Human Rights in Ireland

The issue of reforming the political system is a live one at present and, as we look forward to a general election and the opportunities that it might bring, it is indeed important to consider the changes that might be made to our political system so as to increase its efficiency, its transparency, and its ability to properly represent the interests of the Irish people.

This post does not put forward any radical suggestions for change, but pleads, instead, for our future political representatives and legislators to consider two related basic points:

1. Legislation is not the answer to everything; and

2. Rushing through significant legislative proposals without appropriate time for discussion is both disrespectful to the political process and reckless in terms of their impact.

While my focus here is on the criminal justice system, most of what I have to say may equally apply to other parts of Irish society.

1. Legislation is not a panacea

In recent years the legislature, or, more accurately, the government (whose majority can push through any legislation it supports), seems to have been of the opinion that the best answer, or maybe the only answer, to a perceived crisis in the criminal justice system is to legislate, legislate, legislate. Legislate for greater garda powers, legislate for more criminal offences, legislate for longer periods of post-arrest detention for suspects, legislate for inferences to be drawn from pre-trial silence, legislate for garda opinion evidence to be given at trials, legislate for detention extension hearings to be heard in the absence of all but the judge and the prosecution lawyers and witnesses, legislate for the use of the Special Criminal Court for a whole range of offences, and so on. The default position of the legislature/government for the past 10 to 15 years seems to have been to introduce criminal justice legislation in the throes of perceived emergency.

Rarely, if ever, in those years has there been a call for calm in the heat of a crisis. Rarely, if ever, has there been a suggestion that further research is needed into the specific matter which seems to be causing a breakdown in the administration of criminal justice. Instead, up pops the politician, armed and ready to pick away at the fundamental underpinnings of our system of criminal justice which have served us well up until Crisis X, when the overwhelming need has suddenly become apparent to alter those fundamentals.

And it is not just the government parties who are to blame. On the run from the media and an electorate who seeks only, one could be led to believe, the chipping away of fundamental rights and the bulking up of garda powers, members of the opposition all too often support the rush to legislation and ask only whether the proposed measures go far enough.

Of course, legislation has a role to play. And garda powers do, from time to time, require adjustment. But legislation enacted in haste, in the heat of a crisis, can often go much further than it would if enacted after calm, considered, evidence-based reflection. Much of the legislation enacted in haste achieves little. It looks good, it shows that the politicians are doing something, but its negative effect on the traditional protections of the criminal justice process often far outweighs any true added-value which it contains in terms of deterring criminal behaviour, detecting criminal behaviour or reforming criminal offenders.

It seems trite to say so, but instead of spur-of-the-moment, knee-jerk, whitewash legislation, what is needed to address the issue of crime in Irish society is investment in disadvantaged communities, in education, in social strategies and, indeed, where appropriate, investment in putting more gardaí visible on the beat.

It would be nice to imagine an Ireland where considered, open discussion on matters of fundamental importance to the criminal justice process was the norm, even in the wake of a significant tragic event, rather than a rushed jolt of legislative activity which negatively interferes with the order of the process without achieving a sizeable benefit.

In short, legislate in haste, repent at leisure.

2. Appropriate Time for Discussion

This leads on to the second point. All too often in the past number of years we have seen legislation rushed through without time for discussion either in the Houses of the Oireachtas or in the public domain prior to enactment. Lengthy Acts which introduce fundamental changes and affect significant rights of citizens have been rushed through, not only in times of crisis, but also at the end of parliamentary sittings. In fact, the rushing through of statutes at the close of the Dáil session before summer recess has become so frequent that the label “July legislation” has come to hold specific, negative meaning. 

One example of such legislation is the Criminal Justice (Amendment) Act 2009, which provided, among other things, for:

• a new definition of a “criminal organisation”;
• the use of the non-jury Special Criminal Court for specific “organised crime” offences;
• the use of garda (or former garda) opinion evidence in relation to the existence of a particular criminal organisation;
• detention extension hearings to be heard in the absence of all persons except the judge, prosecution lawyers, prosecution witnesses and any necessary court staff;
• and, the drawing of inferences from a suspect’s pre-trial failure to “answer a question material to the investigation of the offence”.

This legislation was proposed in the aftermath of the tragic murder of Roy Collins in Limerick on April 9 2009. A family member of Mr Collins had given evidence in a “gangland crime” trial five years previously and it was generally believed that his murder was related to this. The Oireachtas enacted the Criminal Justice (Amendment) Act 2009 in the wake of this murder, despite some controversy. 133 lawyers objected to its introduction by way of a letter to The Irish Times and the President considered referring the Bill to the Supreme Court under Art 26 of the Constitution. However, following consultation with the Council of State, she signed the Bill into law on July 23 2009 (arguably making the correct decision so that the legislation might be constitutionally tested in the context of a concrete case in the future).

In terms of the legislative process which took place around this Act the following is true:

• the Bill (No 45 of 2009) was first presented on June 28 2009 and, as noted above, it was signed by the President and enacted into law on July 23 (just 19 working days later);
• the Second Stage discussion of the Bill in Dáil Éireann took 5 hours, during which 16 different members of the Dáil spoke on the Bill;
• at one point during the second stage discussion in the Dáil it was noted that there was not a quorum of 20 people present in the chamber and suggested that perhaps those in the Dáil bar might be interested in sitting in on the discussion;
• Committee and remaining stages took 5 hours, so a total of 10 hours was spent discussing this seriously significant legislation in the Dáil, over the course of just three days;
• the total Seanad discussion time was 8 and a half hours, during one day, which gives a grand legislative discussion time of 18 and a half hours for this wide-ranging Act which shifted the traditional criminal justice protections on a number of serious matters.

A very brief look through the pages of www.irishstatutebook.ie provides interesting statistics also. The number of statutes enacted in any given year has not altered significantly since the early thirties. In 1932, for example, 34 Public Acts were enacted, the same number in 1950, and in 2010 there were in fact just 32 Acts. However, the depth of those Acts in terms of content and bare number of sections has changed considerably. Taking a random comparison of 1960 and 2010, the same number of sections of Acts which were enacted in all of 1960 (665) had already been enacted by July 14 2010. The total number of sections contained in Acts enacted in 2010 and listed on www.irishstatutebook.ie at present (two Acts are yet to be published fully on that site) is 1301, almost double the 1960 total. It is surely more than important that our elected representatives who are responsible for bringing this wealth of legislation into being should provide adequate time for discussion of the contents of that legislation.

When people these days refer to Seanad Éireann as a mere “talking shop”, I sometimes wonder what is so wrong with having a talking shop. Surely we need to discuss proposals which alter the criminal justice system, which remove, for example, the right to a jury trial, which allow, for example, for in camera ex parte detention extension hearings and so on. If we allow for such significant provisions to be enacted without discussing their necessity, their potential impact, their significance, their constitutionality, their compliance with the European Convention on Human Rights, their value in real terms (rather than political vote-winning terms), their negative effects and so on, then we are in dangerous territory indeed. In my view both the Dáil and the Seanad need to find more time to discuss legislation, particularly such significant legislation. Maybe minimum time limits for discussion of certain types of legislation ought to be set down (which could only be avoided by specific evidence of urgent necessity), or proper, effective provision could be made for opposition parties to force government parties to extend the time for discussion of certain types of legislation.

However it is achieved, consideration and discussion of all changes to the criminal justice system, in particular, is both warranted and necessary. One alteration which may appear minor or stand-alone can in fact, combined with other alterations, amount to a shift in the criminal process which may not be necessarily intended. The Irish criminal justice system has shifted significantly from its due process heritage over the past decades, towards a “crime control” model, with its centre of gravity shifting from the courthouse to the garda station. This has occurred in a piecemeal manner, often through crisis-reactionary legislation which has not been fully discussed or calmly considered outside of the heat of the emergency of the day.

The simple point I am making here, I suppose, is what British Telecom have been saying for years – It’s Good to Talk.

As we look to the future, do we really believe that there is going to be a radical change in the Irish political process? Maybe, maybe not. But at least the opportunity should be taken to rectify some of its most basic failures.

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