubling from 240 to 480 hours the number of hours of community service that may be prescribed in such an order. The court will also be required to give reasons where it considers that a community service order should not be made in such a case. There are many offences with penalties of up to 24 months imprisonment where the offender poses no risk to the community and where the public interest may be better served by a person undertaking community service rather than being put in prison. This is particularly so at a time of serious capacity pressures on our prisons. Every case that results in a community service order will help to free up prison spaces for offenders who genuinely warrant imprisonment. While greater use of community sanctions has a role to play in resolving prison overcrowding, I of course accept that it cannot be the only solution. The very large and sustained increases in the Irish population warrant a proportionate increase in prison capacity and the Government is taking the necessary action. As part of the national development plan, €495 million will be invested in building projects to deliver on a plan to build over 1,500 prison spaces by 2031. This will be the largest ever building programme on the prison estate. In the meantime, however, overcrowding is causing a range of issues for our prisons, including an increase in violent incidents. While such violence has always been a risk factor in prisons, the situation now demands a response and it is in this context that the Bill includes provisions to remove the legal barrier to the possession and use of incapacitant sprays by prison officers. The Bill provides that the use of such sprays will be permitted only in accordance with such provision as may be made by me as Minister under the prison rules. Their use will be further underpinned by mandatory policies and procedures along with bespoke training for prison officers, to further ensure that these devices are used appropriately and in line with all applicable health and safety and human rights considerations. The Bill also contains important measures in relation to victims and potential victims of sexual violence and exploitation. I will focus first on the issue of counselling notes. I want to begin by acknowledging the distress that the disclosure of such personal and sensitive information can cause. As Deputies will be aware, section 19A of the Criminal Evidence Act 1992 was drafted with the intention of ensuring an appropriate balance between an accused’s right to a fair trial and a complainant’s right to privacy. It permits an accused person to make an application to the court for the disclosure of counselling records, but also allows the complainant to object to such disclosure, triggering a disclosure hearing. It also allows the complainant to waive their right to such a hearing. Over time, it has become clear that section 19A has not operated as intended. Complainants feel pressured to agree to the waiver, with the result that records are routinely released without judicial oversight. The Bill therefore deletes the waiver provision.

Sentiment score: -0.12

Sometimes I just speak off the cuff. I am giving a speech. Can the Deputy not just listen to me?

Sentiment score: 0.11

I am just giving a -----

Sentiment score: 0.34

Okay.

Sentiment score: 0.23

I am giving the speech.

Sentiment score: 0.34

The Bill, therefore, deletes the waiver provision. Do we have a copy of the speech, by the way?

Sentiment score: 0.00

If Deputies want, I will wait until it comes. If the Ceann Comhairle will stop my clock, I will wait until it arrives.

Sentiment score: -0.11

I was focusing first on the issue of counselling notes. I again acknowledge the distress that the disclosure of such personal and sensitive information can cause. As Deputies will be aware, section 19A of the Criminal Evidence Act 1992, which was amended in 2017, was drafted with the intention of ensuring an appropriate balance between an accused’s right to a fair trial and a complainant’s right to privacy. It permits an accused person to make an application to the court for the disclosure of counselling records, but also allows the complainant to object to such disclosure, triggering a disclosure hearing. It also allows the complainant to waive their right to such a hearing. Over time, it has become clear that section 19A has not operated as intended. Complainants feel pressured to agree to the waiver, with the result that records are routinely released without judicial oversight. The Bill therefore deletes the waiver provision. This means there will be a hearing in all cases, where the complainant is legally represented, and where the defence must make a compelling case that disclosure is required. Therefore, such records will only be released where the judge deems them relevant to the defence. I know that there have been calls for an outright ban on the use of counselling records in criminal trials, including by the Deputy Carthy's Oireachtas joint committee in its pre-legislative scrutiny report. I fully appreciate that such calls are well-intentioned and I fully sympathise with victims and survivors who have deeply felt views in this matter. However, I must not mislead people and I must reiterate that the unambiguous advice of the Attorney General's office is that a blanket ban on the disclosure of counselling records is not compatible with the Constitution. I cannot seek to introduce legislation that is described by the Attorney General as unconstitutional. I am also aware that other stakeholders in the domestic violence sector have also secured their own legal advice. That legal advice has confirmed to them that a blanket ban would be unconstitutional. I want to assure the House that today’s legislation is not the end of the matter. I am committed to restricting intrusions into victims’ privacy rights to the maximum extent permissible under the Constitution. Recent Supreme Court jurisprudence has underlined the high level of constitutional protection given to personal records such as counselling notes. In line with this, on Committee Stage, I intend to introduce a presumption of non-disclosure in this regard. The default position will be that counselling notes are not to be disclosed. This would only alter in the interests of justice, for example if an accused's fair trial rights are at risk. This will ensure that disclosure only takes place in the very small number of cases where it is warranted. Furthermore, I will expand the protections of section 19A to encompass other records containing sensitive personal data, such as medical records, child protection records and other such documents. These reforms will mean that proposed disclosure of any sensitive personal material will only occur where this is absolutely necessary, while any such disclosure will be subject to impartial and objective judicial scrutiny. I expect to be in a position in the near future to bring concrete proposals before this House in this regard. Elsewhere, the Bill introduces measures to protect those at risk from the sexually predatory behaviour of accommodation being offered in return for sexual activity, commonly referred to as “sex for rent”. I reiterate that any attempt by accommodation providers to exploit their position and prey on vulnerable individuals through such arrangements is completely unacceptable. Such actions are an abuse of power, which will not be tolerated under any circumstances. The Bill will make it an offence to offer a tenancy or a licence for accommodation in exchange for sexual activity in lieu of payment. It will also be an offence to advertise such arrangements. The Bill contains a range of other notable provisions, including to enable the use of more advanced DNA analysis techniques in missing persons cases. It is hoped that this will assist in resolving some outstanding missing persons cases and bring closure to families whose loved ones are missing. On the civil law side, the Bill’s provisions include a permanent regulatory basis under which licensed premises may provide outdoor seating on public land. This will provide greater certainty for the businesses concerned and will support economic and social activity in our towns and cities. I will deal briefly with the Bill on a section-by-section basis. The Bill is divided into 33 sections across 12 Parts. Part 1 contains standard provisions setting out the Title, commencement order and a number of definitions of terms within the Bill. Part 2 amends the Firearms Act 1925 and the Prisons Act 2007 to provide a basis for the possession, carriage and use of incapacitant sprays by prison officers in the course of their duties insofar as may be permitted under the prison rules. Part 3 amends the Courts of Justice Act 1936 and the Courts Service Act 1998 to empower the Chief Justice to delegate certain non-judicial functions to other members of the Judiciary. This will allow the Chief Justice to focus on more pressing judicial matters. Part 4 amends the Extradition Act 1965 to empower Garda members to provisionally arrest, without a warrant, persons named in Schengen information system alerts from Switzerland and Liechtenstein, countries that do not participate in the European arrest warrant system. Part 5 contains section 12, which amends the Criminal Justice (Community Service) Act 1983 to oblige the courts to consider a community service order in lieu of a prison sentence of up to 24 months’ duration and to give reasons where they consider that a community service order should not be imposed in such cases. It also increases from 240 to 480 the maximum community service hours that a judge may order, and introduces a tiered timeframe for completion of the work depending on the number of hours of community service ordered. Section 12 also makes various amendments to the Act to allow the director of the probation service to designate staff other than probation officers to perform various functions under the Act. This will increase supervisory capacity in the area of community service while also freeing up more experienced officers to focus on higher-risk and more complex cases. Part 6 relates to criminal evidence. Section 13 amends section 19A of the Criminal Evidence Act 1992 to delete subsection (17) of that section, which provides that complainants may waive their right to non-disclosure of counselling records in applicable proceedings. The effect of this amendment is that a disclosure hearing will be held in all such cases and hence that counselling records will be disclosed only where the judge considers it necessary in the interests of justice. As I have said, while this is a necessary initial step in reforming the law in this area, I believe further amendments may be merited in order to ensure that there is an optimal balance between the rights of complainants and defendants in this area. Section 14 amends the Criminal Justice Act 1999 to provide that Garda staff, in addition to gardaí, as is already the case, may prepare and sign certificates of evidence relating to custody of exhibits. Part 7 amends various enactments to reassign from the Minister for Foreign Affairs and Trade to me, the Minister for justice, the responsibility for certifying Irish citizenship where it is relevant to certain offences. This will bring the enactments in question into line with the approach taken in more recent legislation. Part 8 contains section 21, which amends the Criminal Justice Act 2006 to provide that where a person entering into a suspended sentence recognisance is in custody in a prison, the governor of the prison or a designated prison officer may take the recognisance in the prison. The section also amends the Criminal Justice Act 2006 to lower from superintendent to inspector the minimum rank of garda that may apply to court for an antisocial behaviour order in respect of an adult. Part 9 amends the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 to allow Forensic Science Ireland to generate DNA profiles derived from the analysis of coding DNA for identification purposes in cases relating to missing persons, unknown persons, and unknown deceased persons. Part 10 contains section 24, which amends the Criminal Law (Sexual Offences) Act 2017 to create new offences of offering or advertising accommodation in exchange for sexual activity. Part 11 provides a permanent regulatory basis under which licensed premises may provide outdoor seating on public land. As Members will be aware, the current legal basis, the Civil Law (Miscellaneous Provisions) Act 2021, requires renewal every six months. Part 12 contains miscellaneous amendments. Section 30 amends the Criminal Procedure Act 1967 to provide that where a person entering into a bail recognisance is in custody in a Garda station, the member of An Garda Síochána in charge of the station may take the recognisance at the station. Section 31 amends the Schedule to the Bail Act 1997 to amend an inaccurate legislative reference and to add to the Schedule the offences of coercive control and forced marriage, which are provided for in the Domestic Violence Act 2018. This will mean that where a bail application is made by a person charged with either of those serious offences, a court may refuse the application if it reasonably considers such refusal necessary to prevent the commission of a serious offence by that person. Section 32 amends the Children Act 2001 to lower from superintendent to inspector the minimum rank of garda that may apply to court for an antisocial behaviour order in respect of a child. Finally, section 33 amends the Multi-Unit Developments Act 2011 to facilitate the transfer of functions under the Act from me, the Minister for justice to the Minister for Housing, Local Government and Heritage. This amendment is necessary to negate a legislative absurdity whereby, as a consequence of the necessary transfer of functions order, the Act would otherwise require the Minister for housing to consult with himself or herself when making regulations under the Act. Before I conclude, I would like to inform the House of certain amendments I intend to bring on Committee Stage, which arise from the general scheme of the Bill, some of which I have mentioned already. These include the provisions for the use of electronic technology in criminal proceedings, to which I have already referred; provisions for certificate evidence of presumptive drug testing by gardaí in certain proceedings; and a new Garda power under the Public Order Act to require the removal of face coverings in certain prescribed circumstances. I am conscious that there are differing views in respect of some of the proposals, as reflected in the justice committee's pre-legislative scrutiny, PLS, report. I advise the House that my officials and I are considering whether any modifications to the proposals in question are merited to ensure they are fully robust and workable. I take this opportunity to thank the committee and its Chair, Deputy Carthy, for its consideration of the Bill during pre-legislative scrutiny, and to assure Members that I considered all the recommendations carefully. I will return to that presently in my closing remarks. Separately, my officials are finalising legislative proposals for a scheme to enable the disregard of historical convictions relating to consensual same-sex activity. This was a matter Deputy Nash raised with me yesterday. I responded that I intend to bring forward Committee Stage amendments to the Bill in order to give effect to that. I will very shortly be seeking Government approval for these proposals with a view to bringing them as amendments to the Bill as it progresses through the Houses. This will fulfil another programme for Government commitment and, more importantly, address a historical injustice against those affected, one which everyone in this House wants to see corrected. I will conclude on that point. I look forward to hearing the contributions of Deputies today, to which I will reply at the end of the debate.

Sentiment score: 0.02

I know.

Sentiment score: 0.00

I thank all 13 Deputies for their contributions this afternoon. I also want to acknowledge the presence in the Gallery of survivors of sexual assault and rape and representatives of survivors and, indeed, representatives of those advocating for a disregard scheme. I hope the debate has been sensitive in terms of what they have had to listen to and I hope it has been in some way illuminating. Generally when responding to contributions from Deputies, I like to go through them individually and deal with each Deputy’s contribution. However, I think it would be preferable if in my reply I dealt with the issues thematically as opposed to dealing with individual Deputies because there are a few issues that were raised by all of them. I hope that by my not referring to them individually, they are not offended by me not dealing with their individual speeches. The first broad criticism or comment was that this is far too general a Bill. It is a miscellaneous provisions Bill but the suggestion is that the variety of matters contained within this Bill is far too broad and that I should not be bringing forward a Bill that contains such a wide breadth of issues. From my perspective as a Minister and indeed from the perspective of trying to achieve legislative change for the purpose of benefiting individuals who need legislative change, a miscellaneous provisions Bill is of huge assistance to me. Others in this House if they become Ministers in the future will become aware that. The real benefit of a miscellaneous provisions Bill is that we know that we can expedite legislative change in a process that would otherwise take a considerable period of time. Deputies are correct when they say that in this Bill there are issues dealing with sexual offences, prisons, community service and other areas in respect of the civil legal system and evidence system. If I was to wait for a broad general Bill, whether it be a Bill on prisons or a Bill on community service, I would be waiting a considerable period of time in order to get that legislative change. The advantage of a miscellaneous provisions Bill is that it is like a train that is on the platform leaving shortly on its legislative journey. If I can get the issues onto the train, I know I will be able to effect legislative change quickly. The alternative is just not to try to do that. I put considerable pressure on the Department in respect of it. Let us consider, for example, the issue in respect of the disregard changes. I apologise that the provisions are not before Members today but they will be on Committee Stage. If I was to wait for separate legislation to come along and to be prepared in respect of disregard provisions for those who are convicted of historical same-sex offences, I would be waiting a considerable period of time and, being frank, it would take years for it to be effected, whereas by putting pressure on people to get it into the miscellaneous provisions Bill, I can get it done on a much speedier basis. I want to make that general point on the benefit of a miscellaneous provisions Bill. The predominant issue discussed here is what I am proposing in respect of the counselling notes. I have listened very carefully to what colleagues had to say and, of course, I have read the recommendations of the justice committee after its pre-legislative scrutiny. I will just say something that I think we all will agree on. People may find it difficult to identify that. I think we all agree that the current situation that operates as a result of the Criminal Evidence Act is unacceptable and needs to be changed. At present something is happening that was never the legislative intention of this House. What is happening is that counselling notes are being provided virtually on an ad hoc basis to the defence in criminal proceedings. That was never the intention of this House when the legislation was changed back in 2017. It is my responsibility to ensure that that changes and changes quickly. I was a Member of the Oireachtas back in 2017, as I believe Deputy Coppinger was as well. The intention of the Oireachtas at that stage was that the law would be changed so that the only type of material that would be provided to an accused in a sexual assault or rape trial would be material evidence which contained evidence that was exculpatory that was directly relevant to the individual concerned who was accused of the offence. The only basis for it was that it was assumed there may be information or evidence within a counselling note that is relevant to the innocence of the accused. That was the only reason this was introduced. Regrettably now what is happening is that counselling notes are being handed out on an ad hoc basis; that needs to change. Part of the reason they are being given out on an ad hoc basis is that the process that had been put in place by the Oireachtas back in 2017 where there would be a court hearing is now being waived. It is understandably being waived because victims want to get their trials on quickly. They know that if there is going to be a court hearing in respect of counselling notes, that will delay the process. Regrettably there may be delays as a result of the process I am proposing but it is an essential change in order to ensure that the system that exists at present does not continue. The call from the justice committee and from many Deputies here this afternoon is for the introduction of a ban on counselling notes. I cannot do that. I have to be honest with the people in the Gallery and with the public. I want Deputies to take into consideration what would happen if I did that. If I put in a legislative provision that it should be impermissible to gain disclosure of counselling notes and defined counselling notes in a criminal prosecution, inevitably a person, who is accused of a criminal offence and who said that they had reason to believe there was material evidence within counselling notes, would bring a challenge to that legislation. They would say that legislation has been introduced by the Oireachtas which has made inaccessible to disclosure a category of evidence that has never previously been inaccessible. They would say that there was material within that category of evidence that if it was disclosed to a jury would be exculpatory of the accused. Sometimes we hear people saying it might be constitutional or it may be unconstitutional. I regret to say that if we were to introduce a legislative provision which said there is a category of evidence that can never ever be used in a criminal trial, I think it is fairly clear the courts would say that is unconstitutional. There is nothing else where we say, "You can't have any access to that". Deputy Coppinger referred to the issue of privilege. On Committee Stage, I will seek to try to change the presumption so that there is a presumption for non-disclosure. In effect, I will give a stronger protection to counselling notes to ensure that it should be the exception that they be disclosed and they would only be disclosed if having looked at the counselling notes, a judge determines there is information in those that would be of real benefit to an accused as it could undermine the narrative of what has been said against him and it would be exculpatory for the purpose of the trial. That is the only way that this should ever have been used. I listened very carefully to what Deputy Butterly had to say in respect of a trial that had been spoken about earlier on. That should never have been brought in. That is not what the statutory provision that we introduced was introduced for. I ask colleagues to be considerate in terms of what we are trying to do. I will bring in further amendments on Committee Stage. I have to be honest with people and I do not want to mislead people. The Oireachtas cannot ban counselling notes without putting in place a real risk that a subsequent trial involving a complainant and a survivor or victim before the courts would be undermined because a successful legal challenge would be brought against it. Another issue raised was in respect of pepper spray. Pepper spray is for the purpose of protecting workers, for the protection of prison officers. I believe it will be seldom used. Community service orders should be introduced. We need to give more options to the Judiciary in respect of penalties that can be imposed upon those convicted of criminal offences. At present we do not. Actually, the fault lies with us in the Oireachtas. Every time we create a new offence, we simply state a fine for a summary conviction, or a term of imprisonment or fine if convicted on indictment. We are trying to give a broader range of options to the Judiciary so judges can take that into account when it comes to imposing a penalty on the individual. On the Committee Stage amendments, I would have preferred if I had been able to come here with the whole Bill together as opposed to saying some further provisions will be coming on Committee Stage. As Deputy Lahart said, I am conscious I am bringing forward these proposals because behind each individual proposal are people. Behind the counselling notes proposal, there are survivors of sexual abuse and there are victims elsewhere whom I am trying to help.

Sentiment score: 0.04