The publication of the report of the Committee Reviewing the Offences Against the State Act has been long-awaited. It was promised in the aftermath of the signing of the Good Friday Agreement, when hopes were high of a normalisation of political life in Northern Ireland and the consequent disappearance of the need for the emergency legislation that marked the legal systems of both jurisdictions.
Those hopes were shown to be premature by the Omagh bombing. Further emergency legislation was rushed through the Dáil in response to that atrocity. That legislation was then made part of the body of legislation brought under the remit of the committee.
The Offences Against the State Act and its amendments were characterised by the fact that they were, like the post-Omagh legislation, reactive in nature. The original Act was passed in 1939, following the outbreak of World War II. It set up the Special Criminal Court, which operated for many years as a military court. The outbreak of the Northern Ireland conflict in 1969 brought further legislation, including the Emergency Powers Act of 1976. In general, therefore, they were passed without the opportunity for reflection and reasoned debate that should characterise good legislation.
This review is the product of much research, reflection and reasoned debate. It is clear from the report that the debate was vigorous, and reflected the clash of opposing philosophical and legal views on the place of such emergency legislation in a democratic society. On the one hand the majority, including senior civil servants, members and former members of the Garda Síochána, along with respected human rights lawyer Dr Gerard Hogan, took the view that the threat from dissident republicans, and the increased threat from organised crime, justified the retention of many of the measures contained in the Offences Against the State Act, including the continued operation of the Special Criminal Court.
The minority, led by veteran jurist Mr Justice Anthony Hederman, who was supported by Professor William Binchy of Trinity College and Professor Dermot Walsh from the University of Limerick, considered that the new post-Good Friday Agreement situation meant it was no longer necessary to depart from best practice in a normal liberal democracy.
Given the depth of differences between the two approaches, the fact that the debate did not lead to an agreed set of proposals is to be welcomed. What those interested in the reform of the law in this area can now draw on is the fully-argued opinion of all those who have devoted four years of their lives to considering Irish emergency legislation in the context of the full array of international human rights law and covenants, and our international obligations. The debate will be the richer for it. Mr Justice Hederman is to be congratulated on ensuring that both the minority and majority views are fully aired in this report. The Minister for Justice has appealed for a full, and informed, debate before reforming legislation is enacted.