The next government is unlikely to make more than minimal changes to the Offences Against the State Acts, writes Carol Coulter, Legal Affairs Correspondent
The Belfast Agreement, signed in April 1998, looked forward to "the development of a peaceful environment [AND]. . . a normalisation of security arrangements and practices" in the island of Ireland.
Accordingly as part of "a wide-ranging review of the Offences Against the State Acts, 1939 to 1985" the Government set up, in May the following year, a committee to review these Acts, and the further emergency legislation introduced in the wake of the Omagh bombing.
Under the chairmanship of Mr Justice Anthony Hederman, its members came from diverse backgrounds. They included Prof William Binchy, professor of law in Trinity College and a member of the Human Rights Commission since December 2000; Dr Gerard Hogan SC, also from Trinity College; and Prof Dermot Walsh, from the University of Limerick. All three have a strong interest in constitutional and international human rights law.
The committee also included two senior Garda officers, a former deputy commissioner, Mr Patrick J. Moran, and an Assistant Commissioner, Mr Patrick O'Toole; an official from the Department of Justice, Mr Michael Flahive; and Mr Barry Donoghue from the Office of the Director of Public Prosecutions, institutions which use the provisions of the Acts under review.
Its other members were Mr Richard Barrett from the Attorney General's office, Mr John Biggar from the Department of Foreign Affairs, Mr Eamon Leahy SC, Mr Michael O'Donoghue from the Department of Defence and Ms Ann Whelan from the Department of the Taoiseach.
It is clear from the report that there were deep philosophical differences within the committee. On all the key issues Mr Justice Hederman, Prof Binchy and Prof Walsh register minority recommendations which tend towards the dismantling of much of the emergency legislation. The majority favour amending the legislating while leaving its central provisions in place.
On a number of these issues another minority, represented by Mr Flahive and Mr O'Toole, favour leaving the legislation untouched as far as possible.
The committee was asked to look at the new situation created by the Good Friday agreement; the threat posed by international terrorism and organised crime; and Ireland's obligations under international law.
It is clear that different members gave different emphasis to each. Some considered that the situation created by the Belfast Agreement meant that the threat from militant republicanism was significantly reduced, and that the legal system should therefore be brought into line with best practice in any normal liberal democracy.
They considered that the threat from organised crime and dissident republicans was not so unique as to warrant major departures from democratic legal norms such as internment and special courts. According to this view, the presumption should be in favour of dismantling emergency legislation unless a necessity for specific provisions could be proved.
This viewpoint also emphasises the development of international human rights law since the Offences Against the State Act was first introduced in 1939, and need for it to be given full weight in our legal system. The European Convention on Human Rights and the International Covenant on Civil and Political Rights came into being after the war.
The other view emphasises the continued threat, especially from dissident republicans, and increased threat from organised crime. The danger of the intimidation of juries has not disappeared with the Good Friday agreement, it is argued, and the Garda Síochána needs the powers granted under the Offences Against the State Act to carry out a successful fight against organised crime.
So the committee came to unanimous agreement on very little, only a general need to amend the Offences Against the State Acts. When it came to specific measures, like the statutory provision for internment, the existence of the Special Criminal Court, its use for "ordinary" as well as paramilitary crime, there were majority and minority recommendations, with the chairman of the committee heading the minority. Even within the majority there were sometimes dissenting voices.
The initiative therefore passes back to the next Minister for Justice, who can take the majority recommendations and ignore the views of an influential minority, or who can open up to public debate the whole issue of emergency legislation in the new context of peace.