Amendments Nos. 1 to 3, inclusive, and 10 are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 1:

In page 9, to delete lines 15 to 18.

Amendments Nos. 1 to 3, inclusive - are being considered together because they relate to the deletion of all sections of the Bill that provide for the introduction of the use of incapacitant spray, or pepper spray, by members of the Irish Prison Service, IPS. In that context, I take this opportunity to indicate our opposition to section 5. We believe this is a retrograde and counterproductive step that is likely to negatively impact relations between prison staff and those in custody in Irish prisons, destabilising and undermining relationships that rely on trust and harmony. Ireland is one of a handful of European countries where prison officers are not currently equipped with these sprays, or, indeed, with other weapons, relying instead on their capacity to manage and de-escalate conflict without the use of force or violence. This is much like the majority of gardaí not being equipped with weapons or pepper spray. Ireland's model of policing is by consent, and we should strive to protect that.

While the assumed intention behind the introduction of incapacitant sprays is to promote greater safety in our prisons, it is clear from examining the findings in other jurisdictions that the introduction does not positively impact levels of violence in prisons and, in actual fact, can have the opposite effect. Looking to the UK, studies have demonstrated that the disproportionate use of PAVA, a type of incapacitant spray, against minority communities in prisons in the UK, including black, Muslim and disabled prisoners, has the effect of normalising the use of violence against particular groups within the prison environment. Being within the prison environment negatively impacts the health and well-being of those in custody, especially when the environment is as chronically overcrowded to the extent that the Irish prisons are at the moment. Adding chemical irritants into mix is a cause for grave concern, given that the chemical irritants can lead to severe health consequences, including death. It is essential to consider the vulnerability of specific individuals to these chemicals especially in enclosed and overcrowded spaces.

The future prison capacity working group report, published in July last year, highlighted compromised safety and security in Irish prisons, primarily as a result of chronic overcrowding. Irish prisons are severely overcrowded, routinely operating at 120%, or higher, of the network's capacity. Significant numbers of people in custody are sleeping on cell floors. This is in contravention of both IPS and Council of Europe committee for the prevention of torture safe standards and best practice.

Looking again at the UK, research undertaken in England and Wales by the Ministry of Justice has highlighted the link between overcrowding and a rise in prisoner-on-prisoner assaults, with prisoners in overcrowded cells being 19% more likely to be involved in an assault. The most recent data on the rates of violent incidents and assaults released by the IPS highlights notable fluctuations during 2023 and 2024. The data demonstrate that there has been a reported 3% decrease in direct physical assaults by prisoners on prison staff, while aggressive and threatening incidents have fallen by 8%. Physical interventions in prisons, where staff must intervene physically, are down by 25%. These figures suggest some improvement in the safety of the prison environment for staff.

There has been a concerning 31% increase in the number of direct physical assaults by prisoners on other prisoners over the same period, which is a significant rise. Upon closer examination of the data, it becomes evident that the trends are firmly established in Irish prisons. Figures released by the IPS in 2023 indicated a 14% reduction in the number of physical assaults by prisoners on staff between 2022 and 2023 but, conversely, a significant rise in prisoner-on-prisoner assaults was observed, with an increase of 74%.

The 31% increase in prison-on-prisoner assaults in Ireland in 2024 further underscores the correlation between overcrowding and rising violence in the Irish context. How incapacitant sprays will positively interrupt this trend is entirely unclear. Indeed, even the Department of justice in its own policy paper acknowledges the fact that international evidence demonstrates that the introduction of incapacitant sprays in custodial sentences is likely to cause an increase in the number of use-of-force events in Irish prisons.

In this context, we fundamentally disagree with the introduction of incapacitant sprays in custodial settings and are therefore seeking the outright deletion of the relevant sections, as was sought by the justice committee. It is important. I regard the Minister as quite a logical man. Overcrowding is the reason we may see an increase in prisoner-on-prisoner violence. The response is to introduce another layer of violence, that is, incapacitant sprays, into the mix rather than reducing the number of people who are in prison.

When we reduce the number of prisoners in prison settings, violence decreases. The most logical thing to do would be to ensure the large number of people currently in prisons for minor convictions - up to 70% of prisoners are sent to prison for minor convictions - would not be in prison for those convictions. Can the House imagine that we only have 30% of prison space left for more serious crimes? If we freed up the rest of the space, we would not be talking about introducing incapacitant sprays or weapons or anything like that which can be used. We would be looking at more positive interventions.

Rather than thinking of it as a safety concern and deciding that because of overcrowding or prisoner-on-prisoner violence we need incapacitant sprays, I ask the Minister to consider that the answer is to reduce the number of people in prisons so that the relationship between prison officers and prisoners can be further enhanced. The success of an institution like a prison is based on how you build relationships; it is relationship-based. When there is a potential threat between a prison officer and a person incarcerated in prison, the idea that somebody could reach for incapacitant spray interrupts the potential relationships that could be built between prison officers and those in prison. We could do things that would have a much longer and more sustainable impact on how people and prison officers experience their time in prison, and on how people integrate back into society. If you have endured incapacitant spray within prison, you will have even less trust for authority than you had when you went in.

I ask the Minister to consider whether these are logical, evidence-based responses to the issues of overcrowding and over-use of short sentences within the Irish prison system.

Is amendment No. 10 grouped with amendments Nos. 1 to 3?

Yes. Does the Senator wish to speak on amendment No. 10?

Yes. I welcome the opportunity to speak on this amendment. I agree with Senator Ruane. My amendment is pretty straightforward. It seeks to ensure that the Minister will, within 12 months of the commencement of this legislation, report to the Houses of the Oireachtas on "the operation [and impact] of the provisions relating to ... incapacitant spray" in prisons. Prison officers have an extremely difficult job and they must have the ability to protect themselves. When I raised this issue on Second Stage, the Minister said that he wants to protect prison officers. Nobody disputes that they must have that protection. However, I am concerned this measure risks treating the symptom rather than addressing the underlying problem.

We know our prisons are under enormous pressure. We have heard recent reports of more than 500 prisoners sleeping on mattresses on floors. The Prison Officers Association has described the situation as a "national scandal", and has warned that overcrowding is contributing to increased violence. If you add more violence to violence, are you increasing that risk? Does violence breed more violence, intimidation and tension within prisons? Is it wise to introduce incapacitant spray in this context? It seems more like putting a band-aid on the issue instead of addressing the root cause of these incidents.

Under budget 2026, the Minister announced €495 million for prison infrastructure, including a new prison in Cork, as well as additional accommodation in Wheatfield, Midlands, Castlerea, Mountjoy, Cloverhill, Portlaoise, Limerick and Dóchas prisons, as well as the commencement of construction at Thornton Hall. I would welcome an update from the Minister on these projects and how they are progressing, as well as details of when the additional capacity will come on stream.

I note the provisions in section 15 encouraging greater consideration of community service orders. While community service can be appropriate and beneficial in many cases, particularly in supporting rehabilitation, custodial sentences remain necessary for serious and violent offences. The amendment simply asks that we measure the impact of this legislation and determine whether it genuinely improves the functioning and safety of our prison services.

I thank Senators for the amendments they put down on Committee Stage, for which I am here today and back again tomorrow. I thank Senator Ruane for her amendments Nos. 1, 2 and 3, which seek to amend section 4 of the Bill by deleting the amendments I am proposing to the Firearms Act, which refer to the use and capacity of the Irish prison service to have incapacitant spray.

At the outset, I acknowledge that Senator Ruane has consistently displayed an interest in penal matters and has very good knowledge of the pressures our prisons are under. She has worked very well in the area of penal reform. Since I became Minister, I have visited every prison in the country, except the Midlands Prison. I have visited 12 of the 13 prisons, and I am going to go back to start visiting them again. Every time I go, I meet the staff and the governors and I always make sure I also meet the prisoners. As the Senator knows, there is a lot of good work going on in Irish prisons at present. It is not a simple narrative because, unquestionably, there is overcrowding in Irish prisons. I am responsible for ending that and seeking to reduce it. Last year, I got authority from the Government to invest up to €500 million in further prison construction. I do not believe all our solutions involve building more prisons. However, when you look at how our population has risen in the last ten to 15 years, it is clear that our prison capacity has not increased correspondingly. The main reason we have overcrowding today is because we never increased capacity. Work being done on estates by the Irish Prison Service is done very quickly and professionally. Recently, I went to Castlerea where I saw the new buildings that have already been built in the grove with the money I got authority for in May 2025. It is a small development but it has been constructed within one year. There will be further construction starting in Cloverhill soon. I believe we will see an increase in the prison estate and its capacity. That is essential to ensure prisoners are not exposed to overcrowding.

The amendments that have been put down by Senator Ruane - amendments Nos. 1, 2 and 3 - seek to stop the legislation that I am introducing from enabling prison officers to have incapacitant spray. I am not going to agree to the amendments because I believe it is necessary and appropriate that prison officers should have access to mechanisms for defending themselves. I say that notwithstanding the fact that when I have gone to all the prisons, one of the things that does not surprise me but is very noticeable is the very good relationship that exists between prisoners and prison officers. People who have not been into prisons may be surprised by that, but there is an excellent relationship that is predominantly one of trust and engagement between prisoners, prison officers and prison staff. We do not see many attacks on prison officers by prisoners. Regrettably, since I have become Minister, there have been attacks upon them. It is essential that prison officers are properly equipped to protect themselves, their colleagues and, of course, the prisoners in their care from serious and potentially lethal violence. To that end, I believe it is necessary for prison officers to be able to use incapacitant sprays in appropriate circumstances where the situation may demand it. It does not mean that once this law is enacted, or if this law is enacted, prison officers will start going around using incapacitant spray with reckless abandon.

It is important to point out that Ireland is one of a tiny number of European states whose prison officers are not currently allowed to use this protection in any circumstances.

The vast majority of other European jurisdictions have long since determined incapacitant spray to be an essential item in this regard. The evidence shows that such sprays do not cause long-term health effects and that, used appropriately, they can prevent or minimise incidents of serious prison violence and indeed reduce the need for more forceful and potentially injurious physical interventions by prison officers. Because of the professionalism of Irish prison officers, if this law is enacted I believe we will not see any significant change. We will not see prison officers reaching for pepper spray in an immediate response to a circumstance which otherwise they could resolve.

It is important to point out what the Bill does and does not do in relation to incapacitant sprays. It does not authorise unconditional possession or deployment. Rather, it removes what is currently an outright prohibition on prison officers possessing, using or carrying such sprays in the course of their duties. The Bill provides that such sprays will be permitted only in accordance with such further provisions as may be made by me under the prison rules. The use of such sprays will be further underpinned by mandatory policies and operating procedures and by bespoke training for prison officers to ensure that these devices are used appropriately and in line with all applicable health and safety and human rights considerations. The sprays will also be piloted in selected locations before any wider roll-out. Consequently, I cannot accept amendments Nos. 1, 2 or 3.

I thank Senator O'Reilly for her amendment No. 10. It proposes to insert a new section 6 into the Bill providing for a review of operation of the provisions relating to the possession, use and carriage of incapacitant spray. The review would be carried out by the Minister no later than 12 months after commencement and would examine the operation and practice of the provisions enabling prison officers to possess, use and carrying incapacitant spray. The measures to be considered in the review are set out in paragraphs (a) to (f).

I share the objective of keeping legislation under review. However, Senators will be aware, and Senator McDowell and I discussed this recently, that under Dáil Standing Order 204 there must be a post-enactment report in respect of all Acts enacted. I believe there is a similar provision in the Seanad Standing Orders. That report is to be prepared by the Minister responsible for implementation 12 months after enactment and provides a review of the functioning of the Act to date. These reports are laid in the Oireachtas Library. The review the Senator proposes would, in practice, substantially duplicate the post-enactment report process that already applies to this Bill on commencement. Indeed, having this obligation in the Standing Orders rather than scattered across various pieces of legislation ensures consistency in the manner and timing of reviews of new legislation. For those reasons I do not consider a statutory review provision of the kind proposed as necessary. Therefore, I will not be accepting the amendment.

I thank the Minister for his comprehensive contribution. I disagree with some parts in relation to focusing only on an increase in population as a cause for overcrowding. The Minister's Department is going to support policies and changes which he has announced in relation to community sanctions, which acknowledges that prison is overused. In certain years, between 68% to 75% of people in prison are there for minor convictions. In terms of overcrowding, a greater cause for concern than the population rise is the overuse of sentences of less than 12 months. Nobody receives an intervention in less than 12 months in Irish prisons, regardless of how much work is happening in the prison. Addiction waiting lists are extremely long. A person will not see a psychologist within that 12 months. Whatever the Minister's comments on the rise in population being the reason, I cannot allow that alone to stand as the reason. It would be good for the Minister to acknowledge that we can also reduce the prison population through how we actually do justice in relation to those community sanction pieces. That would drastically reduce overcrowding, regardless of whether I agree with more infrastructure. My goal would obviously be a world where we do not need prisons at all. While I am not completely naive, I do not support such numbers of people receiving prison sentences for relatively minor convictions where they will not actually receive any sort of rehabilitative measures within that year. If anything, it grows their criminality because people and young people are exposed to all sorts of people from other communities. People often say when they come out of prison from shorter sentences that their engagement in criminality begins again and that they have made wider connections. It is no use. I would like that point to exist there.

Not to undermine the professionalism of prison officers but I am not sure whether the Minister is aware - he probably is - of the recent report from the Council of Europe's committee for the prevention of torture, which raised serious concerns around the under-development of training of Irish prison officers in relation to physical restraint, that is, without a weapon or incapacitant spray. The committee for the prevention of torture has already stated that our prison officers are not trained properly on the use of force. I am not saying that is the fault of the prison officers, whether it is down to the training or how people are taught, I do not know the answer to that. That fact exists that we are now going to layer on an incapacitant spray without addressing what the Council of Europe's committee stated, which was that there is a serious concern in how Irish prison officers currently use restraint. We would probably be better off investing in how we adequately train prison officers in de-escalation and safer restraint as a first step before we consider incapacitant sprays. At this stage, I am not going to convince the Minister to change or review his opinion on the amendments. However, I would like the Minister to acknowledge that population increase is not the primary or only cause of overcrowding in the Prison Service.

I listened carefully to what Senators O'Reilly and Ruane have said. I share their view that prison should be a punishment of last resort rather than in any circumstance a punishment that is handed down, particularly in the District Court, with a view to seeming to take a severe stance in the hope that the Circuit Court will some time later take a more moderate view of the offence. Quite often in these Houses we hear earnest demands for mandatory prison sentences for assaulting emergency workers, gardaí and so on. At the same time the catastrophic consequences of sending a young person, nearly always a young man, to prison for an assault in those circumstances, is not taken into account by those who demand such measures be brought into law.

The second thing is that we are not dealing here with Tasers being used in prisons. We are just talking about incapacitant sprays. I share the view that we do not want to normalise their use. I remember when I was where the Minister is, being worried by the use of cells for the detention of prisoners who get overly het up. They were put into rubber-lined cells in total darkness as a fairly frequent event in terms of prison discipline, which I considered unacceptable. We dealt with that issue by ending the previous practice and bringing in a far more humane system of isolation cells for people who are a danger to themselves or to others. I am glad that change was made.

Nonetheless, I take the view that we are in a situation where our prison system is in crisis. It is not in the Minister's interest to unduly dwell on this fact but it is in crisis because over-occupancy has risen to very serious proportions.

That is in the context where we had one quarter remission for good behaviour back in the days when I was the Minister for justice. It is now one third remission. It is not as if the system has not attempted to cope with the situation that now exists.

In the context of how we deal with this problem, it is true that it is not solely related to the growth in population, but it is equally naive to believe that social attitudes to the criminal justice system exist in total isolation from the question of sentencing policy. My view is that those who demand severe penalties, even in a context where there is one third rather than one quarter remission, are, in fact, demanding the need for extra prison spaces when those penalties are being imposed.

With an increasing population, particularly where demographic increases are taking place, namely in the age groups where criminality is more located and more likely to occur, from a statistical point of view, the simple fact is that at the very least we need the number of prison spaces that exist at present. In addition, those prison spaces need to be allocated on a humane basis. We are putting two or three people in a cell - two on bunks and one on a rubber mattress on the floor. The Chief Inspector of Prisons has commented on this situation, as has the UN committee. How can anybody think that situation can possibly be reconciled with an overall political mandate to engage in rehabilitation of prisoners? How can somebody who has existed for months or years in such circumstances really be expected to emerge out of prison as an improved citizen determined to spend the rest of his or her life obedient to the law? The reality is that massive overcrowding gives rise to major problems in terms of interpersonal relations between prisoners and between prison officers and prisoners. That carries with it the whole question of keeping prisoners safe, which we, as a society, have an obligation to do.

This brings me to the point that we were about to build Thornton Hall in 2007. The purpose of that campus was not simply to have a super-prison near Dublin. It was to have sufficient space available on a prison campus for different kinds of units, with different regimes in them, with facilities for sport and outdoor activities, and the capacity to have people properly housed in decent circumstances as opposed to overcrowded conditions.

I am strongly of the view that successive governors of Mountjoy Prison, especially since my time as Minister, have made huge efforts to-----

I know we are on Committee Stage, but-----

I am going to finish this point.

It is not quite on the amendment.

I am not trying to delay things. I do, however, want to put something on record. We are not going to deal with the issues that have been raised unless we have decent, civilised circumstances. We are not going to deal with it. The Minister was asked by Senator O’Reilly to talk about Thornton Hall. He did talk about what he has done in two other locations, and that is good news. It concerned what the Minister has done in Castlerea and what he is planning to do in Clover Hill. What is needed now is for the Minister’s colleagues in government to make an absolutely firm commitment to start building the facility at Thornton Hall, including the various units to which I refer, and to make use of the significant investment that has already gone into that place to end overcrowding. That is the point I want to make. It is the only point I want to make.

I do not believe there is anything inherently wrong with using incapacitant sprays in disorderly situations of a certain kind, but they cannot be made routine. I presume that the rules the Minister has in mind for them will have similar requirements as apply to gardaí, who are even required to report on the use of a baton and the like. Senator Ruane said that perhaps the Minister thinks she is being naive in some of the things she said. Many of the points she is making are correct. The answer, though, is not to leave Irish prison officers in a situation where they have to use excessive force, in excess of what would be achieved by an incapacitant spray, to subdue riotous and disorderly behaviour. In the end, this is not merely a threat to the prison officers themselves, but, very frequently, a threat to other prisoners, for whom we all have a collective duty to keep safe.

I agree with Senator Ruane. I accept that the increase in population is not the only reason why there has been an increase in the prison population. However, it is not inconsistent of me to say that prison capacity should have kept in line with the population increase. The Senator is, of course, correct in recognising, as I do, that there are other reasons why our prison population has increased. First, new laws are being created. We are the people who make the new laws. We are the people who say whether or not a prison sentence is necessary. I am pleased to say that one of the new offences I am introducing under this Bill is sex for rent. When we look at this provision, we will notice that there is no possibility of a prison sentence being imposed for that offence. It is solely a fine. We really need to look at ourselves as legislators when it comes to legislation. Do we always need to include a term of imprisonment as a penalty provision? It is hard for us to criticise judges who impose prison sentences when the Oireachtas has said that penalty is available to them.

Senator Ruane also spoke about the training of prison officers. I was given an exhibition by prison officers down in Castlerea as to how they deal with the unusual but dangerous situation that can arise when there is a violent, aggressive prisoner. It is a very harrowing and difficult process to deal with. My view is that I thought, from my experience and knowledge, that the prison officers were very professionally trained and qualified to do so. It is an extremely difficult task. Something like an incapacitant spray could be a more effective way of dealing with that kind of situation, in the unusual circumstances where the need to use it arises.

Thornton Hall was mentioned by Senators O’Reilly and McDowell. They will know that money is allocated in the national development plan, in its latter part, for Thornton Hall. It is part of my plan, and that of the Government, to build a new prison at Thornton Hall. That is the proposal.

We need to recognise that when it comes to the prison population, people are going to prison now who would not have done so 40 years ago. In some respects, that is a good thing. If we look at sexual offences, men got away with violence, rape and sexual assault years ago. There were no consequences. Now, these offences are prosecuted much more vigorously, including for historical offences, and this is going to result in more people being in prison. Indeed, this will mean more elderly people will be in prison. That is also a discussion we need to have at some stage.

We also need to reflect on situations where it is the instinctive response of the Oireachtas to criminalise certain human activities, and then to impose a penal sanction along with it. We need to reflect on this aspect. Maybe we are criminalising too much human behaviour. I will not start naming proposals now, but there are some out there concerning banning certain things. Are these really things that we need to designate breaches of the criminal law, for which, necessarily, there may perhaps be criminal sanction?

Is the amendment being pressed?

I agree with fewer prison sentences for fewer crimes. Yes, I am.

I welcome guests of Senator Joe Conway to the Gallery - Councillor Joe Kelly and his wife Frances, along with Councillor Declan Barry and Sally, as well as Councillor Sandra Conway. They are most welcome to Seanad Éireann. I thank them for being here today.

There was an amendment to the vote as one Senator inadvertently voted the wrong way.

I move amendment No. 2:

In page 9, to delete lines 23 to 27.

I move amendment No. 3:

In page 10, to delete lines 34 to 41, and in page 11, to delete lines 1 to 4.

Amendments Nos. 4 to 9, inclusive, and amendment No. 34 are related and may be discussed together by agreement. Is that agreed? Agreed.

These are essential measures to clarify the authority of the Garda to deploy radio frequency jammers to counter drones, or what are technically referred to as unmanned aircraft systems, where required as part of carrying out its statutory functions under the Policing, Security and Community Safety Act 2024.

I will briefly give Senators the background. Drones have increased significantly in prevalence and capability over the past decade. Improvements in accessibility, affordability and ease of operation have resulted in their widespread use. They also present distinct and evolving security risks. This may include threats to life or property, threats to public safety or State security, criminal activity, intimidation or harassment. The growing risks and awareness of illicit drone activity from a security and defence perspective have also been identified at EU level in an action plan on drone and counter-drone security. I am advised that there is a need for legal amendments to confirm that the Garda has legal powers where necessary and proportionate to deal with dangerous or hostile drone activity through the use of what are called radio frequency jammers. This is particularly the case in the context of our forthcoming Presidency of the Council of the European Union.

I am informed that radio frequency jammers can be used to provide a localised source of radio noise that is intended to disrupt wireless communications to illicit or dangerous drone activity. The relevant equipment can be used to detect the presence of a drone or can interfere with it to such an extent that the jammer sends it back to the pilot or makes it land in a safe drone zone. Depending on the equipment used, the effect of using a jammer could extend in a specific localised area beyond the specific radio frequency channels used by a drone to other frequencies to potentially impact other radio frequency users, such as mobile and radio networks and emergency call systems. For this reason, international communications standards suggest that the use of jamming equipment should generally be prohibited but without prejudice to the general need for an exemption to apply where the intended purpose is for security or defence purposes.

Amendments Nos. 4 and 5 are technical in nature and simply deal with reference to the Wireless Telegraphy Act 1926 and the Policing, Security and Community Safety Act 2024. The 1926 Act is the legislation which sets out the current legal regime relating to wireless telegraphy, a term which includes a radio frequency jammer. The Commission for Communications Regulation, ComReg, is the State's regulator in this space and it operates a licensing regime for the use of wireless telegraphy apparatus. The 2024 Act is the overarching legislation which governs the operation of An Garda Síochána.

With amendment No. 6 I am proposing to amend section 3(6) of the Wireless Telegraphy Act 1926 to ensure that the general prohibition on the possession of wireless telegraphy apparatus without a licence from ComReg does not apply to a radio frequency jammer kept by An Garda Síochána for the purpose of working or using it in accordance with the proposed new section, 12(1B) and 12B(1B) of the 1926 Act. This refers to amendments Nos. 8 and 9. In plain language, it refers to An Garda using a radio frequency jammer to interfere with a drone where it is reasonably believed to be necessary to carry out its function under the 2024 Act. Under the current section 3(6) of the 1926 Act An Garda would require a licence from ComReg for the possession of a radio frequency jammer. My concern with this position is that requiring An Garda to operate under licensing conditions set by another State body for the possession and use of equipment would not be appropriate as An Garda cannot cede its policing and security functions in this area to another State body that does not have such functions.

However, this amendment needs to be read in conjunction with amendment No. 7. That amendment has been drawn up following extensive contact between officials from my Department, An Garda, the Department of Culture, Communications, and Sport and ComReg. This amendment inserts a new section, 3B into the 1926 Act which obliges An Garda and ComReg to agree a memorandum of understanding to support the sharing of information on the use of radio frequency jammers for counter-drone purposes. This would cover sharing of information on issues such as maintenance, frequencies used, standard operating procedures and instances of equipment use. It will ensure that An Garda is in a position to maintain the capability for the use of this equipment and avail of ComReg expertise, while ComReg will be informed of all relevant aspects of the use of this equipment.

Amendments Nos. 8 and 9 are consequential in nature. At present, section 12 and section 12B of the 1926 Act provide for offences and monetary penalties for the use of wireless telegraphy apparatus to interfere with other such apparatus, which will at present apply to An Garda if it used this equipment. This is one example of where the law in this area is not entirely consistent. Under a separate statutory instrument made in 2011 under the Wireless Telegraphy Act 1972, there is a general prohibition on the sale, hire, manufacture or importation of wireless telegraphy interference apparatus, which would include a radio frequency jammer. There is also a clear exemption in the order, which confirms that it does not apply to the importation or manufacture of such equipment by An Garda, the Defence Forces or the Prison Service. Therefore, at present, it is lawful for An Garda to manufacture or import a radio frequency jammer but the law contains inconsistency thereafter with regard to its use. Amendments Nos. 8 and 9 amend sections 12 and 12B of the 1926 Act to provide that the offences on the use of wireless telegraphy apparatus to interfere with such other apparatus do not apply to the use of radio frequency jammers by An Garda, for counter-drone activity. This is modelled on previous such amendments introduced to these sections in 2023 in respect of the Dublin Airport Authority.

Amendment No. 34 is technical in nature and simply amends the Long Title of the Bill to reference the amendments to the Wireless Telegraphy Act 1926, as proposed in amendments Nos. 4 to 9, inclusive.

I am satisfied that these amendments are necessary to ensure An Garda is in a position to carry out its policing and security functions and deal with the threats posed to our security by illicit and unlawful drone activity. I should add that my officials are continuing to engage with the Attorney General's Office to ensure consistency of the proposals with EU communications legislation and I will advise Senators on Report Stage should any issues arise.

To clarify, amendments Nos. 4 to 9, inclusive, are grouped.

Amendments Nos. 11 to 13, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 11:

In page 15, to delete lines 1 to 8.

These amendments relate to the civil power. What is important here is that in April 2026 the Minister said that the Defence Forces should be deployed to assist An Garda Síochána removing the fuel protest blockades. There was uproar in the country about this. This was a serious escalation at a time when the Government should have been focused on de-escalation. This is where there are serious concerns in the community. A few weeks later, out of the blue, we get these amendments to expand the deployment of the Defence Forces in aid to civil power being brought forward by the Minister. I want to get an explanation around this so that we have clear understanding. I was on the picket line at these protests. These were peaceful protests. People have the right to protest, but to send in the Army at that time was not appropriate. I hope that the reason behind bringing in these powers is not to do with that. Sinn Féin has been clear that any expansion of Defence Forces powers must be grounded in transparency, democratic oversight and absolute respect for civil liberties. The provisions on aid to civil power raise concerns regarding the normalising of military involvement in policing, which should remain exceptional and limited. I will be interested to hear what the Minister has to say on that.

Amendment No. 11 proposes to delete the provision regarding aid to civil power from this Bill. If they are needed, let the Minister come back with a stand-alone Bill to the House when the Government is in a position to explain what is behind these proposals. I want to get my head around this.

Amendment No. 13 requires an annual report - that is all - to review these sanctions in the event that amendment No. 11 is not accepted. However, I am hopeful that the Minister will accept both of these amendments.

We are proposing amendment No. 12 in relation to this but I also want to indicate that amendments Nos. 11 and 13 have merit also.

This is particularly the case as they would be added as a very serious component of the legislation before us, which was not subject to pre-legislative scrutiny and did not have the same examination. It is a very significant proposal that would allow for the armed forces - not just the armed force because, when you look to the Bill, it is clear that it refers to the armed forces with everything that brings - to be applied in civil situations. In situations where you have issues within civil society and the civil space, we will now be looking to the addition of the armed forces. When we talk about deployment of members of the armed forces, subsection (3) of the new section the Minister is going to introduce proposes that the members of the Defence Forces who are "deployed in aid of the civil power may use such force as is reasonable, proportionate and necessary". The force available to a member of the armed forces is considerably different. Even with the necessity and proportionality attachment, you are still talking about a level of potential force applied within situations that is far different from the level of potential force that is going to be applied within civil policing. You are talking about a significant change in circumstances when you have an issue of civil unrest and you are bringing in military-style responses with the military checks and balances rather than the civil checks and balances.

That is a really serious thing to do. At a minimum, that is why I would support amendment No. 11 from the Sinn Féin Senators. If the Minister is bringing this proposal forward, it is one that merits scrutiny not just by the justice committee but also by the defence committee. It should have the opportunity for pre-legislative scrutiny on the proposal for a very different kind of use of our armed forces, including the implications for the armed forces and their relationships with society as well. I would also support the idea that in each instance where this is deployed, we should be having a review and reporting in relation to it. Again, I hope it would be rare, but wherever it is occurring, it should be studied as part of very significant scrutiny.

I say this in the context of looking internationally. We all know this. Anybody who has served with the Organization for Security and Co-operation in Europe, OSCE, or worked on any of the other pieces sees that there is always a delicate balance internationally between armed forces and the civilian power. When you blur that line, you are creating a vulnerability in regard to the sense of democratic accountability within the state. We have seen in Korea a huge reaction against something that was obviously far more, but it was an attempt to bring martial power to bear. There was an extremely strong reaction from the public in Korea to those attempts by the political or civil powers to bring martial law to bear.

This is obviously not declaring martial law; it is simply deploying the armed forces for particular instances but there are serious concerns attached that have not been properly scrutinised and that should be examined. Our amendment is actually very minimal compared to amendments Nos. 11 and 13, which I would also support. We simply say that as a basic bar, when this is happening the seriousness of it should be recognised by a requirement for a resolution passed by both Houses of the Oireachtas. Our amendment is perhaps too mild in this regard and in this context, given the potential seriousness of what happens when you place armed members of the Defence Forces on public streets in situations of civil unrest. Let us think about how that looks and feels. I think that as a minimum, there should at least be an opportunity for both Houses of the Oireachtas to have an input into that decision. That would be appropriate to the seriousness of such a decision.

Before I call on the next speaker, I welcome the group from Our Lady's Island-Tacumshane Senior Citizens from Wexford. They are guests of the Ceann Comhairle, Deputy Verona Murphy. They are very welcome here today and I hope they enjoy their visit. I call Senator Black.

Amendment No. 12 is about democratic accountability. What we are asking for is fairly straightforward. We are proposing that any order made under section 9, which relates to calling out the Defence Forces in aid of the civil power, should require a resolution passed by both Houses of the Oireachtas. I do not think the Minister should be able to take a decision of that weight alone. Section 9 deals with the deployment of the Defence Forces domestically, which is not a minor or routine matter. It is an exceptional measure. Exceptional measures require exceptional oversight. I do not believe the decision to deploy military personnel in support of civil authorities should rest with the Minister alone.

We in the Seanad have a role to play in scrutinising and checking executive power. This amendment does not prevent the Minister from acting. It simply requires that both Houses of the Oireachtas are brought into the decision. That is not an obstacle to good governance; it is actually good governance.

I want to be clear about what this amendment is not. It is not an attempt to obstruct legitimate security operations. In urgent circumstances, the Minister retains the power to act and this amendment ensures that such actions are subsequently accountable to this Parliament and the Oireachtas. That balance between executive flexibility and democratic oversight is exactly what the Oireachtas should be insisting on. It is a measured, proportionate amendment and it asks only that decisions of real constitutional weight are subject to parliamentary approval.

A number of things occur to me in this context. The first is that we should not suffer from collective amnesia. It is a long time ago, but not that long ago, that Don Tidey, a supermarket executive, was the subject of a kidnapping. The Provisional IRA, at that stage, looked for £5 million ransom for his return. He was hidden in a number of places but eventually in County Leitrim, in the custody of the Provisional IRA. Extensive searches were authorised by the Government at the time to find and release him and return him to his family.

Let us be clear about one thing. In those circumstances, we cannot have meetings of the Dáil and Seanad to work out whether the Army, which was in the end deployed extensively to find and rescue Don Tidey, should or should not be deployed. You cannot do that in an orderly fashion. You could not say that when Tiede Herrema was the subject of a kidnapping in County Laois, you would want to have a meeting of the Dáil and Seanad to decide whether members of An Garda Síochána should be assisted by members of the Army in confronting that situation. It is worthwhile reminding ourselves that Galen Weston, another executive, was the subject of an elaborate attempt to kidnap him, and the late Ben Dunne was the object of similar activity.

What happened in the case of Don Tidey was shocking. A member of the Defence Forces, Private Patrick Kelly, was murdered. Recruit Garda Gary Sheehan, for whom there is a medal every year now in Templemore, was murdered.

Let us remember that there are occasions when the Defence Forces must be deployed in order to vindicate the rights of citizens. Those events are by no means unique. Those of us who have been around slightly longer than others will remember with crystal clarity when the movement of cash in this State had to be done in the presence of trucks full of soldiers. We saw what happened when that did not happen in Adare, County Limerick. Members of An Garda Síochána were machine-gunned by people intent on stealing money for the Provisional IRA.

We cannot have a situation where Dáil Éireann and Seanad Éireann have to approve resolutions in all circumstances where events such as those arise. Was it wrong to deploy armed members of the Defences Forces and gardaí in the searches across the country to rescue Don Tidey? If someone is of the view that it was wrong for the Defence Forces to assist An Garda Síochána in that regard, that is fine. However, would anyone who does not share that view seriously suggest that if the Government deployed the Defence Forces in such circumstances, it would not be open to any Member of the Oireachtas who thought there was something wrong with what had happened to seek an early meeting of the Houses to determine whether such powers were properly deployed? In the real world, powers of this kind cannot be contingent on debates in Dáil Éireann.

In the past, the Defence Forces have acted in aid of the civil power. I did it myself on one occasion. On a number of occasions, I ended up in a ditch on the Concession Road outside Castleblayney with my worthy Gustav submachine gun. I was there to protect gardaí from being murdered by people, whether loyalists or our own republican paramilitaries, who were trying to challenge the authority of the Irish State. This has happened before. The real question is what is the appropriate mechanism. Is there a statutory basis for it? I cannot remember - and I do not remember sitting in that ditch either - whether there was, in fact, a statutory basis for what was done previously. I do not remember whether anybody at the time of the Tidey kidnapping and the murders of Patrick Kelly and Gary Sheehan queried whether it was appropriate for the Army to be involved. I doubt that they did because, at the time, it was generally assumed that the Government of the day could call on An Garda Síochána and the Army to act jointly to confront serious situations where necessary. If the current Attorney General and Minister for justice believe that a statutory basis is needed for this, it is our duty to assist them in that regard rather than telling them that we must make provision in law that, before anything is done, both Houses of the Oireachtas must be convened and their authority sought to conduct a search for Don Tidey or that Private Patrick Kelly should not be allowed help An Garda Síochána, laying down his life, without a resolution of both Houses of the Oireachtas.

The recent fuel protests probably gave rise to further consideration of these matters. It is not coincidence that this section is being put in place. It is proposed that the Minister for Defence should, following a request from the Minister for justice, have the right to direct the deployment of member of the Defence Forces in aid of the civil power to do what they have unfortunately done very regularly in the past. It is proposed that deployment would be conditional on a request from one Minister to the other that the Army should be so deployed. This puts what happened in the past on a lawful basis.

The reference to the Minister is a reference to the Minister for Defence. We now have two Ministers for finance and two Ministers for education. We have a Minister for children and Ministers for a whole load of other things. There was a time when most schoolchildren could tell you the names of the Ministers running different Departments but now you would need to have an expert memory to work out the exact jurisdiction of the various Ministers of the Cabinet. I am not going to speak on something irrelevant but I will strongly make the point that we need a full-time Minister for Defence because what has happened to the Defence Forces over the last 20 years has been nothing short of scandalous. They have been run down to a very low state. We can deal with that later.

Let us be clear. Nobody in this community has the right to blockade fuel depots with a view to bringing the country to its knees. It in unlawful and criminal. It is a criminal conspiracy. I will repeat what I have said before in this House; you may not do that. It is not legitimate to do that. It is wrong to do it. It is a breach of the criminal law to do it. There is no right to organise a blockade of fuel depots with a view to bringing the Government to its knees. Nobody has the right to do that, no matter how strongly they feel about taxes on petrol or diesel or whatever. I share many of their views about some of our fossil fuel taxation policies but nobody has the right to bring society to its knees. In those circumstances, if it were necessary to shift trucks and obstacles and it the only group with the equipment to do so was the Army, it would be absurd for those resources not to be available in some shape or form to ensure the lifeblood of the country continued to flow.

I reject the idea that anybody has ever suggested that the Army get involved in batoning civilians on protest lines or anything of that kind. I know full well that what is in mind is tow trucks to open up access to vital fuel arteries to keep this country going. If a group of citizens thinks they have the right to say to Government and the community at large that they will bring Government to its knees unlawfully and in breach of the criminal law, that nobody will stop them and that, if gardaí and squad cars cannot stop them, that will be the end of the matter and the Government will surrender, it does not matter how many people support them, that is a huge mistake.

At the time, I did not want to add fuel to the flames, if I may use that analogy.

It was perfectly proper for the Minister who is with us today to seek the assistance of the Army in deploying trucks to remove other trucks, the purpose of which was to choke off the economic life of the country and bring the economy to its knees. If we do not understand that, we have a really big problem. The idea that both Houses of the Oireachtas would have had to be convened before the Army was sent to rescue Don Tidey is ridiculous. The executive power of the State is lodged in the Government; it is not lodged in these Houses. There are occasions when the executive power of the State requires instant and effective action. These Houses can convene thereafter and say that something was excessive or that something else should not have happened, but the notion that they should be consulted in advance before any of those kind of situations come into play is, frankly, ridiculous.

We have to stand by the rule of law. There are occasions when challenges to the rule of law, as we saw recently, can become so severe that the economic and social damage to the State and its international reputation would be colossal if the Government cannot act effectively. There is ample precedent over the 100 years or so since the foundation of the State for the deployment of the Army and the Defence Forces in aid of the civil power. If the Attorney General is advising the Government that there ought to be or that it is preferable that there should be a statutory basis for this, I am in favour of that. I say most emphatically that, subject to my remark to the effect that we need a full-time rather than a part-time Minister for Defence, what is proposed is not merely sensible but also necessary in support of democracy.

Before I call Senator Higgins, I welcome Brian Sheehan, Kieran Rose and Karl Hayden, who are here as guests of Senator Harmon, to the Gallery.

I will be brief. In the examples the former Minister described, the Army was deployed. This Bill did not exist, and the Army was deployed. We have had discussions about missing persons and other incidents. Let us have legislation on a statutory basis to address such incidents, including kidnapping and so forth. However, the Bill a very wide rather than a nuanced instrument in the context of such incidents. All of the examples mentioned were instances where the Army had already been deployed. There are circumstances where other mechanisms have been found to ensure the Army's deployment. There are many circumstances where that happens.

What we are being asked to agree with here is a very wide categorisation of aid to the civil power that does not refer to extreme circumstances, provide caveats in service of democracy or state that we know only trucks will be sent. The Bill does not state any of those things. It simply states that the Minister for Defence, when asked to do so by the Minister for justice, can allow the deployment of the Defence Forces.

In democracies internationally, there are always very careful safeguards in place between civilian authority and the use of military power. That is because, for many centuries, military power was predominant. There is a reason why, normally, there are extra safeguards. The Minister may not like the safeguard we have suggested in respect of a very simple matter. If he wanted to introduce a time limit, he could do so. The idea of saying that it is preposterous that the Dáil or Seanad would be involved is not true. In a time-bound situation, we can look to the kind of measures used in certain European legislation. It could be the case that in order for an exercise to continue beyond 48 hours or for there to be a time-limited action, that would be subject to review and approval for continuation by the Oireachtas. Many nuances can be put on that. The amendment is an attempt to have a structure of accountability regarding what is not currently even the subject of a discussion at Cabinet; it is the subject of a discussion between the Ministers for justice and Defence.

The Bill does not categorise circumstances where this would be the only approach or where other measures might be looked. It simply refers to "such class or classes of assistance as may be agreed". There are two Ministers who can say that the Army can be used for whatever classes of assistance they decide they want to use it for and that this will be subject to "such conditions as he or she may specify". The Minister for Defence may set out some conditions, but we will not know what they are. We will not even know what kind of conditions they are.

I am sure we can come up with historical and projected future examples where there may be circumstances where the Army may be needed to support the civil power. Sinn Féin, which opposes the Bill completely, is not against that idea but would like it to teased out properly by the defence and justice committees. We should be wary of a kind of blank-cheque measure which simply states that two Ministers can decide when to use the Army to provide whatever kind of assistance they believe they want.

There may be conditions that the Minister may specify. Will these be made public? Members of the public know their rights when gardaí engage with them. Will they know their rights in regard to engagement with the armed forces? Will that be a clearly known fact? If a person is approached by a member of the Defence Forces, will they know their rights and responsibilities and will the know how to respond? Where is the transparency around the conditions and circumstances? That is important in light of the effect on public confidence and democracy when the Army is on the streets.

I am not saying that there no circumstances in which the Army should be on the streets, but we should be clear about the circumstances and conditions and when and how that would be done properly. There is nothing to stop the Minister coming back on Report Stage with a commitment to produce and publish regulations in respect of the use of the Army in support of the civil power. There could be public regulations we could all read. We could know that in any given circumstance where there is organised crime or where it is believed that there is a level of violence and risk involved, certain urgent action can be taken. We need things that are clear which we can all look at and know why something is happening, rather than somebody on the street seeing the Army being brought in and knowing that the Minister for justice asked the Minister for Defence to send it in without knowing what that means.

Again, there is nothing to prevent transparency. The Minister might clarify if he intends to publish conditions or to seek that the Minister for Defence do so. There is no provision in the legislation around regulations on the use of the Army. The Minister could think about producing a schedule - this could be added to - in respect of what classes of assistance the Army might be used for.

Will there be safeguards whereby the Army only gets brought in when it has been shown that civil power alone is not enough? For example, was civil power not enough in relation to the arrests of individuals in certain circumstances? Was civil power not enough in relation to perhaps the seizure or impoundment of vehicles, if that is the issue that is being talked about? Were those powers deployed? Why are we moving to the Army without having exhausted the civil powers? It is not a matter of simply saying here is a bigger hammer that I would like to use. It is a matter of whether the tools at hand within our civil authorities have been used and whether the use of this new tool has been justified at this new time. All people are looking for is transparency and clarity. If the Government does not like the time delay, I believe that our Legislature makes capable and good decisions quickly in emergencies and let us see what the other safeguards are.

However, right now, it is a conversation between two Ministers. It has a huge issue of opacity, and it will damage the confidence in both civil authorities and our armed forces unless it is clarified and confidence can be restored.

I thank the Senators for putting forward the amendments and all Senators for their contributions. Just so everyone is aware, we are discussing proposed amendments to section 9 of the Bill and that is the section that seeks to put in a new provision into the Defence Act 1954 to ensure that there is an updated statutory mechanism in respect of members of the Defence Forces being deployed in aid of the civil power.

At the outset, it is important to be aware of, note and record that, at present, there is ongoing assistance provided by the Defence Forces to An Garda Síochána and that is something that has happened consistently over the past 40 or 50 years.

Senator McDowell referred to the kidnapping of Don Tidey and, of course, the campaign of violence waged by the Provisional IRA on this island for a period of 25 or 30 years, which tragically resulted in the murder of Private Patrick Kelly, a member of Óglaigh na hÉireann, by the Provisional IRA. It is also important to point out that even back in the 1970s and 1980s, the Army provided assistance to An Garda Síochána and there was a mechanism by which that was done and I will refer to that presently. It continued during the times when we had serious organised crime. The Garda frequently requested the assistance of the Army and Defence Forces for the purpose of accompanying and guarding large transits of cash during the course of bank deliveries.

Fortunately, that type of criminal activity has now ceased. After many years, the Provisional IRA realised the futility of its campaign and organised criminals as well now recognise that trying to rob large amounts of cash is fruitless, particularly since that does not happen with the same frequency now.

Nonetheless, it is still the case that An Garda Síochána requests the assistance of the Defence Forces in aid of the civil power on a regular basis and that assistance is granted. An Garda Síochána issues what is referred to as a C70 document. It is a form that a chief superintendent or someone higher will issue to the Defence Forces in a region for the purpose of getting its assistance. It may arise in circumstances where there is concern about an explosive device. Great expertise exists within the Defence Forces in respect of explosive devices and ensuring that they are made safe. An Garda Síochána frequently requests that.

It also happened last year in respect of the death of the unfortunate Mike Gaine. As the Cathaoirleach will know, Mike Gaine was a farmer in south Kerry. There was an investigation on his land to look for his remains. An Garda Síochána requested the assistance of the Army for the purpose of that search and it was granted. That is an example of a perfectly legitimate and understandable request from An Garda Síochána to the Defence Forces under the C70 system.

In fact, there were 144 requests from An Garda Síochána by way of C70s to the Defence Forces last year, so this is something that continues on a frequent basis. It does not result in armed officers of the Defence Forces being seen on the street, but it is something that is necessary and appropriate. As I announced earlier this year, An Garda Síochána requested the Defence Forces to come in to provide assistance to remove large trucks. This is the type of request that is standard and acceptable. I agree with Senator McDowell that it is not something that requires a vote in both Houses of the Oireachtas before that can be granted.

It is, however, probably worth setting out the current legislative framework relating to the aid of the civil power. There are relevant provisions relating to aid of civil power currently set within the Defence Act 1954, in regulations made under the Defence Act 1954 and in various other enactments. Section 90 of the 1954 Act provides for the calling out in certain circumstances of reservists in aid of the civil power. In addition, other enactments provide for the manner in which members of the Defence Forces provide assistance to the Garda and other State bodies in relation to specific matters. There are also regulations made under the Defence Act 1954 in relation to the provision of aid to the civil power. The regulations in question are entitled Defence Forces Regulation CS1 (Employment of Troops in Aid of the Civil Power 1967).

It should also be noted that there is case law to support the current provisions relating to aid of the civil power. It is acknowledged that the regulations that have been in existence for almost 60 years are in need of modernisation, and the provisions relating to the use of force that are currently set out in the regulations are more appropriately situated within the relevant primary legislation that is the Defence Act 1954.

It should also be pointed that the approval of the Government to draft an amendment to the Defence Acts was obtained on 9 March 2026, way before the protests that occurred. It was suggested by Senator McCormack that this amendment was introduced out of the blue after the protests. That is not correct. The approval of the Governments was obtained on 9 March 2026, and the relevant draft head was published on the website of the Department of Defence in March 2026.

In summary, the new section 40B does not provide for a substantive change to the current legislative framework under which members of the Defence Forces may be deployed in aid of the civil power. However, it is necessary as it ensures that provision is appropriately set out within the Defence Acts for this important role of the Defence Forces and, accordingly, I do not propose to accept amendment No. 11.

That brings me to amendment No. 12, which relates to the provisions in Part 4 of the Bill concerning, again, the long-standing role of the Defence Forces in aid of civil power. This amendment would appear to require that any deployment of members of the Defence Forces in aid of the civil power would require a resolution to be passed by both Houses of the Oireachtas. Can we just pause and think about that in the context of the assistance that was provided by the Defence Forces to An Garda Síochána in the search for the remains of Mike Gaine? Is it seriously suggested that when the gardaí down in south Kerry decided that they needed assistance to look for the unfortunate man's mortal remains that they would have had to hold on until they got a resolution signed by both Houses of the Oireachtas, which would have taken a week or so? Also, what expertise does this House have when it comes to assisting or directing An Garda Síochána as to what assistance it needs for the purpose of carrying out their functions? Similarly, if there was an explosive device found somewhere down the country and An Garda Síochána needed to call in the explosives section of the Defence Forces in order to defuse it, are we seriously suggesting that there has to be a motion brought before both Houses of the Oireachtas requiring that a resolution be passed to permit it? That provision would be impractical and excessive in view of the nature and volume of the deployments.

As I said to the Senator, there were 144 requests last year. Most of them did not give rise to any issues of concern and none of them really resulted in very visible presence of the Defence Forces on our streets, as was mooted by some Senators.

Statistical information in relation to the deployment of members of the Defence Forces in aid of the civil power is provided on an annual basis in the annual report of the Department of Defence and the Defence Forces. The report is laid before this House - the Seanad - as well as the Dáil. It clearly sets out the wide range of operations that take place in aid of the civil power. It should also be noted that the requirement for the deployment of the Defence Forces in aid of the civil power often rises at short notice. Therefore, it would not be feasible to provide that a resolution of both Houses would be required before deployment. For those reasons, I cannot accept amendment No. 12.

Amendment No. 13 provides for reporting requirements for the operation of the new Part 3A of the Defence Act 1954. As I have already noted, statistical information in relation to the deployment of members of the Defence Forces in aid of civil power is already provided on an annual basis in the annual report of the Department of Defence and the Defence Forces, which is laid before this House. As such, I do not consider that the amendment proposed by Senators is required. In addition, the reporting requirements set out in the amendment also relate to operational matters relating to the Defence Forces, and it would not be appropriate on security grounds to report on such matters. Accordingly, I cannot accept the amendment on those grounds.

I accept that the Minister is making the case, and he makes it strongly in terms of the resolution in relation to all of the instances. The problem is that all of the instances are all bundled in together. We have heard the examples that the Minister has given us and the examples that Senator McDowell has given us. The point is that within the scope of what is in front of us as legislation, there is no differentiation or clarity regarding those instances that we have talked about, which have happened and occurred in other countries and relate to armed forces in the context of protest, in the context of the street and perhaps in the context of the protection of private assets and a lot of other circumstances. The Minister has mentioned that this is already happening. We have to look to what is actually being added by bringing this in. What we can see is that it is very widely framed.

I accept that the Minister has made the case that in many of the small instances that occur it may not be necessary or appropriate to have a resolution, but I had asked what was meant by "such class or classes of assistance as may be agreed". Can we look to the categorisation? Can we look to some form of public transparency or regulation as to the "class or classes of assistance"? The Minister seems to believe it will involve defusing bombs or looking for missing persons, etc. Let us have a number of those circumstances set out. This is done in the defence sector in general, in terms of why the armed forces might be deployed by the Minister for Defence usually. There are sets of circumstances that are listed. If the Minister does not want to have the safeguard of a resolution, and since we have not had the advantage of pre-legislative scrutiny that would have allowed the teasing out of these issues properly, can he give clarity on whether he intends to bring any kind of light or clear regulation, or any accountability, in terms of the question of which class and classes of assistance this may be used for? The examples that have been given are all very worthy, but right now that is not a closed set. We do not know. It is wide open, and, with respect, the Minister may not be the Minister for justice in the future. There may be other Ministers for justice. We have seen that where there are powers of this kind, we need transparency and clarity around how they may be used. We need only look to the United States, where there have been very worrying uses of powers in relation to civilian protest very recently. In that context, I am asking whether, similar to the conditions that the Minister for Defence specifies around the use of the Defence Forces, there will be some transparency on the "class or classes of assistance as may be agreed". This could be done on an instance-by-instance basis or, ideally, by regulation that is publicly available. What are the alternative mechanisms?

I will be brief because I am conscious that there are other amendments. It is instructive to note that there is a report laid before this House every year which sets out detail about that. No one ever talks about it or raises it. The information is provided there. As the information was provided in the past, it will continue to be provided in the future. There must be recognition that the amendments that have been set down would be grossly inappropriate, considering the nature of the requests that are going in from the Garda to the Defence Forces. There should be a close working relationship between both when it comes to areas of expertise or functionality that the other cannot perform, and when assistance is required.

I am interested and pleased in a way that the Minister has been able to inform the House that this did not arise from the petrol strike. That is encouraging. It is very interesting that this was being considered beforehand, in any event. I believe, and I know this from such connections as I have with the Defence Forces, that they are very conscious of operating within the rule of law. The Defence Forces legal service is an elaborate organisation, which takes its national and international obligations very seriously. I have no doubt that the Defence Forces view it as important that what they do in the public sphere, particularly in aid of the civil power, has a basis in law.

We are very naive if we think that post the 1998 agreement there will never be an emergency in this State again. We just have to look at what could happen in Northern Ireland and in various other scenarios to understand that the unexpected cannot be predicted.

I will go back to a point that I want to emphasise. The Constitution says that "The Government shall meet and act as a collective authority, and shall be collectively responsible for [all] the Departments of State" under its remit. The notion that the Minister for justice and the Minister for Defence can, effectively, mount a coup on the phone is simply fanciful. They would not last a minute if they did that without the consent of the rest of the Government for what they were doing.

We have to remember that there is a legislative power, an executive power and a judicial power. I am sometimes very critical of lawyers in particular - I put the Judiciary collectively into this basket - and legislators who somehow deny that the executive power of the State is of equal importance with the other two. The executive power of the State is dealt with in the Constitution on an equal basis. A lot of people want to claw back from the Government any discretion, and want to try to make it subject to, first, statute, and, second, judicial supervision with a view to effectively saying that the executive power of the State is a residual power which is unimportant. When push comes to shove and in an emergency, the Government, the Defence Forces and An Garda Síochána must be available to uphold the civil authority of the Government. There are things that An Garda Síochána can do and there are things it sometimes may not be able to do, whether it is a search for the body of Michael Gaine, confronting the Don Tidey kidnapping or confronting other threats which existed.

It was not just a matter of Concession Road outside Castleblayney. I can tell the House that every single reservoir in the Dublin region was under military guard. Sewage treatment plants were under guard. Electricity substations and generating stations were under military guard, along with the airport and places like that in the 1970s. The Government at the time did not have to come into this House and seek authority in advance for doing what is necessary to uphold public safety. Anybody who thinks that it is in any way remotely correct that the two Houses of the Oireachtas should authorise in advance every single deployment of the Defence Forces in aid of the civil power is, in my view, mistaken.

The Minister for Defence operates through the Department of Defence, the military commands, and through the Defence Forces regulations in a highly regulated way. This section proposes that the Minister has a duty as a member of the Government to assist the Government in the maintenance of the security of the State and to maintain the authority of the Government collectively. Anybody who thinks that they can usurp the right of the Government to protect us collectively is deeply mistaken.

Going back to what happened after this head was approved by the Government – and I am glad to hear it was after it – and the arrogance of people who think they can go on radio and television and say they will bring the Government to its knees, no, people sitting in the cabs of lorries have no right to bring the Government to its knees. They have no right to wander around the country trying to assert that they themselves are somehow the equivalent of government with no mandate of any kind whatsoever. I will not go further but a lot of them were given plenty of platforms to articulate the view that they had a mandate to bring the Government to its knees. How mistaken, how anti-democratic, how anti-republican and how contrary to the rule of law all that was needs to be thought about repeatedly.

Before we put the next question, I welcome guests of Deputy Pat the Cope Gallagher from Ballybofey and Stranorlar. You are most welcome to Seanad Éireann.

I move amendment No. 12:

In page 15, line 2, after “subsection (2)” to insert “and a resolution passed by both Houses of the Oireachtas”.

I move amendment No. 13:

In page 15, between lines 33 and 34, to insert the following:

“Review and annual reporting on operation of Part IIIA

40D. (1) The Minister shall, in respect of each calendar year, carry out a review of the operation of this Part.

(2) A review under subsection (1) shall include an assessment of the exercise of powers under sections 40A, 40B and 40C, including the frequency and circumstances of their use.

(3) The Minister shall, as soon as practicable after the completion of a review under subsection (1), prepare and publish a report containing anonymised data relating to—

(a) the number of occasions on which powers under sections 40A, 40B and 40C were exercised,

(b) the general nature of the operations or deployments concerned,

(c) the use of force in the exercise of those powers, and

(d) any other information the Minister considers appropriate for ensuring transparency in the operation of this Part.

(4) The Minister shall cause a copy of a report under this section to be laid before each House of the Oireachtas as soon as practicable after its

publication.”.”.

I move amendment No. 14:

In page 16, to delete lines 23 to 26.

Amendment No. 14 asks us to delete specific lines from section 12 which deal with bail, and we are concerned that these provisions expand the grounds on which bail can be refused. We do not believe that expansion is justified or that it has received the scrutiny it deserves. We all know bail is not a reward, it is an entitlement rooted in the presumption of innocence. When we expand the grounds on which it can be refused, we are in effect detaining people who have not been convicted of any offence. That is a serious step and it requires serious justification.

I wish to flag something about how this Bill has been developed. As it has passed through the Oireachtas, new provisions have been added on bail, extradition and other areas, often without the scrutiny those provisions deserve. The Minister himself has acknowledged that he has used this Bill as a vehicle for measures which did not go through pre-legislative scrutiny. We should be cautious about what we are passing today. We ask that these lines be deleted, not because we are against protecting the public, but because the expansion of bail refusal grounds has to be evidence-based, clearly justified and properly scrutinised. We do not believe that standard has been met for these specific provisions. The right to liberty pending trial is absolutely fundamental and we should not be chipping away at it through miscellaneous provisions Bills.

I thank Senator Black for moving this amendment and for her contribution. It is the case that a miscellaneous provisions Bill is a very useful legal instrument for the purpose of trying to make varying changes to different laws, and you can get it done on a pretty fast and expedited basis. I do not make any apology for the fact that that is what I am seeking to do. I have had very significant engagement with the Houses of the Oireachtas in respect to this legislation, in particular with the Seanad. I believe that the Bill, quite correctly, has been subject to the scrutiny it deserves, as is the case with all legislation.

Amendment No. 14 from Senator Black is an amendment proposed to section 12, which proposes an amendment to section 27 of the Extradition Act of 1965. Senator Black's amendment proposes to delete section 12(d) of the Bill. Paragraph (d) substitutes section 27(7) of the 1965 Act to provide that if, within 28 days of a person's provisional arrest, no ministerial certificate is produced confirming that an extradition request has been made, the person shall be released from custody or from the terms of his or her bail. The existing provision in the legislation provides for a remand period of 18 days. The effect of Senator Black's amendment would be simply to leave the 18 days in place. I want to change it to 28 days for the following reason, and I think it is a considered and balanced change. The proposal arises from advice my Department received from the Chief State Solicitor's Office that if the Bill's other amendments to the Extradition Act are to operate as intended, the current 18-day maximum remand period should be increased to 28 days. Doing so will ensure that where a person has been remanded on foot of a provisional arrest without warrant, there is sufficient time for the formalisation and processing of extradition requests from Switzerland and Liechtenstein, but also from other countries, such as the United States, which can be very difficult to finalise within the 18-day period for procedural reasons beyond the control of the Chief State Solicitor’s Office and, indeed, the central authority in my Department.

It should be noted that the European Convention on Extradition refers to 18 days after provisional arrest as a minimum remand period. I am unsure as to why the Legislature chose this as the maximum period under the 1965 Act, but I am satisfied it is no longer fit for purpose. The convention allows for a remand period of up to 40 days, and in this context, the increase to 28 days I am proposing is reasonable and proportionate in the interests of a well-functioning extradition system. I note also that there is no legal bar to the making of a bail application by a person who has been provisionally arrested, either at their first court appearance or thereafter. For those reasons I cannot accept the amendment put forward by Senator Black.

I move amendment No. 15:

In page 18, between lines 16 and 17, to insert the following:

“(ab) Before imposing a sentence of imprisonment of 24 months or less, the court shall expressly consider the suitability of a community service order and shall record its reasons where it determines that such an order is not appropriate in the circumstances of the case.

(ac) In considering whether a community service order is appropriate, the court shall have regard to the rehabilitation of the offender, the interests of victims, the protection of the public and the reduction of reoffending.”.

I am moving this amendment because there is a tendency in discussions on criminal justice to assume that if we simply move more people away from custodial sentences, the problem somehow solves itself. I agree with comments from Senator McDowell on the idea of prison being a last resort, but there also has to be an emphasis placed on justice and fairness, especially for victims. Community service has a role to play. There are certainly cases where it is a more appropriate response than a short prison sentence and where people would benefit more from structured community services than from spending a few months in prison, but the circumstances of the offence matter and the impact on victims also matters.

There is a growing lack of confidence in the criminal justice system. I know of a number of cases which have been raised with me where individuals were found guilty of domestic violence, child abuse or having child sexual abuse material and were given suspended sentences or community service. I do not share the Minister's experience working in the legal system, so perhaps he can shine a light on why, in cases which by all accounts are incredibly violent or abusive, the individual receives a suspended sentence or community service. That is why I am asking that judges expressly consider not only rehabilitation but also the interests of victims, the protection of the public and the reduction of reoffending. I am aware that judges consider this when sentencing, but it is important with the proposed change to the legislation that, if a judge is mandated to consider community service, he would also expect that the reasons for or against this sentence be recorded.

How does the Minister reconcile the increase in emphasis on alternatives to custody with the reality of our rehabilitation system? We talk a lot about rehabilitation but the outcomes are not particularly encouraging. CSO figures show that almost one in four offenders on probation reoffend within a year and almost half reoffend within three years. When somebody leaves prison, where are they leaving to? In many cases, they are entering accommodation that is wholly unsuitable. They may find themselves in a halfway house or temporary accommodation alongside others with addiction issues and criminal histories. We should not be surprised when people end up back before the courts if the environment they are returning to is one that almost encourages reoffending.

I have concerns that this provision is arriving, as the Minister has said on previous amendments, in the context of severe prison overcrowding. There is a legitimate debate to be had about whether the push towards non-custodial sentencing is being driven by what is best for rehabilitation or by the simple fact that we do not have enough prison spaces. If somebody commits a violent offence or causes significant harm to another person, there must be consequences. The public understands that and victims understand that too.

The amendment does not remove judicial discretion, it simply asks the courts to show they have weighed all of these factors that are being decided, whether community service is appropriate and to record their reasoning behind it.

I thank Senator O'Reilly for her amendment and contribution. We are dealing with section 15 of the Bill, which deals with a proposed amendment I am making to the Criminal Justice (Community Service) Act 1983. We had a good discussion earlier about the use of incarceration and prison as a penalty for violation of the criminal law. In many respects the proposal I am putting in section 15 complements that and is reflective of a desire for courts to recognise there are other options available for the purpose of granting community service orders.

At present, it is limited to where there is a sentence of up to 12 months' imprisonment. What I am proposing in section 15 is that it would be extended to where you have to consider a sentence which has a potential penalty of up to 24 months' imprisonment. Similarly, I am doubling the amount of community service hours that will be put in place from 240 to 480 hours.

Sentencing is one of the most complex functions a trial judge has. It requires the court to take into account a whole variety of factors. Generally, we do not prescribe actual specific sentences for offences except in the case of murder where there is a mandatory life sentence, and I think that is appropriate. Other than that, there are circumstances in each case which need to be taken into account by judges in terms of not just the liability of the offender and the nature of the offence; but also the offender him or herself and the extent to which this is a first time offence, the extent to which it was out of character with what has happened previously in the person's life and the extent to which the person is an ongoing threat to the community. It is very hard to prescribe then within legislation. However, there are many offences with penalties of up to 24 months' imprisonment where the offender poses no risk to the community and where the public interest may be better served by a person undertaking community service rather than being in prison. That can arise in terms of serious theft or fraud offences. They are factors where there is not a threat to the safety of a person.

Every case that results in a community service order will help to free up prison spaces for offenders who generally warrant imprisonment. As I mentioned earlier, we are increasing the capacity within our prisons but also this is another factor and provision that will assist in making prisons more appropriate for accommodating the people who are there. There are many cases where the court will still determine that a custodial sentence is appropriate and, as acknowledged by Senator O'Reilly, it is for judges to make that determination.

Amendment No. 15 also proposes to set out the matters the court is to have regard to when considering a community service order. There is undoubtedly merit in consideration being given to the matters specified in the amendment but these are already matters to which any judge would be expected to give consideration when considering sentence. Moreover, as legislators we must have in mine the separation of powers and the independent of the Judiciary. I do not think it would be appropriate to prescribe or delimit the court's consideration in such a way. It is also the case that every convicted person's case must be considered on its own merits and those referenced in the amendment may not always be the most pertinent considerations in a given case. I fully accept that sentencing is a complex and complicated issue. It is very difficult for us to second-guess a judge who has heard all of the evidence and will know all of the circumstances of the offence and the offender. All we can do is try to set out in legislation what the range of sentences should be. As I said earlier, it does not always have to be a custodial sentence. What is being done here is, we are not saying to judges that they cannot put a person who is convicted of an offence with a penalty of up to two years in prison. We are simply stating that in that instance, consideration must be given to a community service order. It means 480 hours or up to 480 hours of community service by the offender if the judge goes for that option but I cannot accept the amendments.

Before I call Senator O’Reilly, I wish to welcome to the Visitors Gallery Deputy O’Gorman and his guests. I hope they enjoy their visit to Leinster House this evening. They are all very welcome.

Is Senator O’Reilly pressing her amendment?

I press my amendment.

Amendments Nos. 17 to 20, inclusive, are physical alternatives to amendment No. 16; amendments Nos. 18 to 20, inclusive, are physical alternatives to amendment No. 17; amendments Nos. 19 and 20 are physical alternatives to amendment No.18; amendments No. 16 to 20, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 16:

In page 19, between lines 9 and 10, to insert the following:

“Amendment of section 19A of Criminal Evidence Act 1992

16.(1) The Criminal Evidence Act 1992 is amended by the substitution of the following section for section 19A:

“Disclosure of third-party records in certain trials

19A.(1) In this section—

‘Act of 1950’ means the Nurses Act 1950;

‘Act of 1985’ means the Nurses Act 1985;

‘Act of 1995’ means the Civil Legal Aid Act 1995;

‘Act of 2005’ means the Health and Social Care Professionals Act 2005;

Act of 2011’ means the Nurses and Midwives Act 2011;

‘applicable record’, in relation to criminal proceedings for a sexual offence, means a child protection record, a counselling record, a medical record or a social work record—

(a) in relation to which there is a reasonable expectation of privacy,

(b) which was not compiled for the purposes of, or in contemplation of, the investigation into, or the prosecution of, the sexual offence concerned, and

(c) whether or not the service the subject of the record was provided for remuneration;

‘child protection’ means an intervention or a series of interventions designed to safeguard children from abuse, neglect, violence, exploitation or harm and to promote their safety, wellbeing and rights;

‘child protection professional’ means a person who has undertaken training or study resulting in a qualification, or who has professional experience, relevant to child protection;

‘child protection record’ means any record, or part of a record, made by any means, by a person who was a child protection professional at the time of the making of the record, in the course of investigating or managing concerns, or carrying out assessments or interventions, in relation to the safety, welfare, or protection of a complainant when the complainant was a child;

‘competent person’ means a person who has undertaken training or study or has experience relevant to the process of counselling;

‘complainant’ means a person in respect of whom a sexual offence is alleged to have been committed;

‘counselling’ means listening to and giving verbal or other support or encouragement to a person, or advising or providing therapy or other treatment to a person;

‘counselling record’ means any record, or part of a record, made by any means, by a competent person in connection with the provision of counselling to a complainant;

‘court’ means the District Court, Circuit Criminal Court or the Central Criminal Court;

‘disclosure application’ has the meaning assigned to it by subsection (2);

‘medical professional’ means—

(a) a registered medical practitioner,

(b) a registered nurse, or

(c) a registered midwife;

‘medical record’ means any record, or part of a record, made by any means, relating to the medical treatment of a complainant by, or ordered or initiated by, a person who was a medical professional at the time of the making of the record;

‘registered medical practitioner’, in relation to a particular point in time, means a person—

(a) who was a registered medical practitioner within the meaning of section 2 of the Medical Practitioners Act 2007,

(b) whose name was entered in the General Register of Medical Practitioners established under section 26 of the Medical Practitioners Act 1978, or

(c) who was registered in the Register of Medical Practitioners prepared and established under the Medical Practitioners Act 1927,

at that point in time;

‘registered midwife’, in relation to a particular point in time, means a person whose name was entered in—

(a) the midwives division of the register of nurses and midwives established under section 46(1) of the Act of 2011,

(b) the midwives division of the register of nurses established under section 27 of the Act of 1985, or

(c) the midwives division of the register of nurses maintained under section 41 of the Act of 1950,

at that point in time;

‘registered nurse’, in relation to a particular point in time, means a person—

(a) whose name was entered in the nurses division of the register of nurses and midwives established under section 46(1) of the Act of 2011,

(b) other than a registered midwife, whose name was entered in the register of nurses established under section 27 of the Act of 1985,

(c) other than a registered midwife, whose name was entered in the register of nurses maintained under section 41 of the Act of 1950, or

(d) who was registered in the register kept in pursuance of the Nurses Registration (Ireland) Act 1919,

at that point in time;

‘sexual offence’ means an offence referred to in the Schedule to the Sex Offenders Act 2001;

‘social care worker’—

(a) in relation to a particular point in time prior to the establishment under section 36 of the Act of 2005 of the register of members of the profession of social care worker, means a person who was practising as such and who held a qualification that is listed opposite the profession of social care worker in the third column of Schedule 3 to the Act of 2005 or a qualification that is a corresponding qualification, within the meaning of Part 9 of that Act, to that qualification, or

(b) in relation to a particular point in time following the establishment of that register, means a person whose name was entered in that register,

at that point in time;

‘social worker’—

(a) in relation to a particular point in time prior to the establishment under section 36 of the Act of 2005 of the register of members of the profession of social worker, means a person who was practising as such and who held a qualification that is listed opposite the profession of social worker in the third column of Schedule 3 to the Act of 2005 or a qualification that is a corresponding qualification, within the meaning of Part 9 of that Act, to that qualification, or

(b) in relation to a particular point in time following the establishment of that register, means a person whose name was entered in that register,

at that point in time;

‘social work record’ means any record, or part of a record, made by any means, by a person who was a social worker or social care worker at the time of the making of the record, as part of a professional practice relating to assessing or supporting the welfare of a complainant or any related intervention by the social worker or social care worker.

(2) There shall be a presumption against the disclosure of all applicable records. The presumption against disclosure may only be rebutted in accordance with subsection (11) and (12), furthermore—

(a) applicable records may not be disclosed to the accused in proceedings for a sexual offence without the leave of the court in accordance with this section, and

(b) no one shall request access to a counselling record nor shall a counselling record be disclosed to the prosecutor or to the accused in proceedings for a sexual offence without the leave of the court in accordance with this section.

(3) Where, in criminal proceedings for a sexual offence, the prosecutor or the accused is of the opinion that an applicable record ought to be disclosed to the accused under subsection (11), the prosecutor or the accused, as the case may be, shall make an application (in this section referred to as a ‘disclosure application’), in writing, to the court setting out—

(a) the specific applicable record sought, or particulars identifying same,

(b) cogent reasons for seeking the applicable record which engage with the facts of the case, and

(c) the grounds relied upon to establish that it is likely to be relevant to an issue at trial.

(4) A disclosure application under subsection (2) must be made within 28 days of service of the book of evidence (or the service of a précis of evidence in the District Court) and must be made on notice to the prosecutor or accused, as applicable.

(5) Where a disclosure application is made under subsection (3), the court shall consider the application and where it is satisfied that the grounds relied upon in the application—

(a) establish that the record is likely to be relevant to an issue at trial, the court shall order that a hearing referred to in subsection (8) be held, or

(b) do not establish that the record is likely to be relevant to an issue at trial, the court shall refuse the application.

(6) Where the court orders, under subsection (5)(a), that a hearing referred to in subsection (8) be held—

(a) the court may order that the person who has possession or control of the applicable record concerned shall produce the record to the prosecutor not later than the beginning of such period in advance of the hearing as may be prescribed in rules of court but the court may not make such an order in respect of counselling records,

(b) the court may order that the person who has possession or control of the applicable record concerned, including a counselling record, shall produce the applicable record to the court only, in a confidential manner as prescribed in rules of court, and not later than the beginning of such period in advance of the hearing as may be prescribed in rules of court, and

(c) without prejudice to subsection (7), the prosecutor shall, not later than the beginning of such period as may be prescribed in rules of court, notify the person who has possession or control of the applicable record concerned, the complainant, and any other person to whom the prosecutor believes the applicable record relates of the order of the court under subsection (5)(a) and, where applicable, paragraphs (a) and (b).

(7) The court may, at any time, order that a disclosure application be notified to any person to whom it believes the applicable record may relate.

(8) The court shall hold a hearing to determine whether the content of the applicable record should be disclosed to the accused.

(9) The person who has possession or control of the applicable record, the complainant and any other person to whom the applicable record relates shall be entitled to appear and be heard at the hearing referred to in subsection (8).

(10) In determining, at the hearing referred to in subsection (8), whether the content of the applicable record should be disclosed to the accused under subsection (11), the court shall take the following factors, in particular, into account:

(a) the extent to which the record is necessary for the accused to defend the charges against him or her;

(b) the probative value of the record;

(c) the reasonable expectation of privacy with respect to the record;

(d) the potential prejudice to the right to privacy of any person to whom the record relates;

(e) the public interest in encouraging the reporting of sexual offences;

(f) the public interest in encouraging complainants of sexual offences to engage with the provision of services by a child protection professional, a competent person, a medical professional, a social care worker or a social worker;

(g) the effect of the determination on the integrity of the trial process;

(h) the likelihood that disclosing, or requiring the disclosure of, the record will cause harm to the complainant including the nature and extent of that harm;

(i) whether disclosure of the applicable records is sought on the basis of a discriminatory belief or basis.

(11) Subject to subsections (12), (13) and (14), a court shall not, after the hearing referred to in subsection (8), order disclosure of the content of the applicable record concerned to the accused, and where applicable, the prosecutor, unless the court is satisfied, having examined the record, that—

(a) the record is likely to be relevant to an issue at trial,

(b) the information contained in the record cannot reasonably be obtained by any other means, and

(c) one or both of the following apply:

(i) there would be a real risk of an unfair trial in the absence of such disclosure;

(ii) it is otherwise in the interests of justice to so order.

(12) The Court shall not order disclosure of the content of a counselling record to the accused, and where applicable, the prosecutor, unless the court is satisfied, having examined the record, that the information contained in the record cannot reasonably be obtained by any other means and there would be a real risk of an unfair trial in the absence of such disclosure.

(13) The provisions within this section are mandatory. However, a complainant may, either in response to an application under this section or of their own motion through their own legal representation, indicate their consent to the disclosure of an applicable record to the court. Such consent should be fully-informed, based on legal advice and should be given directly to the court. In the event that a complainant wishes to provide their consent of their own motion, such application should be made on notice to the prosecutor and the accused within 28 days of service of the book of evidence or the précis of evidence as the case may be.

(14) (a) Where an order is made pursuant to subsection (11), (12) or (13), in the interests of justice and to protect the right to privacy of any person to whom the applicable record relates, the court shall only grant disclosure of such specific material as is strictly necessary and the court may impose any condition it considers necessary on the disclosure of the record.

(b) Without prejudice to the generality of paragraph (a), one or more of the following conditions may be included in an order made pursuant to subsection (11), (12) or (13)—

(i) that a part of the content of the applicable record be redacted,

(ii) that a copy of the applicable record and not the original be disclosed,

(iii) that the applicable record be viewed only at the offices of the court,

(iv) that no copies, or only a limited number of copies, of the applicable record, be made,

(v) that information concerning the address, telephone number or place of employment of any person named in the applicable record be redacted from the record, or

(vi) that the applicable record be returned to the person who owns or controls the said record.

(c) An applicable record that is disclosed to the accused pursuant to subsection (11), (12) or (13) must only be used for the purposes of the criminal proceedings for which the record has been disclosed and may not be disclosed to any person without leave of the court.

(15) The court shall provide reasons for ordering, or refusing to order, disclosure of the content of an applicable record pursuant to subsection (11) or (12).

(16) Where, upon application by the accused, the court considers that the interests of justice require the making of a disclosure application after the period permitted in subsection (3), the court may direct that such an application may be made.

(17) For the purposes of a hearing pursuant to subsection (8), all persons, other than officers of the court, persons directly concerned in the hearing and such other persons (if any) as the court may determine, shall be excluded from the court during the hearing.

(18) In addition to the meaning assigned to that expression by section 27 of the Act of 1995, ‘legal aid’ in that Act means representation by a solicitor or barrister, engaged by the Legal Aid Board under section 11 of that Act, on behalf of a complainant or witness in relation to an application pursuant to this section.

(19) Where any applicable record or counselling record containing opinion, interpretation, or third-party summaries is admitted in evidence, the judge shall issue a warning to the jury that such material is indirect, interpretive, may contain factual errors and should not be treated as a verbatim account of the complainant’s words or actions in particular where the complainant did not have any opportunity to review or correct such contents.

(20) The Minister shall, within 18 months of the commencement of this section, conduct a review of its operation and lay a report of that review before both Houses of the Oireachtas.”.”.

On behalf of the Labour Party, I am putting forward this amendment, which is seconded by my colleague, Senator Cosgrove. This amendment is primarily to deal with the issue which garnered much debate during the passage of this legislation thus far in relation to the issue of counselling notes. We submitted this amendment previously and it has been submitted in the Dáil as well. We want to submit it again to reiterate its importance.

This amendment was drafted by Lorcan Staines SC for the Dublin Rape Crisis Centre. The Labour Party, along with the Dublin Rape Crisis Centre and others, is supporting and proposing this important amendment. This amendment puts forward an alternative proposal on how we deal with a highly sensitive issue, in order to deal with it in an alternative way and ensure no counselling notes are used as part of trials in court. At the heart of this is protecting survivors and victims and ensuring that they are not retraumatised as part of this process. We must consider the constitutionality of what we are trying to achieve and we absolutely respect that. My colleague, Deputy Alan Kelly, our spokesperson on justice, was very clear on this when he debated the matter in the Dáil as well. We need to push this amendment as far as we can and try to achieve as much as we can and that is what this amendment proposes.

Our amendment makes clear that the interests of justice standard is acceptable for other applicable records but should not apply to counselling records and that express language providing for a clear presumption of non-disclosure is absolutely critical. This amendment represents an alternative option which we hope the Government can accept as part of this Bill.

I note that other jurisdictions are currently moving faster than the Irish Government on this particular issue. Canada is currently amending its laws on disclosure of records in sexual offence trials to strengthen protections there. In particular, they are separating therapeutic records from other records to ensure the application of a higher test before therapeutic records can be disclosed. This approach reflects the approach the Labour Party is proposing in this amendment. We have huge concerns with counselling notes being used, as do many civil society organisations that are working at the coalface of this. Our proposal is that there would be an independent panel with expertise, that no counselling notes would be used but that a narrative would be outlined, with clear limitations on that narrative in terms of details that would be provided in a court situation. What is ultimately critical is that there should be no retraumatising of victims and survivors. There also should be protections put in place as part of this for counsellors, that is, for those professionals working in that area.

We believe this is a sensible amendment that would significantly ameliorate the impact of the Bill, as currently drafted, in terms of the proposal in question, and that it would uphold the requirements in relation to what we are trying to achieve in order to ensure that counselling notes are not used. This is a constructive amendment. We are trying to improve this legislation and make it better for all those who may be affected by it, while also taking constitutionality into consideration.

I will speak to amendment No. 18, which is the amendment I feel most strongly about. We are proposing full and absolute protection for counselling records, in particular in sexual offence cases. It is not partial protection; it is not a high bar. It is an absolute protection with one exception only, namely, where a complainant freely and voluntarily chooses to disclose their own records. That is the clear and simple principle at the heart of the amendment. I will take some time to explain why we believe this matters so much.

When someone who has survived sexual violence walks through the door of a counsellor's or therapist's office, they are taking one of the most courageous steps of their life. They are asking for help. They are beginning to try to heal. At that moment of extraordinary vulnerability, they must be able to speak freely, honestly and without fear. They must be able to trust that what they say in that room will stay in that room, and they should never have to wonder whether the words they speak there could one day be handed to the person who harmed them. They should never have to sit across from a barrister in a courtroom while their most private thoughts, their most painful disclosures, their most fragile moments of healing are read aloud and used to undermine their credibility. That is what is happening. That is what we are here today to try to prevent.

It is important that the House understands that this is not the first time we have tried to address this problem. In 2017, legislation was introduced to create a formal process whereby the defence in a case would have to apply to a judge before counselling records could be disclosed. The intention was sound but the result was not. Dr. Susan Leahy of the University of Limerick, one of Ireland's leading experts in this area, has written clearly that while the 2017 legislation offered the potential to safeguard against unnecessary disclosure, it has failed to achieve this in practice. She found that complainants often consent to disclosure at a very early stage before they fully understand how their notes might be used to challenge their evidence at trial. Some waive their right to the formal process simply to avoid delays they fear will harm their case. The result is that counselling notes continue to feature regularly as evidence in sexual offence trials. The 2017 reform did not work. We cannot make the same mistake again.

I want to speak about Ms Hazel Behan, a survivor from Mullingar. Ms Behan has campaigned on this issue with extraordinary courage with her advocacy group, Éist - Saying No To Silence. She stood outside Leinster House last September and said the following words, which I want to be on the record of the House, "What happens in a therapy room with me and my therapist is none of your business - and it's certainly none, none of the business of the person who I believe harmed me." Ms Behan, prior to addressing the Oireachtas Committee on Justice, Home Affairs and Migration on that occasion, told reporters that survivors had been silenced for too long. She described the use of counselling notes in court as horrendously traumatising, something that degrades and disputes everything that a victim survivor is saying in court. She also said that the current system allows defendants to sit and consider the damage they have caused their victim. Hazel is not alone. Solicitor and survivor Sarah Grace, speaking at the launch of the Dublin Rape Crisis Centre's annual report in 2023, called the use of counselling notes in court a second violation. These are not abstract descriptions. They are the lived experiences of real people who came forward, sought help and tried to pursue justice but who found that the system used their healing against them.

The harm does not stop with those who have already gone through the courts. The damage reaches back much further to the moment a survivor first considers whether to seek help at all. Counsellor Barbara Kelly, who spoke at the protest outside Leinster House last September, said it is devastating when she has to explain to her clients that their notes may be used in court. She said some people seeking therapy are having to choose between getting justice and healing. That is an unbearable choice. No person who has been through what those survivors have been through should ever be placed in that position. The Dublin Rape Crisis Centre has documented that therapists now report that victims are reluctant to seek counselling after suffering sexual violence due to fears that their records could be used against them in court. If we think about what that means in practice, we can see that people who need help are just not getting it. The wounds that could begin to heal are left open. In some cases, survivors who might otherwise have reported matters are staying silent because they cannot face the prospect of their therapy being weaponised. We know from CSO figures that 30% of victims of sexual offences in Ireland in 2024 reported incidents that occurred more than ten years earlier. The disclosure gap is real and vast. Between 70% and 80% of sexual offences reported to the police between 2018 and 2023 remain uninvestigated. We are losing cases before they begin. We cannot afford a system that adds another barrier between a survivor and the courage it takes to come forward.

The Minister stated that said he wants to restrict the use of counselling notes as far as possible. He cited advice from the Attorney General to the effect that a complete ban would be unconstitutional on the basis of an accused person's right to a fair trial. However, the Attorney General's advice is not the final word on what is constitutionally permissible. It is an opinion. It is an opinion that other senior counsel have challenged. The Dublin Rape Crisis Centre sought its own legal advice from a senior counsel and was told that a blanket ban would face constitutional challenge. However, advocacy organisations and others have questioned whether third-hand notes from counselling sessions that are interpretive, subjective and inherently indirect could ever reach the threshold of exculpatory evidence, meaning evidence that genuinely benefits the defence. Section 16 creates a presumption of non-disclosure. That is a step forward. However, a presumption is not a prohibition. It still allows for applications to the court. It still requires complainants to engage with the legal process at one of the most difficult moments of their lives. It still subjects them to the prospect, however unlikely, that their most private records may be produced and examined. Our amendment would close that door completely.

I remind the House of what the Oireachtas Committee on Justice, Home Affairs and Migration recommended after hearing all the evidence on this issue, including that of Ms Hazel Behan, namely, a complete and unconditional ban on the use of counselling records in sexual offence trials. It did not recommend a presumption or a high bar; it recommended an unconditional ban. The Cathaoirleach of the committee, Deputy Matt Carthy, said that Ms Behan's evidence had a significant impact on every member of the committee. That is this Oireachtas speaking. That is pre-legislative scrutiny doing its job. Yet, the Government has not followed that recommendation. Our amendment follows it. We are asking the House to honour what one of the committees of the Oireachtas has said.

A further point that is often overlooked in the debate is that counselling records are not factual in nature. They are not transcripts. They are interpretive documents written by a third party and reflecting their observations and understanding of what a client has expressed. They may be incomplete. They may reflect the language and framework of the counsellor rather than the exact words of the survivor. They may record early disclosure, accounts that were incomplete or confused because that is the nature of trauma. That is how trauma memory works. To use such records to challenge a survivor's credibility in a criminal trial is fundamentally to misunderstand both the nature of trauma and the nature of counselling. It is to take the most human and the most healing part of a survivor's journey and turn it into a weapon. That is not justice; it is continuation of harm.

I have spent many years working through the RISE Foundation with people who are finding the courage to ask for help. I know what that first step costs. I know how fragile that moment is and that for many people, the decision to walk through the door of a counsellor or a support service is probably the bravest thing they have ever done in their lives. If there is any reason at all to fear that what happens in that room could be used against them, many will not take that step. We owe it to those people to remove that fear entirely - not to reduce it or manage it but to remove it. I am asking the House to go further than the Government has gone.

I am asking us to say clearly and without qualification that counselling is safe; that the room is safe; that what a survivor says to their therapist in their most vulnerable moment belongs to them alone and to nobody else; that the person who harms them will never have access to it; and that the court will never compel its disclosure. Full stop. This amendment is not radical. It is the right thing to do. It is what survivors have asked for. It is what the Oireachtas justice committee recommended and it is what the evidence demands.

I wish to speak to amendment No. 17. I support the amendments tabled by Senators Harmon and Black. The Minister has listened to this at length in the committee and in so many debates. I understand that it is like Groundhog Day. He hears the same thing over and over again. The issue is not going away because women, men and everybody who needs to attend counselling feel so strongly about the damage it would do if we keep this practice in place. I urge the Minister to act. I know he has listened to Hazel Behan, who is a fantastic advocate, and Paula Doyle. They gave very powerful testimonies in the justice committee. I know he is seeking advice about ways around it without having a complete ban. When someone is starting out on their journey after having a horrific experience and they need to seek counselling, they do not know at that time whether those notes are going to be subjected to being brought through the courts and whether their perpetrator will have all of this very private information about them. We know this is preventing them from going for counselling at the time. We know it is leading to suicide. The Minister mentioned he was at the launch of the report by Women's Aid. I outlined in the Chamber earlier the 162 pages of the report and that the statistics are worse than we have ever had on the island of Ireland. It is a national crisis, not just in the Twenty-six Counties but all across Ireland. We know the number of cases reported. We also know that they are only the cases that are disclosed and the names of the women and children who ended up in the report. I plead with the Minister to say that the Upper House has meaningful debates and that today he is going to accept one of these amendments and do the right thing for the future of victims in Ireland. I hope he is going to find a way to ban the use of counselling notes for all of the people who have suffered. They will be in court because they have suffered as a result of the actions of someone else. I know we need to ensure there is a fair trial but there are ways around it. Someone's evidence and opinion of their evidence – because it is the counsellor's notes – should not be the main source for adjudication in a court case due to the amount of trauma it causes to the victim.

All of the amendments to this section are trying to come at something we all know to be true, which is that the signal being sent on the use of counselling records in sexual offences trials will have a devastating effect, not only in terms of the retraumatisation of victims or the chilling effect, as was outlined in terms of counselling and people accessing support, but it will also have a very serious chilling effect on the law. The interests of justice get talked about at one point in this Bill, but if we apply a wider frame to it, and we put a test on it and apply it to the provision allowing for counselling notes to be accessed, I do not believe that is in the interests of justice. The issues of a fair trial and so forth have been cited but, again, the instances are low in terms of evidence being provided of situations where this is clearly affecting the outcome of a trial.

What we know, based on the statistics, is that 71% of victims of incidents of sexual violence did not report it to the Garda. There is a crisis of justice in relation to sexual violence in this State. The same statistics and survey found that 76% of the public, not just the victims, believe that victims of sexual violence are going to get a hard time in a trial. The vast majority of the public do not have confidence in the victims of violence getting fair treatment at trial. The vast majority of those who experience sexual violence are afraid to go to the guards. We have a massive crisis in justice right now in terms of how sexual violence is dealt with and how justice is meted out in society. We should not resort to saying that it is a pity, that here is how it is and that we are worried. We should be asking what more we can do. How can we improve the situation? How can we get it down to 50% of those experiencing sexual violence in the State believing that it is worth going to the guards and going through a court case and that they will not be retraumatised and dragged over the coals, which is the common perception? That is the perception of the vast majority of people in towns, villages and families. If someone experiences sexual violence, people will tell them it is not worth it. It is not just that people would be afraid to go to counselling, even though it is huge to have to choose between healing and justice. That is what is being said here. If someone knows counselling could be used against them, it damages the whole process. It may or may not be used. The Minister could say not to worry because it will very much be balanced out and there will be all of these caveats, but they are not enough. The very fact is that when they have the conversation they know, at a minimum, somebody else will see it who they do not know - those who will be determining if it is relevant. This is after a person has felt violated in that way. Regardless of whether it gets given to the person who may have attacked them and their lawyers, other strangers will read their personal trauma when making a determination on whether they want to give it to the person who may have attacked or assaulted them.

That is what is ahead of a person when they are at the door of the counselling office if they have experienced sexual violence in the State. What is ahead of them if they go through the other door – into the Garda – is the idea of trials the public do not believe will treat victims fairly. They say they believe they will get a harder time than victims of other crimes. Most people feel they will not get justice. That is the problem we have. We must find ways to build levels of trust and get our way out of that system and away from the problem. Not all, but the vast majority of victims are women. We are also talking about a whole swathe of the population who are afraid of going to the justice system for certain offences. That should be a problem we debate at length in Bill after Bill. We should try everything to build confidence in the justice system among that part of the population. Instead, stuck into a miscellaneous Bill with lots of other things we are saying "By the way, your counselling notes will now potentially be made available."

This is a backward step from a situation that was already a crisis of justice.

I want to go to some of the specific amendments here. First of all, I recognise the very detailed and excellent work that was done and put forward by colleagues in regard to amendment Nos. 16 and 17. They are people who have tried to put forward what might look like a better system with more safeguards. They have tried to do the work of delivering things like the presumptions of non-disclosure in a meaningful way and tried to put in safeguards. I recognise the work there.

Our amendments, in comparison, are somewhat simpler. In regard to amendments Nos. 18 and 19, the Minister will know the joint committee on justice spent significant time on this issue. My colleague, Senator Ruane, also sits on that committee. In its pre-legislative scrutiny it consulted the victims and survivors of sexual violence and talked to practitioners and experts. It had the consensus from survivors, practitioners and experts alike that the disclosure of counselling records in sexual offences trials has a hugely traumatic impact on victims and forces them into a qualified decision on whether to pursue justice in relation to their experience of sexual violence or to seek therapeutic support or intervention. The committee's conclusion was that a complete and unconditional ban should be inserted. I know what the Minister has said about such a ban. People have come forward and said why it is a backward step. Even if this was happening previously, the decision to allow it now, in 2026, says that we think this is something that is okay. That sends a signal to all of those who come forward, who spoke to the Oireachtas committees, who have given their testimonies, who talked about the impact of it, and who said what the effect of such disclosure, or the threat of such disclosure, has on them. It sends a negative signal to those who have come forward, not just those who went to the Garda or spoke to their counsellors but also those who walked in the door of the Oireachtas and contributed here. They were brave enough with that third bravery, to not just seek counselling and support and not just seek justice but also to seek the ear of our lawmakers and decision-makers. They did that bravely, the committee listened to them, the committee sent a very clear signal and that signal has not been heard and is not reflected in this legislation.

We propose in our amendments, Nos. 18 and 19, that the substitution of section 19A - I refer to amendment No. 18 - would prevent the disclosure of counselling records as evidence except where it is consented to by the complainant or the victim. We believe the rewording of this section achieves a better balance. It ensures the rights on the interests of the complainant and defendant. The Minister will note that the Dublin Rape Crisis Centre, which I spoke to, said the bar is quite difficult. The same bar is being applied to persons who want to speak about their own experience in counselling and those who are seeking access to that individual's private testimony from counselling. I think it is appropriate that there would be a different bar for a person when it relates to their personal data and testimony, much as we saw in relation to the mother and baby homes, where one of the things people wanted was access to their own records of their own testimony of what they said, and for that to be something that could be spoken about and be useful. There is an argument and there may be cases where a person, in relation to their own counselling records, would like to seek disclosure of those records - their testimony and experience. In those circumstances, amendment No. 18 would allow for disclosure.

Amendment No. 19, separately, relates to the disclosure hearings that the Minister proposes to introduce, which would see the court consider on application whether a complainant's counselling records should be included as evidence in sexual offences trials. Our amendment proposes the court should only allow for the inclusion of these records as evidence in a situation where there is a risk to a fair trial. Again, this is a narrowing of it. I still favour a ban on their inclusion and I will be voting accordingly. As a compromise piece, and if the Minister cannot deliver that request for a full and total ban that was put forward by the committee, or indeed the caveat of such personal information only being used with the permission of the person whose information it is, then at a minimum we believe a fairer balance is if it is only to be used in a situation where there is a risk to a fair trial. That is a higher and separate bar.

I do not think this whole provision is in the interests of justice but the "interests of justice", as it is used here, is something that could be very widely construed. Is it that, for example, a person's testimony on their sexual history is going to be attempted to be used as an ameliorating factor? Is it going to be an attempt, in terms of justice, by someone to look for lesser sentencing, to impugn character or imply ambiguity about consent? It is one thing regarding a fair trial to say there is a situation where somebody may be looking to say they believe a solid injustice is being done - there is possibly a case there - or that a fair trial is not being granted, but the interests of justice, in a wider framing, speaks to the risk of these records being used in relation to attempts to impugn the character of a complainant and to create ameliorating or compensatory circumstances around a case. That is a really worrying aspect.

Our preference would be that the Minister would listen to the committee but we have put forward what we believe are reasonable compromise proposals. I also acknowledge the very detailed and nuanced compromise proposals which have also been put forward by other members of the Opposition, all of whom, I think, are seeking to engage in good faith in addressing this issue. They are trying to ensure we do not send a piece of legislation out into the world that will compound the very real feeling of many in this State that they will not be treated fairly if they experience sexual violence.

I thank Senators for the amendments they have put forward and for their contributions. I will start by saying that I understand and acknowledge the depth of feeling that exists on this issue. I have heard it not just on Committee Stage in the Dáil and here and on other Stages. I have heard it from people who have come before me and I am fully aware of the legitimate intensity of feeling that people have in respect of this issue. I wanted to say that at the outset. The more I listen to people, the more I appreciate that intensity, so I have no difficulty in hearing people refer to this on a number of occasions.

There is something I think there is agreement on. The current statutory regime is unacceptable. I was a Member of the House back in 2017 when this was a real issue of concern and we changed the law. Both the Dáil and the Seanad had debates on it. The law was changed and we thought we had resolved the issue of counselling notes being routinely handed over to the defence in sexual assault or rape trials and used in cross-examination. When we saw what happened after 2017, there was a recognition that, notwithstanding the considerable efforts that have been made by the Oireachtas, the measures we introduced in 2017 did not work. That statutory regime is the regime that is in place at present.

That is why we must all accept that that regime in statute is unacceptable. We have since had a judgment of the Supreme Court in the AM case, which has slightly alleviated the circumstances. I am still convinced that we need to change the legislative scheme that operates. Everyone in this House agrees in respect of that.

The amendments before the House are different, in many respects. The Sinn Féin amendment and the amendment proposed by Senator Higgins adamantly suggest that there has to be a ban on counselling notes, whereas Senator Harmon and the Labour Party's amendment do not adopt that position but instead propose a different mechanism to the mechanism I have put forward. It is important to acknowledge that there is a broad difference of views.

I am not standing on my own saying I am the person who says we cannot ban counselling notes. It is recognised by the Dublin Rape Crisis Centre that we cannot ban counselling notes. It is recognised by the Labour Party that we cannot ban counselling notes. The advice I have received from the Attorney General is unambiguous on this. Sometimes one receives advice from lawyers, and it is grey and they say, "On the one hand, on the other hand". The advice I have received, which is obviously advice that the Dublin Rape Crisis Centre has received, is that a ban on counselling notes will be adjudicated as unconstitutional.

We need to look to see what impact that would have on survivors and complainants before our courts. If I introduced the amendment suggested by Sinn Féin or that advocated by Senator Higgins, we would find ourselves in a situation relatively quickly whereby a person who has been charged and convicted of rape or sexual assault would challenge the legislation on the basis that they had been denied access to a category of evidence they say contained probative evidence that could have been of use in getting an acquittal for them in the proceedings.

If that happens, and if the courts adjudicate that the legislation the Houses of the Oireachtas introduced and enacted is unconstitutional, that would be a devastating consequence for people who are complainants or survivors of sexual assault and rape. I am not prepared, just for the sake of my own political convenience and so that it will reflect well on me, to turn around and agree to ban counselling notes notwithstanding what the Attorney General said. I simply cannot do that.

It is not an issue that people who are not lawyers need legal advice on, because when it comes to this issue there are two rights at stake. On the one hand, there is a right that we have all spoken about and that I want to give priority to, namely the right to privacy of the women and men who go to counselling and have notes generated for the purposes of recording the issues they have identified in the confidential environment of the counselling room. That is a right to privacy that must be respected. It is not an absolute right to privacy.

There are no absolute rights in our constitutional framework. The right to life is not an absolute right because self-defence permits one to deny it. There is the right to privacy on the one hand, and on the other there is the right to a fair trial. I am not criticising people for not mentioning that, but I cannot ignore that. If I ignore that, I would be walking us all into a legislative and judicial minefield because it is a right that is set out in our Constitution. It is provided for in the European Convention on Human Rights and it is recognised in the EU Charter. The right to a fair trial has to be given some recognition by people in the Houses of the Oireachtas when we try to formulate a solution to this.

Section 16 of the miscellaneous provisions Bill sets out a very detailed statutory regime. The one abiding characteristic is that it transfers and moves the balance of those two rights very much in favour of the right to privacy. It does that in a number of ways. First, it is important to point out that I am broadening it from counselling notes to include all personal records. These are factors that will add greater protection to individuals in terms of extending the breadth of the right to privacy. In subsection 6(f) of the section, I have put in place a presumption of non-disclosure. That is how the Attorney General and others have described it to me. It is categorised as a presumption of non-disclosure because it states that: "[A] court shall not, after the hearing referred to in subsection (8), order disclosure of the content of the applicable record concerned to the accused, and where applicable, the prosecutor, unless the court is satisfied" and then sets out some requirements that I will come to.

Any judge interpreting this section will see that there is a statutory imperative set out by the Oireachtas stating that one shall not provide disclosure of these personal records unless one has fulfilled one of the two following requirements: first, that it is relevant to an issue at trial; and second, that not to provide them would create a risk of an unfair trial in the absence of such disclosure. If that was not in the statutory scheme, we would say that we are not going to disclose them even it if it results in an unfair trial.

I again return to the principle of protecting applicable records, as I now call them. In our criminal justice sphere, there is no category of evidence where we say one cannot look at that. We spoke earlier about electronic evidence. Nowhere in our criminal justice system do we say that there is a category of evidence that people simply cannot look at even if there is information in it that is highly relevant and probative and could be beneficial to a person in terms of finding them not guilty of a criminal offence. I cannot ignore it, but that presumption has shifted the balance very much in favour of the right to privacy.

The Bill ensures there is a hearing. The reason the 2017 proposals did not work was because under them there was a provision whereby a complainant could waive the entitlement to have a hearing. Under the new proposal, there must be a hearing. When an application is made by a defence or prosecutor to access what is now an applicable record, a judge must look at the record. We will never have a situation whereby counselling notes, as has happened under the statutory scheme in place, are simply handed over to a defence in a trial and it looks through them and says something is interesting and it will refer to it.

The only time they will now be disclosed is if a judge looks at them and, having done so, says the notes should be disclosed even though he or she is mandated by the Oireachtas not to disclose it, but it should be disclosed is because they come within one of the exemptions. There would be an unfair trial if the judge did not disclose that to the accused or, alternatively, it is in the interests of justice to do so.

The reason the interests of justice is mentioned in the Bill is because in many instances counselling notes are of benefit to the prosecution in a criminal trial. This is something I was not aware of until I had a recent engagement with a different group of survivors, Beyond Surviving, who pointed out how beneficial counselling notes can be to the prosecution. This is something we should not lose sight of because some trials, including a very prominent one in Northern Ireland recently, concern historic offences. It can be of great benefit and advantage to the prosecution and the complainant in such a trial if they can say that something happened many years ago and that there is a record of the complainant stating that it happened in counselling notes from many years ago. Counselling notes from many years ago may corroborate what a complainant is saying now. There are reasons that they may be needed in the interests of justice.

I understand the intensity of feeling about this.

I want the Senator to know that, in the Government, there is a real concern and desire to move this as much as possible towards the right to privacy. I have spoken to the Taoiseach about it. I spoke last week to the Tánaiste about it, who is very concerned to make that sure we do as much as possible. This may be a bold statement to make but I believe that the legislation I have set forward here will solve the problem about which we are concerned, that being, the routine disclosure of counselling notes from the complainant in the trial to the accused. I believe we will not see the misuse of counselling notes in trials the way we have seen it in the past. What I have agreed is that I will do a full review of it after 18 months just to see how it has worked. However, I really believe that the proposals I have set out here are preferable to Senator Harmon's proposal. Being frank, Senator Harmon's proposal is the only one I could give consideration to. I cannot consider the total ban on counselling notes contained in the other amendments. I am conscious that Senator Harmon's amendment, which comes from the Dublin Rape Crisis Centre via Lorcan Staines SC, both of whom I have great respect for, puts forward a scheme that I do not think is as resolute or as effective as the scheme I am putting forward. I am also conscious of the fact that the amendment, which came from Deputy Kelly and the wider Labour Party on Committee State, has changed. In that amendment, there was an independent review panel. I welcome the fact that this has now been removed but it is still not an amendment I should accept. The proposal I have put forward is the most satisfactory one.

I always listen carefully to Senator Higgins and I am very happy to take criticism, but it is inaccurate to state that the legislative proposal contained in this Bill is a backward step. One thing we all agree on is that the current statutory regime is unacceptable. It has to change. The easy thing for me to do is to just move away from this and not change it because it is too controversial and is arousing too much opposition. I am not prepare to let the current statutory regime remain. For that reason, this is not a backward step. It is a very positive step. In contrast to most measures that I introduce, I believe this measure will resolve the problem that all of us want to see resolved.

The backward step I am seeing is in terms of the signal it sends to those who have campaigned and pressed so strongly for the prohibition and greater protection. They do not find the solutions that have been put forward to be adequate. They do not find them to have moved the dial sufficiently and in the same way that is needed. There are two very specific matters that the Minister has not addressed as regards our amendments Nos.18 and 19. If he could come back in on those, it would be useful. I understand that the interests of justice piece is something that might be used by the prosecution but what we are pushing for in amendments Nos. 18 and 19 is the idea that there would be a separate process when a person's own notes are being used. I would love if the Minister could address that issue. This was highlighted as a concern by the Dublin Rape Crisis Centre. It said that, despite the objections from survivors and front-line services, the Government was removing the waiver that had been in section 19A and was taking agency from persons in relation to their own information. That is an important issue.

What this reminds of is the mother and baby homes and how important it was that people could own information. There is a difference. Potentially, there is an argument to be made on the side of both the prosecution and the defence whereby a person could choose a waiver in respect of their own counselling records, especially now as the Minister expands the provision to other relevant records, too. It could be lots of relevant records. This is especially true for persons who have undergone traumatic situations where to testify and bring evidence forward, they are able to point back exactly to the situations and the context. Someone could say "My records" about the relevant records that belong to them. This is where there is a bit of a difference. The Minister talks about balancing privacy and the right to a fair trial. I would say that there is a wider context of the question of fair trials for victims of violence. It is something the public do not have confidence in.

It is not just about privacy. The Constitution provides for privacy, too, but there is also what we have under GDPR and other things, which is the idea of a person's information. It is not just privacy, but the idea of who owns people's information and their own story. Who owns what they have said to a councillor and their own medical records? Do they belong to a person? As such, should a person decide rather than the State saying that these are records that are out there and it will decide who it believes should be able to have access to their records? There is also the question of ownership of a person's record and story, which particularly matters to victims of sexual violence. We saw in the past that it mattered very much to victims of institutional violence.

One of the things we were getting at - regardless of whether the Minister agrees with the framing of it, I would like his response to this point - was the idea that the person should be able to waive rather than there being a process where a person discloses their own records is something that could be challenged and pushed against. If the Minister had a separate regime in respect of persons using their own records, he would not need to put in that provision, which widens it past a fair trial or the interests of justice piece. Does he understand what I mean? Looking at the two together, he could take the approach of having a mechanism, which we did have in terms of the waiver - that is why this is a backward step from many perspectives - whereby victims of sexual violence could chose to allow their own records to be there rather than being able to apply for their records and their own story to potentially be considered in court. That is the difference. That is the piece that is a bit of a backward step. The Minister is also going through an extra hoop for people to see what someone talked about back in 2005 or 2006 in terms of their records. That is a different piece.

If the Minister had, as the Dublin Rape Crisis Centre and others have suggested, allowed for that different mechanism for individuals' own counselling records to be introduced, then he would not have to have such a wider provision in terms of both the fair trial and the justice provision, potentially, as being two routes that would allow records to be used more broadly. Will the Minister comment on why we cannot have that idea of the separate regime in the use of a person's own records?

The reason the 2017 statutory regime did not work is because it provided for a waiver. Senator Higgins refers to it as me now removing agency, but the reason the waiver made the scheme non-workable was because many people - complainants in sexual abuse or rape trials - were told they did not want to go through an interlocutory preliminary hearing to have an assessment as to whether the counselling notes should be handed over and that they should just hand them over. There is a provision under the legislation. I think it was subsection (19), whereby someone could just waive their rights and the notes could be handed over. What was happening, understandably, was that people who wanted to get their trials on as quickly as possible decided that they would hand them over.

Unfortunately, I cannot do both. If I am going to retain a statutory provision that provides for a waiver, we are going to have the same problem as we had before.

What is happening now will put more pressure on the prosecution and, indeed, on the defence. There will have to be a hearing in respect of the applicable records. A judge will look at these and will only decide to disclose them where there is something relevant for the purposes of ensuring a fair trial and in the interests of justice. It will reduce the number of applications. The statutory scheme will make it much fairer.