OFFENCES ACT REVIEW: The Offences Against the State Acts Review should generate a wide-ranging discussion, writes Carol Coulter, Legal Affairs Correspondent
The report on the Offences Against the State Acts is complex, detailed and comprehensive. But what is most noticeable about it is that it incorporates widely diverging views on the necessity for, and use of, the Acts under review.
Given the fundamental issues it addresses about the nature of our democracy, that is hardly surprising.
Essentially it contains two views, that of the majority, which favours amending the legislation while keeping its key elements in place, and that of the minority, headed by the committee chairman, Mr Justice Hederman, which favours dismantling much of it as incompatible with a modern democratic state.
However, even within these two groups it is clear that there were sometimes minorities who took a dissenting view.
Therefore, on the various measures contained in the body of legislation that makes up the Acts, be they the continued existence of the Special Criminal Court, its use for non-terrorist "ordinary" crime, the statutory provision for internment, the right of a suspect to have a solicitor present during questioning, whether inferences should be drawn from a suspect exercising his right to silence, there are proposals from the majority and different proposals from the minority.
Speaking at the publication of the report yesterday, the Minister for Justice, Mr McDowell, stressed the need to study all the issues it raised carefully, and to have a full, public debate before rushing to conclusions about this body of legislation that has been a central feature of the criminal justice system since 1939.
The first Offences Against the State Act was passed in 1939, after the outbreak of the second World War, and various amendments were passed since, usually in response to an outbreak of violence in the North or an associated atrocity.
However, as the committee pointed out, the central core of the legislation came before the enactment of various international human rights covenants, and the law has never had a thorough review in this context.
The impetus for this review came from the signing of the Belfast Agreement in April 1998. The British government repealed its anti-terrorism legislation, and a substantial review of emergency legislation relating to Northern Ireland took place.
Meanwhile, both governments were also preparing to incorporate the European Convention on Human Rights into domestic law. The British government did so through its Human Rights Act two years ago, while a similar Bill in this jurisdiction fell with the last government and is to be reintroduced.
This convention, along with various UN covenants, formed the backdrop for the consideration of the Offences Against the State Acts when the committee was set up. The committe consulted with the international bodies mandated with monitoring these conventions, and also with organisations responsible for dealing with international crime and terrorism, like Europol and Interpol.
The committee stressed the need to consider the issues in the context of fundamental democratic principles. "It is plain that great dangers for human rights arise in this area," the report says.
"Emergency legislation may be abused for pragmatic political purposes; special powers, introduced for special reasons, may continue to be used when those reasons no longer justify this, or for purposes extending beyond those that warranted their original introduction; and powers of detention or interrogation may be used cruelly or inhumanely upon innocent (or even guilty) people."
While acknowledging that it is generally accepted that measures can be taken to ensure that civil society can flourish, the report states that more difficult questions arise about the circumstances where such measures are appropriate, and what they should be.
Issues for consideration include what constitutes a threat to the State - is it an armed insurrection, or could it include arguing for a radical transformation of society that would impact on the continuity of the State?
That could lead to restrictions on human rights such as the freedom of speech, association and assembly.
What about advocating a political theory that justifies the use of political violence, while not actually engaging in any act of violence?
The report points out that, so far, the courts have not given definitive answers to these and similar questions.
Equally, other human rights, notably the right to life and bodily integrity, require measures to protect citizens from attack.
The committee was faced with reconciling these often conflicting considerations. It is hardly surprising that, sometimes, it failed to achieve a consensus on the specific weight to give to each.