patsh
24/02/2005, 8:26 AM
McDowell's piecemeal legislation
By Mary Raftery
In the midst of the current furore over Sinn Féin, the IRA and criminal activity, there is a piece of legislation quietly making its way through the Dáil. This is the Criminal Justice Bill, introduced at Second Stage last week by the Minister for Justice, Michael McDowell, writes Mary Raftery
The Bill, which confers extensive and far-reaching new powers on the Garda, has been criticised by the Human Rights Commission which has pointed out that its concerns have been ignored by the Minister.
Michael McDowell's speech on the Bill in the Dáil last week was delivered entirely in Irish. While there is nothing intrinsically wrong with this, it is somewhat of a peculiarity for such an important piece of legislation. My Irish is not sufficiently fluent to allow me to understand his 23-page speech on the Bill. That, it could fairly be argued, is my problem. However, to propose such measures in a language neither spoken nor wholly understood by the overwhelming majority of people in this country is not a useful contribution towards clarity of debate on issues which go to the heart of the rights of every Irish citizen.
As the Dáil Committee on Justice heard submissions on the Bill yesterday (in English, thankfully), it was apparent that there is very real concern across all parties over a number of its elements. There is particular anxiety that a Bill of this nature should have been allowed reach a Second Stage reading in the Dáil when it is, by admission of the Minister, glaringly incomplete. McDowell has already indicated that he intends the Bill to deal with a further 11 provisions, as yet unspecified. Fine Gael has condemned as "outrageous" this approach.
Fianna Fáil backbencher Barry Andrews, himself a barrister, has expressed reservations about a number of aspects. He pointed to its rushed nature, following on the collapse of the Keane murder trial in Limerick. "Given that the rules of evidence have developed over a century, that we should decide after four days' deliberation to turn some basic rules on their head is worrying," he said last week.
The provisions which are causing the greatest concern include the doubling of maximum detention time before charges must be laid from 12 to 24 hours for all suspected offences; the removal of the necessity to have a judge sign a search warrant, conferring that power instead on a Garda superintendent; the admissibility of statements from those who subsequently retract them; and the right forcibly to take saliva samples from a suspect without his/her permission.
Further provisions give wide-ranging powers to the Garda to issue what are called fixed charge offences. According to the Human Rights Commission, this will give individual members of the Garda "wide discretion to be judge and jury" in relation to charging and fining people for "offensive conduct", a term which the commission identifies as being ill-defined. It points to abuse by police of similar provisions in the UK. It adds that "there is also the risk that such powers will be used disproportionately against certain groups in society such as members of the Traveller community, other ethnic minorities and protesters". Further, it could even have the effect of criminalising groups such as the homeless.
Underlining its detailed analysis of each of the problem areas with the legislation is the Human Rights Commission's contention that there is simply no evidence to indicate that any of this erosion of civil rights is necessary.
But then, we have seen an increasing pattern over the past two years that the current Minister for Justice does not place great store by evidence. Many of his statements during last year's citizenship referendum were unsupported by the facts. His famous "I know what I know" claim was his only response when asked to provide evidence for his allegations that journalists were paying gardaí for information. And most recently, of course, there is his unsubstantiated identification of three named Sinn Féin leaders as criminals and members of the IRA's army council.
It has often happened that the combination of increased Garda powers and the curtailment of civil liberties has coincided with periods of intense political turmoil. This both provides apparent justification for such measures and also serves to distract attention from the kind of scrutiny to which they should be subject.
Defending his legislation, McDowell has said that the balance of rights "has shifted too far in favour of the accused". The new Bill, he claims, is simply an updating of the law to meet the needs of a modern society.
What is far more likely to meet those needs is properly focused research to discover the precise requirement for reform within the criminal justice system. This should clearly inform the introduction of complete legislation, rather than the current alarmingly piecemeal approach. In a climate where the Garda's credibility is under severe pressure on a number of fronts, and where the Minister himself is much given to making allegations without evidence, the dangers of introducing draconian new legislation are all too evident.
© The Irish Times
By Mary Raftery
In the midst of the current furore over Sinn Féin, the IRA and criminal activity, there is a piece of legislation quietly making its way through the Dáil. This is the Criminal Justice Bill, introduced at Second Stage last week by the Minister for Justice, Michael McDowell, writes Mary Raftery
The Bill, which confers extensive and far-reaching new powers on the Garda, has been criticised by the Human Rights Commission which has pointed out that its concerns have been ignored by the Minister.
Michael McDowell's speech on the Bill in the Dáil last week was delivered entirely in Irish. While there is nothing intrinsically wrong with this, it is somewhat of a peculiarity for such an important piece of legislation. My Irish is not sufficiently fluent to allow me to understand his 23-page speech on the Bill. That, it could fairly be argued, is my problem. However, to propose such measures in a language neither spoken nor wholly understood by the overwhelming majority of people in this country is not a useful contribution towards clarity of debate on issues which go to the heart of the rights of every Irish citizen.
As the Dáil Committee on Justice heard submissions on the Bill yesterday (in English, thankfully), it was apparent that there is very real concern across all parties over a number of its elements. There is particular anxiety that a Bill of this nature should have been allowed reach a Second Stage reading in the Dáil when it is, by admission of the Minister, glaringly incomplete. McDowell has already indicated that he intends the Bill to deal with a further 11 provisions, as yet unspecified. Fine Gael has condemned as "outrageous" this approach.
Fianna Fáil backbencher Barry Andrews, himself a barrister, has expressed reservations about a number of aspects. He pointed to its rushed nature, following on the collapse of the Keane murder trial in Limerick. "Given that the rules of evidence have developed over a century, that we should decide after four days' deliberation to turn some basic rules on their head is worrying," he said last week.
The provisions which are causing the greatest concern include the doubling of maximum detention time before charges must be laid from 12 to 24 hours for all suspected offences; the removal of the necessity to have a judge sign a search warrant, conferring that power instead on a Garda superintendent; the admissibility of statements from those who subsequently retract them; and the right forcibly to take saliva samples from a suspect without his/her permission.
Further provisions give wide-ranging powers to the Garda to issue what are called fixed charge offences. According to the Human Rights Commission, this will give individual members of the Garda "wide discretion to be judge and jury" in relation to charging and fining people for "offensive conduct", a term which the commission identifies as being ill-defined. It points to abuse by police of similar provisions in the UK. It adds that "there is also the risk that such powers will be used disproportionately against certain groups in society such as members of the Traveller community, other ethnic minorities and protesters". Further, it could even have the effect of criminalising groups such as the homeless.
Underlining its detailed analysis of each of the problem areas with the legislation is the Human Rights Commission's contention that there is simply no evidence to indicate that any of this erosion of civil rights is necessary.
But then, we have seen an increasing pattern over the past two years that the current Minister for Justice does not place great store by evidence. Many of his statements during last year's citizenship referendum were unsupported by the facts. His famous "I know what I know" claim was his only response when asked to provide evidence for his allegations that journalists were paying gardaí for information. And most recently, of course, there is his unsubstantiated identification of three named Sinn Féin leaders as criminals and members of the IRA's army council.
It has often happened that the combination of increased Garda powers and the curtailment of civil liberties has coincided with periods of intense political turmoil. This both provides apparent justification for such measures and also serves to distract attention from the kind of scrutiny to which they should be subject.
Defending his legislation, McDowell has said that the balance of rights "has shifted too far in favour of the accused". The new Bill, he claims, is simply an updating of the law to meet the needs of a modern society.
What is far more likely to meet those needs is properly focused research to discover the precise requirement for reform within the criminal justice system. This should clearly inform the introduction of complete legislation, rather than the current alarmingly piecemeal approach. In a climate where the Garda's credibility is under severe pressure on a number of fronts, and where the Minister himself is much given to making allegations without evidence, the dangers of introducing draconian new legislation are all too evident.
© The Irish Times