2026-06-10

I move amendment No. 1: In page 7, line 23, after “2004,” to insert “the Criminal Justice Act 2006,”. I will deal first with amendments Nos. 1, 21 and 32. Amendment No. 1 amends the Long Title to include a reference to the Criminal Justice Act 2006. Amendment No. 21 is a technical amendment to section 16(1)(b) to substitute a reference to the singular "subsection" with a reference to the plural "subsections". Amendment No. 32 is a technical amendment to section 18 to substitute a reference to “section 38(1) and section 45” with a reference to “sections 38(1) and 45”.

We will move to amendment No. 2. A recommittal is necessary in respect of this amendment and the other related amendments as they do not arise from committee proceedings and relate to the motion to instruct to the committee. Amendments Nos. 2, 33, 35 to 45, inclusive, and 72 are related and will be discussed together.

I move amendment No. 2: In page 7, line 32, after “trial;” to insert the following: “to give effect to the ratification by the State of certain amendments to the Rome Statute of the International Criminal Court, to further enable authorities in the State to cooperate with the International Criminal Court, and for those and other related purposes to amend the International Criminal Court Act 2006;”. I am pleased to introduce these amendments, which propose a number of technical amendments to the International Criminal Court Act 2006 to give necessary effect to Ireland's intended ratification of the amendments to Article 8 of the Rome Statute. The main objective of these amendments is to amend the International Criminal Court Act 2006 to make clear that war crimes within the meaning of the Act include Article 8 of the Rome Statute. Expanding the domestic definition of war crimes in this way will enable the State to give full effect to the principle of complementarity, which I spoke about earlier. These amendments will also provide a legislative basis to ensure that Ireland can fully co-operate with the International Criminal Court, ICC, in respect of all crimes. Amendment No. 2 inserts new text into the Long Title of the Bill. Amendment No. 36 is a standard definition that defines the International Criminal Court Act 2006 as the "Act of 2006". Amendments Nos. 33 and 35 are consequential on that. Amendment No. 37 inserts some new terms for definition in the interpretation provision in section 2 of the 2006 Act. First, the definition of the Rome Statute is updated. Second, it defines the term "crime of aggression". Third, it defines the term "crime within the jurisdiction of the International Criminal Court". Fourth, in order to future-proof the extent of Ireland's ability to co-operate with the ICC, a new order-making power is inserted as a new section 64A in the 2006 Act. Finally, it inserts a new subsection (1A) to clarify that the term "crime within the jurisdiction of the International Criminal Court" includes an act for which criminal responsibility is provided for by Articles 25 to 27, inclusive, of the Rome Statute. Amendment No. 38 inserts an additional subsection into section 6 of the 2006 Act to clarify that where following the commencement of the section, a relevant amendment has been adopted with respect to Articles 6 to 8, inclusive, of the Rome Statute. Any reference to an article of the Rome Statute in section 6 should be construed without having regard to that relevant amendment. Amendment No. 39 replaces section 8(1) of the 2006 Act with a new subsection clarifying that, in addition to applying to genocide, crimes against humanity and war crimes, ancillary offences under the 2006 Act shall apply with respect to offences against the administration of justice, but not with respect to the crime of aggression. A new subsection (1A) will also be inserted in section 8 to clarify that for the purposes of subsection 1 account shall not be taken of any future relevant amendments that may be adopted to articles of the Rome Statute. Amendment No. 40 ensures that no retroactive effect is given to the new domestic offences created by the amendments to the definition of the Rome Statute. Amendment No. 41 clarifies that when the State exercises extraterritorial jurisdiction over war crimes, the referenced Article 8.2 of the Rome Statute shall not be construed as that Article, as amended by a relevant amendment. Amendment No. 42 clarifies that the Minister for Justice, Home Affairs and Migration shall be able to request the ICC to provide assistance with a domestic investigation or prosecution of an offence against administration of justice, in addition to ICC offences or serious offences. Amendment No. 43 inserts a new section 64A into the 2006 Act in order to confer an order-making power whereby should future amendments be adopted by the state parties to the Rome Statute definition of genocide, war crime and crime against humanity or the crime of aggression, an act specified in that amendment may be prescribed by the Government on my request, having consulted with the Minister for foreign affairs. They are the amendments until we come to amendment No. 44, which makes a number of technical amendments to sections 4, 19, 22, 31, 37, 38, 50, 50A, 51, 52, 53, and 63 of the 2006 Act. Amendments Nos. 45 and 72 insert an additional Schedule 1A into the 2006 Act. Part 1 of the Schedule will set out the three sets of amendments to Article 8.2.1.b and Article 8.2.1.e of the Rome Statute, concerning war crimes committed in international and non-international armed conflicts respectively, adopted in 2010, 2017 and 2019. Part 2 will set out the amendments to the Rome Statute providing for the exercise of jurisdiction over the crime of aggression.

Pursuant to Standing Order 194(3), it is reported to the Dáil that the Long Title has been amended.

I move amendment No. 3: In page 8, line 6, after “2021;” to insert the following: “to provide that the Minister for Justice, Home Affairs and Migration may, in respect of applications made to the Minister, issue to certain persons certificates of disregard in respect of certain historical convictions and other determinations relating to consensual sexual activity;”. The amendments I am moving in this group are in respect of the disregard scheme. Amendment No. 3 is grouped with amendments Nos. 8, 12, 46 and 51 to 64, inclusive. These amendments collectively provide for an application-based scheme to enable the disregard of certain historical convictions and other determinations relating to consensual homosexual activity. The other determinations in question are formal Garda cautions given in lieu of prosecution and probation orders given in lieu of conviction. The substantive amendments providing for the scheme are amendments Nos. 51 to 64, inclusive, which collectively insert a new Part 14 into the Bill, comprising 14 sections. Amendment No. 51 inserts an interpretation section for the new Part 14. It includes the key definition of "relevant conviction or other determination", which includes convictions in a criminal or military court for the offences of buggery, attempted buggery, gross indecency and importuning. It also defines the categories of persons that come within the definition of an immediate family member and that of a relative. This is relevant for the purposes of applications that may be made on behalf of deceased people. Amendment No. 52 inserts a new section which sets out the criteria that are to apply to the granting of a disregard application. Those criteria of course include that the relevant person did not cause any other person to participate in the sexual activity without their consent. Amendment No. 53 inserts a new section setting out certain key provisions in relation to the making of an application. This includes provision that a disregard application may be made by a relevant person, namely, the person who incurred the conviction or by someone nominated by the relevant person to make the application on his behalf. It also provides that where the relevant person is deceased, a disregard application may be made by an immediate family member, or if no immediate family member can or wishes to make an application, by a relative, provided there is no objection from an immediate family member. Amendment No. 54 inserts a new section providing for the appointment of suitably qualified or experienced independent persons to consider applications and independent reviewers to carry out reviews in cases where the Minister proposes to refuse an application and the applicant seeks such a review. Amendment No. 55 inserts a new section providing for a preliminary assessment of an application by the independent person in order to satisfy himself or herself as to whether the applicant is the relevant person or is otherwise eligible to make an application on behalf of a deceased person. Where the independent person is not satisfied, the same provision is made that he or she shall not consider the application further and shall notify the applicant and the Minister accordingly. Amendment No. 56 inserts a new section providing for the substantive consideration of the application by the independent person and the subsequent making of a recommendation to the Minister as to whether the independent person is satisfied that the conviction should be disregarded. The section includes a provision that any public body which may hold records relevant to the application shall provide those records to the independent person on request. Amendment No. 57 inserts a new section providing that the Minister shall consider the independent person's recommendation and either issue a certificate of disregard or else notify the applicant that the Minister is not satisfied that the conviction should be disregarded. The section provides that where a disregard certificate is issued, the Minister shall notify all relevant public bodies and that they shall annotate any relevant records they may hold in order to clearly reflect the disregard. Amendment No. 58 inserts a new section setting out the general effect of a certificate of disregard. The section effectively provides that the relevant person shall, to all intents and purposes, henceforth be treated as if the conviction never occurred and that there are no circumstances in which the disregarded conviction shall be disclosable, other than where the relevant person chooses to disclose it. Amendment No. 59 inserts a new section to provide that an applicant may seek an independent review of the matter, either where the Minister has proposed to refuse a disregard or where the independent person is not satisfied that the applicant is a person eligible to make the application. In either case, the application shall be examined afresh by an independent reviewer other than the person who originally considered the application and a recommendation submitted to the Minister as to whether or not to reaffirm the decision in either case. Amendment No. 60 inserts a new section to deal with a scenario where, subsequent to issuing a disregard, the Minister receives information giving rise to the reasonable belief that the application included or was supported by false or misleading information and the Minister is no longer satisfied that the conviction should be the subject of a certificate of disregard. The section provides that the Minister shall in any such case notify the applicant that the Minister intends to revoke the disregard and that the applicant may seek a review, which shall be carried out by a retired judge of the Circuit Court, High Court or Court of Appeal appointed by the Minister. Amendment No. 61 inserts a new section to provide that where the Minister proceeds to revoke a disregard, he or she shall notify the applicant and also the relevant public bodies which shall be required to re-annotate their records to reflect the revocation. Amendment No. 62 inserts a new section to provide that the Minister shall make appropriate efforts, including a public information campaign, to raise awareness, particularly among relevant persons in the State and beyond, of the disregard scheme and the effects of a disregard. Amendment No. 63 inserts a new section containing a number of provisions relating to the protection of personal data under the scheme. This includes provisions for the redaction of any non-relevant convictions held by a relevant person, if alive, or any information that could identify any other living person in connection with any offence. Amendment No. 64 inserts a new section to provide that nothing in this Part shall create any new rights or any cause of action, nor impose any liability on any person or on the State. This is provided for the avoidance of doubt. Finally, there are a number of technical, consequential amendments as follows. Amendment No. 3 amends the Long Title of the Bill to take account of this new Part, while amendments Nos. 8, 12 and 46 each amend a number of definitions and references to enactments elsewhere in the Bill to take account of related references introduced by the new Part.

This is basically the time where we get some discussion on the content of the amendments. As said earlier, I welcome the disregard scheme that is announced. I also welcome those members of the LGBT disregard campaign who are present in the Visitors Gallery. I thank them and other Deputies for all their hard work and for, thankfully, as the Minister has admitted, putting pressure on him, who in turn put pressure on the officials.

Yes, certainly.

We are where we are and we have it before us. Between now and the debate in the Seanad, there may be small technical issues, as there always is with legislation, especially historical pieces. There was a question about why we are not going pre-1922. There have been pardons given by Presidents. Why 1922? Why was it not 1937 with the Constitution? Why not 1948 when the executive authority Act was repealed?

1962.

Why not 1916, 1867 or if we want to go back to the first republic of 1626? That is something the Minister will have to answer himself or I will keep raising it. In the main, the value of this is for families who have, in living memory, loved ones who have passed and who have had the smog or shadow of convictions upon them who were affected and those who are still alive, because there were still people before the courts well into the 1980s and early 1990s. The fact they were before the courts hung around like a bad smell on them and affected all of their work. One of the public bodies that may have information is adoption. As someone who sought adoption of a child would be refused if they had a conviction, that may be one of the bodies. I mentioned the mental health institutions. The Department of education was also always very scrupulous about digging out people and throwing them out if they were anyway suspect in its eyes. There is the question of the employment records of people and whether they are kept. I do not know whether it is the Department of public expenditure or whatever. It is one of the provisions here that the Minister shall "as soon as practicable, notify, or cause to be notified, each public body". That is not just the public bodies that I mentioned, it could be other public bodies. It is to ensure that. In the private sector with social media, there exists the right to be forgotten. One of the problems with some of this is that the names, and addresses in some cases, in the convictions are available online if one searches newspapers and so on. It is not necessary that we look for it today but it is something to look at to see whether an equivalent right to be forgotten can be done and that people who had that disregard could approach the social media companies, the newspapers or whoever to blank out those reference in order that they do not come up in a search. I believe that is the method used in the right to be forgotten. That was brought in to protect people with small or low-grade convictions to ensure it was not held against them when they went for employment or through other types of vetting processes. It is welcome. Court documents will be key in this in many ways because when I did the research on convictions, which was only cursory, the newspapers carried very little specific detail. The Minister is right that distinctions have to be made and sometimes they did not make the full distinction of the background of whatever case. The churches are another case in point. They would have records of people. Suicides are another record. If the Minister can manage to stick to the timetable that set out two months for the records to come back from any Department, in this country that would be very interesting. It will not be the Minister but rather the independent assessor and they must then make the judgment within two months of that. I would welcome that. The Minister has set himself a high bar. In addition to access to the National Archives, the other main one is the military services records as well. There are records there. There were people who were not necessarily court-martialed but were cashiered out of the Defence Forces rather than being charged. They would have those records in personnel files. This is not to add a burden; it is just to make sure. It might just be a provision at the end of the list of the public bodies that says, "and any other public body that the independent assessor deems fit". I do not know whether that would cover it. It is just in case there are instances because it might be people in the Coast Guard or in other services. I am not an expert on all of this because, as I said, when one researches this, the research is quite closed. It is welcome that we are trying to close a very dark chapter in our history.

I just have a few brief comments to make. The issue in relation to the pre-1922 convictions is obviously different to what the working group said, which is a pity and the previous speaker spoke about military archives as well. How do we deal with that? The working group proposed a dedicated independent body as the first contact, modelled on the Irish Human Rights and Equality Commission, IHREC. This is the first time we are getting this component of the legislation put into this Bill. We will not go back and talk about that again. However, was that something the Minister considered or does everything have to be transmitted through the Department of justice and the Minister himself? Everything is basically being routed one way. Does the Minister think that is the best way of doing it? If that is going to be the Minister's style with regard to everything, that is fine. In many other scenarios they would have gone through some form of independent process to cross-check and review everything one step away. Ministers usually like to be one step away but in fairness to the Minister in this case, he is right in there. On having no first point-of-contact body with support and advocacy, it is more the advocacy part of it that I am on about. There will be a lot of emotion in this regard in many cases and there is no standing panel of assessors. The working group also proposed a hierarchical but flexible approach regarding representatives for deceased people. The query relates to the structure that is there for immediate family members, including cohabitants and partners, having a priority. If nobody immediate is willing to put forward the case for somebody, can somebody who is a close friend do it? Is there any process? I ask because there will be circumstances like that, given the nature of what we are discussing. Is there any potential pathway for somebody to act on behalf of somebody who is deceased to honour their wish, if there was a wish, for this to be dealt with? The working group also devoted a dedicated chapter in the form of statements as the mechanism for cases where records no longer exist or are insufficient. It made specific recommendations on how such statements should be sought and assessed but the Bill does not contain an equivalent provision. So, there is no express mechanism for disregarding a conviction where no records can be found. Independent persons may seek information from public bodies but there is no formal statement procedure as a substitute where a person or persons would make a formal statement but where there are no records. There can be reasons why records cannot be found, which the Minister has spoken about himself before in relation to other matters. Is there a process where the Minister could consider that formal statements could constitute a submission to this? He might look at that in the Seanad because I think it is probably the most important point I am going to make here as regards any amendments to this. The review process the Minister has proposed in relation to a 28-day timeline is fine but it is different from what the review said as well. I have a couple of final points. The working group recommended that the State apology of 2018 be reiterated on the launch of this scheme, and that individualised letters of apology from the Minister be provided to successful applicants. That is not in the Bill. Is that something the Minister would consider? It is quite an emotional issue, so I think it would be very nice. It is not a must-do but it would be a nice thing to do, in fairness, given the topic we are talking about. The working group also recommended a fixed time limit for making applications. The Bill imposes a 24-month limitation period but I have read there that the Minister has discretion to extend that, so that is probably okay. They are my honest contributions. There may be a couple of issues there, particularly in relation to where statements could be made in support where there is no documentation available. The Minister might consider that.

I will keep it brief because I do not want to reiterate the points that have already been made. The Minister might be able to answer me: is he still open to making amendments at the Seanad stage in regard to improving some aspects of the Bill?

I am.

He is. I thank the Minister.

I thank the Deputies for their contributions. I will start with Deputy Ó Snodaigh. Like him and other Deputies, I should also commend people who are not Members of the Oireachtas but who really led the campaign to see this injustice righted, in particular, Karl Hayden and Kieran Rose. I commend them and acknowledge the excellent work they did. Deputies Ó Snodaigh and Kelly have both asked why the Bill does not apply to convictions prior to 1922. As I said to Deputy Ó Snodaigh earlier on, I have a very strong view that this State does not have responsibility for convictions that were imposed when Ireland was a colony of the United Kingdom. We were not autonomous in exercising and operating our own criminal justice system. Consequently, it would be dishonest and inappropriate for us to go back and say that we have a responsibility for what happened prior to the declaration of the Irish Republic. Really, 1922 is the year that is picked because that is the time when, in effect and notwithstanding the earlier declaration of the Republic, that Irish people became responsible for their own affairs and we operated our own criminal justice system. That is the reason I made the policy decision, and got the approval of the Government, that we would not be going back into the 18th or 19th centuries and issuing pardons to people where we have no liability for what happened to them. Tone and Emmet were convicted of high treason. Are we going to say that we, in some way, are responsible for their convictions and that consequently we could pardon them? I do not think so. Deputy Ó Snodaigh also mentioned the court documents. The court documents are going to be extremely important. I agree with him in respect of that. Deputy Kelly spoke about the pre-1922 convictions and I have already answered. He spoke about there not being an independent body but it is going through the Department of justice. There will obviously be independent people appointed as reviewers but I think this is the most efficient way to get it operating, acted out and achieving the objective as quickly as possible. I do not want to set up some separate statutory agency that has glossy reports, takes a year to get up and running and has PR. We just want to get this thing done and this is the best mechanism by which to do it. There is an independent process in respect of it. I agree with Deputy Kelly about advocacy being very important. That is why we will be advertising this scheme. I know everyone in this House will co-operate in regard to making people aware of it. Deputy Kelly also asked if I would give consideration to repeating the apology of 2018. I will consider that and listen to what Deputies and people outside have to say. However, I have to say that if you keep repeating an apology, it sometimes lessens the significance of the original apology. I thought that apology in 2018 was very significant and I do not want to take away from it. Deputy Gannon asked if I was open to considering amendments in the Seanad. Of course I am-----

I refer to the query on statements. Will the Minister accept them if there is no record? That is most important.

Yes. It could be the case that there are no records. The scheme is flexible enough to permit statements. Another thing the Deputy mentioned was the friend. There is a very broad definition of a "relative", which is contained in the scheme and in section 42. This is going to apply in respect of a deceased person. There are mechanisms whereby it could be considered. The person may have nominated a person who is not a relative to make the application on their behalf after they are deceased. However, legislation necessarily discriminates. You identify a group of people that you want to try to benefit. There may be hard cases at the edges and I will give consideration to that in advance of the Seanad but the primary purpose of the Bill is, I think, sound in regard to the ability of people who are living to make an application and also for persons who are nominated by them to make an application on their behalf, or the "relative" definition. It is a very broad definition of "relative" that includes grand-nephews, grand-nieces and others involved. That is why it is important to make people aware of this scheme. There are people who may not be aware that they have a great-uncle who was convicted and they could bring the application.

I did not intend to come back in but the Minister said something I profoundly disagree with. On the idea of having the cut-off at 1922 because the State should not be responsible for what happened when it was a colony, the Minister began his contributions earlier on by talking about how he inherited this system from the UK. It is not like we radically transformed the system right afterwards. What we did was maintain it, enforce it and became part of it. The idea might be that we must have a cut-off time because we cannot be responsible for what happened when we were a colony, but we did not deviate from it one iota when we were not. In regard to how we treated people, the Minister said that we inherited the system-----

Judges were appointed by the Crown.

-----but we also maintained the system. A person who was imprisoned in 1921 for what were homosexual offences at the time would still have been in prison in 1922 or potentially in 1923. We have become custodians of our own history. We cannot just draw a line. If the Government is not going to apologise, we can find the means by which we can honour, acknowledge, respect and say that we became complicit because it was not like we changed tack. We had this system right up until 1993, so I think we could find a way of acknowledging it. I appreciate we cannot do something about what happened when were a colony but we can acknowledge and honour the fact that we did not deviate when we were not straight afterwards.

Pursuant to Standing Order 194(3), it is reported to the Dáil that the Long Title has now been amended.

Amendment Nos. 4, 7 and 69 are related and will now be discussed together.

I move amendment No. 4: In page 8, line 9, after “1997,” to insert “the Social Welfare Consolidation Act 2005,”. Amendment No. 69 inserts a new section into the Bill to amend Schedule 5 of the Social Welfare Consolidation Act 2005 in order to add the Courts Service to the Schedule. This will mean that the Courts Service will be a specified body for the purposes of specified provisions of the 2005 Act relating to the personal public service number, PPSN, and thereby enabled to use the PPSN where permitted in accordance with the 2005 Act. Section 20 of the 2020 miscellaneous provisions Act, which provides an enabling basis for the transmission of documents and information by electronic means to and from courts and civil proceedings, envisaged the use of the personal public service number, PPSN, to verify the identity of persons transmitting documents and information by electronic means. This is also envisaged in court rules made pursuant to section 20. However, the 2005 Act was not consequentially amended by the 2020 Act to add the Courts Service to Schedule 5. This amendment addresses that gap and means that the identity of relevant court users can be authenticated via the PPSN as envisaged by the 2020 Act. Amendment No. 4 amends the Long Title consequential on the insertion of the new section. Amendment No. 7 amends section 1(4) of the Bill to provide that the amendment to the 2005 Act, along with the amendment of the Defence Act 1954 in Part 4 of the Bill - introduced on Committee Stage - will be commenced on enactment rather than by ministerial order. I want to flag that I am considering further commencement of the Bill generally and that subject to this consideration, I may introduce amendments in the Seanad to enable other provisions in the Bill to commence on enactment rather than by ministerial order.

On the family law section, I want to raise one issue with the Minister. I was the beneficiary of the criminal legal aid scheme for many years. Concerns have been expressed by people who are on the scheme. As the Minister knows, a flat fee payment is coming in from 1 July and people will only be paid at the very end, when a case finishes in court. If people appear once or if they appear 20 times, they will only be paid at the very end. There are scenarios, particularly for vulnerable people, children, and people who do not have English as a first language, where the cases go on and on, sometimes appearing 12, 15 or 20 times, and those representing them are only paid once. We saw with the family law courts, in Kerry, for example, that there are only three or four solicitors left on the scheme after the introduction of a flat fee. Will the Minister review where people appear more than five or six times, because there could be a scenario where someone represents someone eight, nine or even ten times, then the client changes solicitor, and the new solicitor could get paid for one appearance and the person who has been there eight or nine times is not paid at all? There will be learnings from it. From the family law courts, just learn that the number of people representing has gone down. Just like in family law, where it is important that people receive representation and there is access to justice, it is the same with criminal law cases.

In fairness to Deputy Daly, it would be a bit rich of me if I objected to him raising a matter that is outside the scope of the Bill, since the Bill is so broad in any event.

It must be the only thing that is outside the scope of the Bill.

I hear what Deputy Daly says. The scheme that is being brought in on 1 July is designed to improve efficiencies in the criminal legal aid scheme and the District Court. I fully appreciate the important role played by solicitors under that scheme. I have met the Law Society and Bar Council in respect of it. The system would be greatly improved and there will still be proper payment for solicitors in the very significant work that is done in the District Court. I will take into account what the Deputy said.

On what basis is the Minister making the assumption that the scheme would be improved? Nobody else but the Minister seems to believe it. The Law Society and the Bar Council do not believe it. I have not seen any research that points to it. In fact, the evidence that those in the system would have says that we will have to develop another two-tier criminal system where those who can afford to pay will get better treatment, and because the system is no longer not only profitable but also, realistically, workable, people will be lost from the criminal justice system.

I am conscious that we have many amendments to get through.

Do not guillotine it.

If Deputy Gannon wants to table it as a Topical Issue matter, I am happy to come in. The scheme that operates at present means that people get €260 for the first appearance and €60 for every appearance after that. That incentivises inefficiencies. Research has been completed in the Department that shows that the hearing of criminal cases in the District Court which are governed by the criminal legal aid scheme moves much more slowly than those which do not have the benefit of the criminal legal aid scheme. There are a number of anomalies, as I am sure the Deputy is aware, with certificates being granted for a whole series of offences in respect of the same person or indeed for a whole group of defendants who are effectively accused of the same type of offences and the same issue. I can assure Deputy Gannon that it needs to be reformed, but I am happy to come back to discuss it with him if he wants to table it as a Topical Issue matter.

Amendments Nos. 5, 6, 70 and 71 are all related and may be discussed together.

I move amendment No. 5: In page 8, line 11, to delete “and” and substitute “, the Criminal Justice (Miscellaneous Provisions) Act 2023,”. Amendments Nos. 70 and 71 are small technical amendments to both the Family Courts Act 2024 and the Criminal Justice (Miscellaneous Provisions) Act 2023 that are necessary ahead of the standing up of the first family courts next year. The amendments are to fix a legislative lacuna that will otherwise arise when certain provisions of the Family Courts Act 2024 are commenced. The commencement of section 5 of the 2024 Act will repeal provisions of certain enactments, including sections 40 and 40A of the Civil Liability and Courts Act 2004, which provides for the in camera rule of proceedings under relevant enactments as defined in section 39 of the Act. Included in relevant enactments is section 37 of the Criminal Justice (Miscellaneous Provisions) Act 2023, which provides for the in camera rule to apply to court proceedings under sections 28 to 30 of that Act, which in turn relates to applications for civil orders where there is the fear of violence or where serious alarm or distress is being caused by a person's behaviour. When I commence sections 96 and 97 of the 2024 Act, they will replace the repeal provisions and relevant enactments will be defined in section 95 of the 2024 Act. However, section 37 of the 2023 Act has not been defined as a relevant enactment for the purposes of the 2024 Act. That is why it is therefore necessary to make these technical but important amendments to fix this lacuna. Amendments Nos. 5 and 6 amend the Long Title, consequential on the insertion of the new sections to amend the Criminal Justice (Miscellaneous Provisions) Act and the Family Courts Act 2024.

I move amendment No. 6: In page 8, line 12, after “2023” to insert “and the Family Courts Act 2024”.

I move amendment No. 7: In page 8, line 25, after “Act” to insert “(other than Part 4 and section 44)”.

I move amendment No. 8: In page 8, to delete line 31 and substitute the following: “ “Act of 2007” means the Prisons Act 2007; “Act of 2017” means the Criminal Law (Sexual Offences) Act 2017;”.

I move amendment No. 9: In page 9, between lines 2 and 3, to insert the following: PART 2 AMENDMENT OF POLICING, SECURITY AND COMMUNITY SAFETY ACT 2024 Amendment of Policing, Security and Community Safety Act 2024 4. The Policing, Security and Community Safety Act 2024 is amended by the insertion of the following section after section 98: “Intimidation 98A.A person who attempts in any way to coerce or intimidate a member, or any other person, in connection with the performance by the member of his or her functions as such a member shall be guilty of an offence and shall be liable— (a) on summary conviction, to a class A fine or to imprisonment for a term not exceeding 12 months, or to both, or (b) on conviction on indictment, to a fine not exceeding €30,000 or to imprisonment for a term not exceeding 5 years, or to both.”.”. We spoke about this previously and the Minister said he would look at it, so I gave him time to look at it. I did not see anything coming forward in relation to this. We are trying to ensure that if members of An Garda Síochána or their family members are intimidated in any way in the performance of their duties, this would be an offence. We know very well, given what has happened in the recent past in our jurisdiction, with the way in which gardaí and their family members have been treated, with their houses having been targeted and how, at its national conference, the GRA referred to the manner in which members of An Garda Síochána have received significant intimidation when going about their lives off duty, that their capacity to function and perform as gardaí has been affected. The Minister said that, as part of this miscellaneous Bill, which we have spoken about as so wide-ranging, that he would look at this with regard to this Stage. I am wondering if he has looked at it. I took on board what he said previously, but I resubmitted the amendment on the basis that he said he would look at it.

I did say that and I looked at it. I support the intention behind the legislation to ensure that there is legal recognition of the fact that gardaí deserve to be protected. My problem was that I need to have broader consideration of the legislative proposal in light of other legislation that exists at present. For instance, one of the things that was brought to my attention was that section 19 of the public order Act provides substantive protections for members of An Garda Síochána and other peace officers such as prison officers and members of the fire brigade in the execution of their respective duties. If I am going to introduce this provision, I am going to have to think of what the response will be from those other emergency workers or people who are involved in the prison service or fire brigade. Section 91 of the 1994 Act provides that any person who assaults or threatens to assault a peace officer, including a member of An Garda Síochána, is guilty of an offence. There are very significant penalties there. On summary conviction a fine not exceeding €5,000 or a term of imprisonment of 12 months and on indictment to imprisonment for a term not exceeding 12 years or both or a fine at the discretion of the court. It is an issue I am worried about. I cannot just put it in now because I need to consider the impact on other workers and groups but I will give the Deputy the commitment that I will give further consideration to it. I know he will not be hesitant about bringing this forward again. It is something I am aware of. The mischief is there where some people are becoming increasingly aggressive to An Garda Síochána notwithstanding the fact that we all know the overwhelming majority of Irish people are very supportive of the Garda. I cannot accept the amendment at this Stage. I would need to give it more consideration, I am afraid, but I will not run away from it in the future.

I take the Minister's word for it. I will pursue this issue. I honestly believe we need to reach another bar not only when it comes to gardaí but all uniformed personnel. I am thinking of the intimidation of uniformed personnel in this country and the manner in which they are being treated, including off duty, and the way in which their families and homes are potentially targeted. We have reached a different threshold in relation to this issue in this country and we need to deal with it. There needs to be respect. The people who wear the uniforms obviously need to have respect as well and the great majority do. I am bringing this forward because I believe there is a need for it and the GRA has asked for it. In conjunction with that, in order to protect An Garda Síochána, we also need to bring in legislation for pursuit and offences for pursuit where gardaí are being prosecuted on their own licences on the basis of pursuits. In some cases that is really wrong. On the basis of what the Minister said, that he will bring something forward, I will withdraw the amendment. If he does not I will and I hope he will support it.

Amendment No. 10, in the name of Deputy Kelly, has been deemed out of order.

I move amendment No. 11: In page 9, between lines 2 and 3, to insert the following: “PART 2 AMENDMENT OF NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 Amendment of Non-Fatal Offences against the Person Act 1997 4.The Non-Fatal Offences against the Person Act 1997 is amended by the insertion of the following section: “Obstructing free movement of member of House of Oireachtas 9A.A person who, by violent means or any form of intimidation and without lawful authority, obstructs or impedes the freedom of movement to or from any place of a member of either House of the Oireachtas is guilty of an offence and is liable— (a) on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months or to both, or (b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or to both.”.”. This relates to the Non-Fatal Offences Against the Person Act 1997. It inserts a provision which relates to every one of us in the Dáil as well as Ministers and Senators. It relates to the obstruction of the free movement of Members of Houses of the Oireachtas. This is particularly pertinent because societally everything has changed. There has been numerous cases where people in this House have not been able to go about their business. We all know there are constitutional protections in relation to access to and from Dáil Éireann but there are also cases where Members of this House, including members of the Government in recent times, have been restricted in their movements for a period of time and the manner by which some people dealt with them was far from acceptable and An Garda Síochána may not have been available at the time. This amendment makes it an offence to deliberately, and for an ongoing period, obstruct free movement of Members of the Houses of Oireachtas so that a person who, by violent means or any form of intimidation and without lawful authority, obstructs or impedes the freedom of movement to or from any place of a member of either House of the Oireachtas is guilty of an offence. I can guess the Minister’s response will be that this will also need broader consideration but my party and I believe that we need to look broadly at how we will ensure that people who are elected to these Houses can go about their business as representatives of the people of this country, while respecting protest, without being intimidated or unlawfully dealt with or violently threatened in any way, shape or form.

Unfortunately because of the way the Minister has framed this debate, a 90-minute debate is just not enough. It is not fair because there have already been lots of amendments which Deputies would have wished to speak for. I want to put on the record that I do not support Deputy Kelly’s amendment. Anybody who is preventing others by unlawful means, whether by obstructing them or impeding their freedom of movement, should be held to account before the law. It should not matter whether the person who is being impeded is a Member of the Oireachtas or not. I do not believe that in a republic you provide particular privileges to Members of the Houses. The Constitution has provision which protects unimpeded access to this House in order to fulfil our constitutional duties and I think it would send out the wrong signal if the Oireachtas was to pass legislation protecting Members of the Houses and not others. Returning to my point about time, this debate started 40 minutes ago. We have only 90 minutes to deal with a wide range of areas. I do not know if it is in order but will the Minister propose an amendment to the Order of Business to extend this debate to ensure that particularly the debate we all want to have on counselling notes will have sufficient time?

I ask Deputy Kelly to withdraw this amendment for a number of reasons. We are giving out about things being added onto this Bill. Here is another important issue being added on at this Stage. I do not agree with the amendment. As much of a nuisance as it is going in and out of this Dáil on many an occasion, I do not agree we should curb civil liberties and the right to protest late at night without proper discussion in this Dáil. This would introduce something that would remove any form of intimidation which can be interpreted in lots of ways. We are here in a disgraceful situation - and it is not the Deputy’s fault, it is the Minister’s fault – where there are survivors of sexual and gender-based violence in the Gallery tonight. They have been campaigning for a year and have spoken to the justice committee. I was told by the Taoiseach earlier today that they would have their issues heard. He said extra time had been added on but it added on extra time to other issues but not this issue. There are very important issues under discussion here, and I am not blaming any Deputy for raising them, but we are going to be in a situation that, unless the Minister agrees now to extend this debate, survivors will leave this Chamber with this Bill rammed through without any of their amendments heard, without the Rape Crisis Centre’s amendments heard and lots of other issues. I think that is an absolute shame and it would send a horrifically bad message out about how this Government treats the issue of gender-based violence. I need to jump in now and support the call for the Order of Business to be changed. This is an absolute disgrace. I have never seen anything like it in my years in the Dáil.

The Deputy has made her point. We have to try to speak to the amendment but I hear what she has said.

I am not supportive of Deputy Kelly’s amendment. I do not find it frequently the case that my access or the access of many colleagues coming in and out of the Houses of the Oireachtas is blocked. I do not recall ever being blocked coming in or out. I suppose the purpose of it is to say we do not tolerate intimidation of elected Members of the Oireachtas and I think that is valid. It is important to point out that I am aware that since October 2022, there have been approximately ten convictions of people for intimidation or violence against Members of the Oireachtas or people associated with it. We all know the case involving the Tánaiste, there was a case in respect of the Taoiseach and one in respect of Deputy McDonald. If people start intimidating politicians online the law is there to meet them and if people start to intimidate or harass politicians, or anyone else, physically the law is there and the law is responding to it fairly vigorously. The laws in place are sufficient to ensure that happens.

Does the Deputy wish to press the amendment?

I will save time.

I move amendment No. 12: In page 10, line 38, to delete “Prisons Act 2007” and substitute “Act of 2007”.

Amendments Nos. 13 and 14 are related and will be discussed together.

I move amendment No. 13: In page 14, to delete lines 25 to 40, and in page 15, to delete lines 1 and 2. This amendment seeks to delete lines 25 to 40. Back in April at the height of what are now called the fuel protests, the Minister added fuel to a volatile situation. He essentially called for the Defence Forces to be deployed to assist gardaí in removing fuel protest blockades. It was a serious escalation and provocation at a time when the Government should have been focusing, and all Ministers, particularly the Minister for justice, should have been focusing on de-escalating the protests. We then had a situation a few weeks later. Out of the blue there were amendments brought forward by the Minister for Defence, added to the Minister for justice, to expand the deployment of Defence Forces under aid to civil power. There has been no explanation as to what happened to bring this situation about. When the Minister for Defence was before the justice committee on Committee Stage, she was completely evasive or ignorant. She was certainly unable to answer specific questions on why now and what additionality would be allowed or provided to the Defence Forces that is currently not provided in law. We do not know where the impetus to make these changes came from at this time, and why they are being made in such a rushed manner as part of a miscellaneous Bill, which as we have already discussed, covers a huge range of unrelated matters. We have been clear in Sinn Féin. There are issues, particularly regarding our naval services, contained in these measures that we fully support. We support the concept in principle of aid to civil power. However, we also believe there has to be utmost accountability and transparency. There are serious concerns about what the Government and the justice and Defence Ministers are bringing forward and why they are doing it in the manner they are. The provisions on aid to civil power raise serious questions as to whether the Government, in an underhand way, is trying to amend the law so it can become common practice for the Defence Forces to be used for the policing of protests. We know An Garda Síochána is the primary civilian policing authority, and any Defence Forces support has to remain exceptional, timebound and tightly controlled. Amendment No. 13 proposes the deletion of the provision in the Bill regarding aid to civil power. If those powers are needed, let us deal with them where they should be dealt with as part of a defence Bill where there can be proper scrutiny by the sectoral committee responsible for that and proper analysis of what exactly the Government is proposing and why. The Government should tell the Minister for Defence to bring forward a Bill that deals with that. Amendment No. 14 would require an annual report and review of these sections in the event that the Government refuses to accept amendment No. 13, to allow a bit of democratic scrutiny of something that is crucially important. It deals with the policing of protests and many other areas. There are huge concerns about this provision. It is not so much what is in the provision as why it has been brought forward in the manner it has been.

I was at the committee hearing as well, as was Deputy Carthy. He got a straight answer from the Minister for Defence when she told him that these proposals were put before the Government before any fuel protest. His suggestion that there is an attempt to link them is completely untenable. I will deal promptly with this because, like others, I want to get to the counselling notes amendment, which is amendment No. 17. I am not going to accept amendments Nos. 13 and 14. I think it is appropriate that the legislation should make express provision for the long-standing role of the Defence Forces when they assist the gardaí. I think that aid to civil power role is better off being set out on a statutory basis.

I ask the Minister not to be disingenuous by talking about wanting to get to the counselling notes issue. He has been asked by two Members to ask the Chief Whip to come in to amend the Order of Business to give more time. I have decided against every instinct in my body not to call a vote on this amendment, which I think it is crucially important. The reason I am not going to call a vote is because of the people in the Gallery and their right to hear this House discuss a matter of utmost importance that has come about as a result of them telling us their personal testimonies. I ask the Minister not to be so disingenuous. However, I will be calling a final vote on this Bill, and I will be voting against it. The primary reasons for that vote will be the manner in which this has been brought forward; the Minister's entire attitude towards this debate; and his decision - it was the Minister's decision - to curtail this entire debate. There is a myriad of measures involved here, with new provisions added at the last minute to a 90-minute debate.

I move amendment No. 14: In page 15, between lines 17 and 18, 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.”.”.

Amendments Nos. 15 and 16 are related and will be discussed together.

I move amendment No. 15: In page 17, line 33, to delete “paragraph” where it firstly occurs and substitute “paragraphs”. I will again be brief because I want to get to the next section, which is really important. This section is also important. Amendments Nos. 15 and 16 were proposed by a group of academic researchers and experts in probation services. Most of them gave their time to the joint committee as witnesses. They are experts in community sanctions, judicial attitudes, sentences and use of research and evidence in criminal justice policy. I know they sent these amendments to the Minister. I withdrew them on Committee Stage because he said he would consider bringing something forward himself. I will not argue the rest of the case. I want to hear if the Minister has considered bringing forward similar amendments. If he has not, what is the reason for not doing so?

I considered it, and my concern is that the proposed amendment is seeking to merge and align community service and probation. The Deputy knows they are different statutory regimes. The Probation of Offenders Act deals with a court being able to dispose of a summary offence either by dismissing the charge or by discharging the offender conditionally. Obviously, community service is something different. Having given it consideration, I thought the way the amendment was drafted was merging those two schemes inappropriately. They are distinct. I identify the objective of what the Deputy is doing, and I have no difficulty working with him in the future on proposals to ensure we have schemes in place in respect of community service and community sanctions. The Deputy also knows there are a lot of provisions in this Bill that deal with that, but I cannot accept the amendment.

It is ironic that the Minister is talking about merging Acts. He has merged a whole panoply of issues into one Bill here. I listened to the previous debate, and he wanted to squash everything in. I am sure there was a way to get this done. I will bring something forward on this again in my own time, probably as Private Members' business.

I move amendment No. 16: In page 18, between lines 3 and 4, to insert the following: “(ab) Where a court, by or before which an offender stands convicted, is of opinion that the appropriate sentence in respect of the offence of which the offender is convicted would, but for this Act, be one of imprisonment for a period of 24 months or less, and where, having considered in accordance with subsection (3) whether to make a community service order, decides not to make such an order, the court shall, as an alternative to that sentence, consider whether to make a probation order in respect of the offender and the court may, if satisfied, in relation to the offender, that such an order is appropriate, make a probation order in accordance with this section. (ac) Where a court, having considered in accordance with paragraph (a) whether to make a probation order, decides not to make such an order, it shall give reasons for its decision.”,”.

Amendments Nos. 17 to 20, inclusive, 22 to 26, inclusive, and 65 are related and will be discussed together. Amendments Nos. 18 to 20, exclusive, are physical alternatives to amendment No. 17. Amendments Nos. 19 and 20 are physical alternatives to amendment No. 18. Amendment No. 20 is a physical alternative to amendment No. 19. Amendment No. 65 is consequential on amendment No. 20.

I move amendment No. 17: In page 18, to delete lines 31 to 35, to delete pages 19 to 22, and in page 23, to delete lines 1 to 18 and substitute 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.”.”.

How much time is left?

There are 26 minutes left.

Okay.

We should be spending hours discussing this instead of 26 minutes. I am not going to take up all the time because I have spoken on this at length in the committee. On behalf of the Labour Party, I am putting forward an amendment drafted by Lorcan Staines SC for the Dublin Rape Crisis Centre. It proposes a compromise to deal with this highly sensitive issue. Our justice committee had harrowing, very upsetting and detailed evidence given to us directly. Many of us in that portfolio will also have heard about it personally. There is a pendulum here that we have to deal with. We must consider the constitutionality of what we are trying to achieve. I respect that. However, we must also push it as far as we possibly can. That is what this amendment tries to do. When it comes to the actual detail, it is a question of the independent review panel and what is being proposed in the legislation versus the phrase the Minister has introduced, "in the interests of justice", which moved the pendulum. That is where the debate was the last day. We are back here without any change so I have submitted the amendment again. In spirit, all of us, whether in government or opposition, are of the one mind as to how we need to deal with this. Counselling notes should not be used. It is as simple as that. As legislators, we need to ensure we deal with the issue in a manner that meets constitutional, legal and technical requirements. I am definitely not going to go through it in the same level of detail as I did on Committee Stage, but it is proposed that panel members would create a narrative and that there would be limitations on the information provided in that narrative. That is the format by which we should deal with counselling notes. As a consequence, victims would not be retraumatised and counsellors would be protected. That is what I am trying to achieve. That is what the Dublin Rape Crisis Centre and the Labour Party are trying to achieve. It is why we spent so much time supporting this, speaking on it and voting on it on Committee Stage. I believe there is spiritual support for this within the Minister's own party and within the Government. We believe this extends to the limits of what is achievable constitutionally. It would address the issue of how to deal with counselling notes. It would also ensure that victims are protected. It meets all of the requirements we need to meet within the limitations of what we can do constitutionally. That is why I have pushed the amendment forward again. At this late hour, I ask the Minister to reconsider this and to look at it again because, as I said on Committee Stage, I do not think anybody is going to be happy with the way the Bill is currently drafted by Government. Even if they are willing to walk through and vote for it, I do not think the Minister's own Government colleagues will be happy. As an Opposition Member, I am trying to create a compromise and to ensure we have something we can all support.

It seems a long time ago that the justice committee considered the heads of this criminal and civil law Bill. A lot more heads have been introduced since. One of our criticisms of the heads of the Bill was that there were huge aspects of the Bill we were not able to spend any time on. We did not get to deal with the sex-for-rent provisions and a whole load of other areas at all. We could only deal with written submissions. We discussed this aspect of the Bill quite a lot, however. There was cross-party agreement. The Minister will know that pre-legislative scrutiny reports sometimes get nodded through and that sometimes somebody proposes something without others realising. This was a considered debate and discussion and all members of that committee agreed that there should be a complete and unconditional ban on the use of counselling records in sexual offence trials. We all have a responsibility in this area but, as Chairperson of that committee, I feel a particular responsibility to bring forward and stay true to that position and to outline how that decision was come to. Crucial to reaching that decision was listening to what victims and survivors had to say both through written testimony - there was quite extensive written testimony - and through oral evidence from organisations that have first-hand experience. I will particularly mention Hazel Behan, who addressed the committee and made a profound impact on all of us, leading to the position being agreed. Survivors have strongly asserted and told us that the practice of their counselling notes being used in criminal trials, potentially in defence of the person who attacked them, causes severe psychological harm and heightens suicide risk. That is the evidence we heard. I have not heard a single person disagree with the need to protect the right to a fair trial, but we also have a duty to victims and survivors. We must also keep that duty at the heart of our justice system. That includes not subjecting victims and survivors to degrading treatment. That is what this is. It is degrading treatment if a person discusses their most personal, intimate details with a professional only for that professional's notes, however elaborate or otherwise, to be demanded by the courts, the purveyors of justice in this State, to be used to defend the person who was the reason that person needed counselling in the first place. It is absolute lunacy. Banning the disclosure of counselling notes is about recognising that they are hearsay evidence. It is about rebalancing our justice system so that there is not only a fair trial but a fair justice system for victims and survivors. The amendment I have put forward, No. 18, provides for a full ban on the disclosure of counselling notes, because that is what is needed. We have discussed it at length. We have heard from victims and survivors. We have heard about the trauma of intimate details being shared. I will also speak briefly to amendment No. 24, which seeks to remove the Minister's wording "in the interests of justice". Again, we discussed this in quite a lot of detail on Committee Stage. Above all else, that amendment to the original Bill brought forward by the Minister is the cause of concern. We all know that solicitors and barristers are going to have an absolute field day discussing that wording. We know that term will allow some defence attorneys to secure the counselling notes of some victims. That is why we have brought forward that amendment. Amendment No. 25 is the last resort. It was submitted on the advice of Rape Crisis Ireland. It proposes that, in the event of these types of notes being brought forward, there would be a very clear instruction to jurors that they are hearsay evidence. I hope that would dissuade some defence counsel from seeking them in the first place. However, what is actually needed is that full and unconditional ban. That is what the Oireachtas committee recommended. That is our job. We are tasked with analysing the heads of the Bill and bringing forward recommendations to the Minister. I express my sincere thanks for those people who have told their stories. I have mentioned this before. In order to save others from the trauma that they have gone through, they have told the world their most intimate details. They have gone beyond the counselling room to try to make that a safe place for others. I thank all of those, including some of them who are in the Gallery and many others whom I have had the privilege of meeting. I acknowledge and recognise Deputy Coppinger's effort throughout all of this. I say this to my shame, but the first time that I became aware that this was an issue was when Deputy Coppinger brought a Private Members' Bill before this House. It is not too often on a Thursday late evening debate that you are moved by an issue, but I was moved by an issue. The argument appeared unassailable then and it is still unassailable as far as I am concerned. Even at this late stage, and we have the Stages in the Seanad and all of the rest of it, I implore the Minister to find a way to make all of those efforts worthwhile and find a way to ban a cruel and inhumane practice.

How much time have we got left?

Fifteen minutes.

There are other Deputies who wish to speak.

There are two more Deputies if Deputy Coppinger wishes to go ahead.

The situation is disgraceful that we are in. We are rushing and rushing on very important things. Everybody has already raised, including Deputy Carthy and others, about how important this issue was to the justice committee. This should not be happening. It is disgraceful. I have not seen a Bill being pushed through with so many different things in it in this way at this time. It could have been extended. I have been here for other debates that went on for much longer. I acknowledge the survivors who are in the Gallery tonight, including Hazel Bean, Paula Doyle and Sophie Brady. Hazel and Paula in particular have been campaigning on this. Telling the story does not do justice. They have campaigned in a real way in so many different forums. Paula, for example, was recognised by the Irish Association for Counselling and Psychotherapy. Hazel testified to the justice committee but has campaigned and organised protests, photo stunts, press conferences and so on. Sophie, I hope she does not mind me saying, has not attended therapy because this law exists. That is shocking and disgraceful that a young woman cannot avail of something because of how it might be used against her in trial. People are having to choose between trial or therapy. Unfortunately, with the changes that Minister proposes, that still exists because the chilling effect is still there. I wish to mention people who are not here and many who have been here before and packed out the Gallery: Lisa Marie, another survivor who has done a huge amount of work on this, and in particular, a therapist, Bairbre Kelly, who has paved the way in raising this in the professional bodies. Therapists and psychologists right until today have made a statement that the Minister's changes do not go far enough and he has not dealt with the issue at all. There are three options in front of us tonight but we do not have adequate time to debate them. There is the Minister's option, there is a total ban as advocated in my motion and another Sinn Féin motion, and then there are attempts by pretty much all of us to mitigate the damage that the Minister's proposal is still inflicting on complainants by asking the Minister to do what he promised to do, which is to put in a presumption of non-disclosure written into the law to make it much stronger. All the survivors have asked for that if the Bill is not going to ban it totally. There should be warnings issued by judges. Therapy is not evidence and these notes should have a massive health warning in any trial. I want to deal with some of the issues. The Minister launched the Dublin Rape Crisis Centre's annual report which showed a massive increase in calls. All of the service organisations say the same. They are people who have made contact, but there are so many people who do not report anything, do not talk to anybody and do not pursue a legal case. One of the reasons is because of this type of situation that is hostile, intimidating and retraumatising and where their own personal thoughts can be used against them by the person who did the most horrific crime to them. There is no doubt about it that character references are another major problem. Nearly every survivor has come out from court and named this as being something that should be changed. In Tasmania, which is an Australian state, they have a total ban where the complainant must give their consent. That is another thing that the Minister is removing with his proposal. We all that there was a problem with the waiver, but he is taking away agency completely. He is taking away the right to say "No" to having a complainant's notes being handed over. He is passing it directly over to a judge who, by the way, is not trained in analysing therapy notes, how therapy works - the fluid way that it works - and the way people can potentially say things that could be seized upon. He is also not introducing very high bars. I will run through some of the key things that the proposal does not deal with. The explicit presumption of non-disclosure should have been written in. The Bill does not require the accused to engage with the facts of the case at application stage. It is very loose to have that it might be relevant to an issue in the case. The Minister has put in a real risk of an unfair trial, but then has watered it down with this huge proposal of in the interests of justice, which any decent lawyer is going to argue exists. He continues the violating practice of raw counselling records and notes being handed to teams of lawyers and the accused. The Minister could have put huge barriers in the way. He promised to do that, but it is still not done. The system he is bringing in seems to mirror the Canadian model, a system whereby there is a mandatory hearing for every single case. That is currently being reformed due to the damage that it has been found to have done to survivors. It is worth mentioning, and it is just a statement of fact - I am not going to comment on the trial as I do not want to impinge on the outcome of it - that counselling notes have been used in the Donaldson trial in the North. That just speaks to how these notes are being used all the time. I obviously cannot say too much more about it; I do not want to effect it in any way. How damaging that is for any complainant who might be a victim of child sexual abuse is unbelievable. The Minister says a total ban is impossible. I believe there are other contending rights. Let us look at having a referendum in this country because we cannot continue to have a system that traumatises survivors.

Like everybody else in this House, I would have had loved to have plenty of time to speak to my amendment, which is No. 20. Out of respect to Deputy Gannon, who I presume is going to want to speak on this, I am going to be quite brief and to try to contain myself to two minutes. Amendment No. 20 very much reflects Deputy Kelly's amendment, which was also reflective of my thoughts on counselling notes right from the very outset. It also reflects the Dublin Rape Crisis Centre. It essentially is looking for a halfway house on what the Minister has proposed and what we would like to see. We have accepted that a total ban on counselling notes is not possible. We are asking, urging and pleading with the Minister to please reconsider. Let us have a look at it again. Let us have amendments brought to the Seanad where we will have an expressed presumption of non-disclosure. We cannot continue to put women through this again and again. The standard or bar must be very high. If we do not have this, we are just going to go around in circles again and again and we will be arguing, like lawyers do, on the head of a pin. We will find ways, if it is not express, clear and unambiguous, to work around this so it has to have an express presumption of non-disclosure. If not, all we have is a flood of applications coming into the courts which will clog the system and be costly to the system and ultimately, it will have no regard for the alleged victims. I would also like the Minister to consider what we consider to be the relevant tests for this. Necessity and probative values are important but most importantly, no judge should issue a disclosure order unless he or she believes that there is a real risk of an unfair trial without disclosure. I am rushing, if not galloping, through this because I am very conscious of time. I would like the Minister to take amendment No. 20 in its entirety. It also talks about a timeline after the book of evidence so that these applications happen at the beginning of the process, not nearly towards the end or a day or two before a trial begins. I would like the Minister to look at that. I would also like him to include the District Court when considering the courts that can have the applications.

There is not a lot of time left. This is an issue of such importance that I am going to concede my time, if it is okay with the Minister, so that we can have a vote on this particular issue. That might require the Minister to allow a vote to happen. I think that is fair.

Do I have time to start, Ceann Comhairle?

You do. You have an opportunity to tell them what you want-----

We will not have time to finish, though.

What is the Deputy saying to me? Is he saying that I should not speak for too long to allow for a vote on this?

Yes, just to allow the vote to happen because once-----

Okay. Can I have two minutes?

That is up to you.

The first thing I want to say is that I have listened to people in the House. I acknowledge the presence of survivors in the Gallery and I commend them because the law is being changed because of the advocacy of campaigners. We all agree on one thing, which is that the current situation is unacceptable. The current statutory scheme that operates is unacceptable and needs to be changed. It needs to be changed in order to weigh the balance between a fair trial and the right to privacy more in favour of the right to privacy. I believe that is what I am doing. I cannot ban counselling notes. I simply cannot do that because of the legal advice that I have received. The Labour Party recognises that. People in this House recognise that. In terms of the proposal from the Dublin Rape Crisis Centre, I gave consideration to it and have prepared a response in respect of it. I just want the House to know that its scheme is not that different from what I am operating, except that it would have a panel of barristers deciding it, as opposed to a judge. Finally, on the interests of justice, the reason I left it in is because the advice I received is that counselling notes can be very beneficial to the prosecution of sexual offences and rapes. They corroborate what a complainant is saying and are very beneficial in terms of getting people convicted because the counselling notes confirm what the complainant is saying.

My amendment allows for that.

That is why I have left them in and the advice I have received is that they have been of assistance in achieving convictions. I am conscious of what Deputy Gannon has said and I want to allow a vote.

People can consent to give their notes.

The time permitted for this debate having expired, I am now required to put the following question in accordance with an order of the Dáil of 9 June: "That amendment No. 30, and the amendments set down by the Minister for Justice, Home Affairs and Migration, and not disposed of, including those in respect of which recommittal would, in the normal course, be required, are hereby made to the Bill, Fourth Stage is hereby completed and the Bill is hereby passed."