Alice-Mary Higgins
National University of Ireland · Independent · Ireland
“We are signing up to be customers of liquefied natural gas - potentially fracked gas, potentially coming from a country that is busily fighting against climate action and trying to fast-track our route to destruction. We will be doing that every year in the budget and every day in the terminal.”
“We are not getting solid measures on those safeguards. The other safeguards we have, which are our planning laws and climate laws, are being either fast-tracked or suspended. We are suspending the existing safeguards and are not putting hard safeguards into this Bill, and we are being asked to go on faith.”
“Nonetheless, I have some practical questions. We need a little more on what the emergency is because it is not sufficient to say we will deal with it then. The emergency is the ground on which the Minister of State is asking for the normal planning process and the climate Act to be suspended. We need to know what the emergency is.”
“It should happen only after all relevant market-based measures have been implemented. Those market measures should include the demand-reduction strategies that are eligible under N-1, including demand reduction by large energy users, and should have been implemented, exhausted and proven insufficient.”
“Sure there is detail in it but the key issue is that what he is asking of the Oireachtas, which is to agree to it being built, is on the argument of there being an emergency. It should be very clear what the emergency is. I mentioned previously that the committee said our N-1 obligations could be met through demand management.”
“It comes from real places with real communities that are immediately and terribly impacted by fracking, as well as having an impact on the atmosphere that surrounds our beautiful planet, which we are destroying. As the Minister of State said, it impacts not just on business but on the liveability of large portions of this planet.”
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“I signal that I may come back on Report Stage to the question of how offences are added to the Schedule. It is not around the offences and the Schedule, and I should also signal that the question of the threat to commit is one issue that may require further clarification. The two issues here are the Schedule of offences and then whether they are just offences that can be prosecuted as offences or terrorist offences. That is where the test of the three intentions is applied. Is it the case that we have to say there is an intention to intimidate a population, an intention to force a government to take an action or not take an action, and an intention to destabilise the economic and social structures? Those are the intentions that are leading to these things being interpreted as terroristic.”
“For example, people who have sought to disable a weapon or missile are committing criminal damage and they may be prosecuted for the offence of criminal damage, but the question is whether that should be interpreted as terrorism, which comes with a far greater set of penalties and where the person loses a number of the other protections. We are looking at situations that might ordinarily attract a penalty of one or two years suddenly attracting a penalty of up to ten years. It is about the attribution of terrorist intent, not the Schedule setting out the offences. I am a little concerned about new offences and I would like clarity around the process. I note the offences in terms of data. It is not clear to me exactly what is meant by the data and information systems offence.”
“There has been a quite a strong misrepresentation of my position, which I was actually quite clear on when I spoke. I would like that to be clarified. I did not suggest that people should be free to do whatever they want for these reasons. I was very clear that these are criminal offences, they should be prosecuted as criminal offences and persons who engage in them do so in the knowledge that they are committing a criminal offence that comes with the penalties that apply. I said that on about four occasions in my contribution. It is not the case that this is a get-out card where everything goes. The question is whether this activity should be interpreted as terrorism.”
“You can go ahead and use actual evidence of a person engaging in or promoting or inciting terrorist activity rather than saying this person was also on strike or took part in a union protest or did other things, and this builds the case of them having an intent to destabilise. That is why I am concerned about how that provision could be abused. The safer approach would be to remove the phrase "of itself".”
“I do not believe that is how the provision would then read. The Bill would state that these are not terrorist offences. While terrorist offences could still be looked at, it would mean that those elements and activities - participation in a strike, protest or advocacy - could not be used as evidence of terrorist activity. Now, the Bill states such activity "of itself" cannot be used, which means it could be part of evidence. It just states they cannot be used. It does not say that a person who does these things is immune from prosecution under the terrorist activities Act. That is not what it says.”
“In such circumstances, we will not be privy to how those decisions are being weighed up by the Attorney General and the extent to which political pressure or influence may be being exercised in that weighing up by the Attorney General in respect of his advice to Cabinet because he is giving advice to Government, not us. That is a bit of an opaque solution to a concern, which, as the Minister said, has been legitimately flagged the whole way through this process. As such, I wonder about the "in defence" piece as an approach. I would also like clarification from the Minister on the issue of criminal damage. It is not the case, as the Minister described, that if we removed the words "of itself", somebody would say they were engaged in protest and, therefore, that they could not be prosecuted.”
“The Attorney General is only an adviser to Government. Attorneys General may be under a particular Government and under all kind of pressures, but they are effectively responsive to Government. There is, therefore, a danger of there being a lack of transparency in relation to those issues, for example, if there is a situation where there is significant pressure from the United States in relation to a matter or action or set of actions or an organisation or entities the United States wishes to see prosecuted in the terrorism frame.”
“The Minister said we have these sets of intents, but the intents he is going back to are all in relation to a terrorist offence. I am still not clear on the issue of actions being taken. The Minister said he did not want to make it a defence. I had considered that approach. I was trying to avoid doubt in the defence and, similarly, the Minister described how he had gone back and forth looking at different approaches to how we ensure the effect. I accept his bona fides that it is not his intention that this be used in relation to persons who are acting against repressive regimes or, indeed, illegal occupation, but I see in the Bill the potential for it to be used in such a way. The thin layer we have of protection is the Attorney General. The Attorney General's advice is not available to Members of the Oireachtas.”
“It is a form of protest that comes with penalties and people often do not accept those penalties. Now, however, the penalty is being massively escalated. I am, therefore, concerned. I would like clarification on the criminal damage issue and how that is going to pan out. With respect to the phrase "in itself", it should be removed. While it may have been in the previous legislation, we are in a climate now where we have seen extremely intense weaponisation of anti-terrorism laws in a number of states, including the UK and US as we have recorded, but it is a measure that has been used in many cases. I still do not know the exact position as regards how we relate to the question of something that is an offence here that is an offence in another country.”
“Let us look back to the suffragettes. The suffragettes engaged in direct action protest in an attempt to compel the introduction of the right to vote. We commemorated them all a few years ago and marked that period of time. Is it the case that such activities by the suffragettes can be designated as terrorist activities and then attract penalties? I am not resisting the view that people would have penalties attached where they have damaged property and so forth, but these much more severe penalties are attached to when something is designated as a terrorist activity. In terms of climate action, for example, this is an area where we have seen the proscribing of climate activity by groups. There has been a very strong push in the United States and elsewhere to criminalise those who are engaging in direct action in relation to the climate.”
“While the scenario the Minister gave is the intention to set off a bomb, which comes into the different question of there being a whole other set of offences there in terms of intent to endanger life and so forth, the scenarios are things like criminal damage to property. Criminal damage to property is the kind of thing such as vandalism, which technically comes under criminal damage to property. Of course, it is our duty in all our laws to protect life and so forth where there is a danger to a population or an intention to cause harm in that sense. However, criminal damage to property is an offence under this Bill where the criminal damage is attached to an attempt to unduly compel "a government or an international organisation to perform or abstain from performing an act". I am not fully assured as to what that actually means.”
“The Bill deletes the protection of the individual's right to protest and potentially conflates their actions with definitions of terrorism. That is a concern, and I highlighted in one of my earlier comments the comments from Amnesty International where it highlighted that a person who performs an action for reasons of conscience or for reasons of compliance with international law can face much higher penalties than a person who does so with a purely malicious intent. That seems to be an anomaly and a danger within the Bill.”
“In fact, somebody who is committing criminal damage in an act, for example, of direct action protest, rather than simply being prosecuted under direct action, may see the far more severe sentencing that is available under the terrorist legislation of, for example, up to ten years in prison for events or for an action, which would not normally attach to those things, because the person does so while expressing a view in relation to Government policy or action. Again, what does this mean in terms of people who are, for example, protesting the use of our airports for violation of international law? Will that sort of protest now come under a new rubric or be under a new threat of this far more severe set of penalties?”
“When does advocating that a Government to take action on breaches of international law or illegal occupation cross the line into unduly compelling? Do we stray into a space, as I have said before, where direct action or protest, which may involve an offence in terms of, for example, criminal damage, rather than being prosecuted as criminal damage, is now going to be prosecuted as a terrorist offence because it has a policy intent?”
“For example, when actions are taken which have an economic impact in seeking to block or end economic activities that are in breach of international law, then that should not be construed as destabilising the economic or other structures of a state. If those economic structures are built on a breach of international law and an action, protest or intention is intended to stop them, that should not be regarded as destabilisation. The fact they have an economic structure which is premised on breaches of international law should be regarded as the destabilising factor. I spoke on Second Stage about my concern around the language of unduly compelling a government to act a certain way. I am concerned that that is a very wide framing. What constitutes "unduly"?”
“This refers to instances where actions are taken to ensure compliance with international law such as, for example, the blocking of the delivery of arms which have the known intent of being exercised in war crimes. In such circumstances, when compliance with international law is the intent then that should not be construed as part of a definition of terrorist intent. Amendment No. 24 seeks to ensure that it should not be construed that a person is seeking to destabilise the fundamental structures of the state where that state is in breach of international law and thus destabilised through those violations already.”
“I am concerned that, for example, the opposition of Palestinians to the occupation of the West Bank may include a message that Israeli settlers should not be in the West Bank or East Jerusalem, and that could be construed as intimidating the population of settlers within an occupied territory. I have asked the Minister on a previous occasion about actions that take place in an occupied territory. I seek clarity on how that would relate to an occupied territory. Amendment No. 23 seeks to ensure that it shall not be considered as unduly compelling a government or international body to perform, abstain or abstain from performing an action if that action is necessary to comply with international law.”
“The amendment seeks to ensure that criticism of a state for breaching international law does not constitute grounds for inferring that a person is trying to seriously intimidate a population, unduly compel a government or international organisation or seriously destabilise the fundamental structures of a state. It is important that we are crystal clear that criticisms in respect of breaches of international law should never constitute grounds for inferring a terrorist intent. Amendment No. 22 seeks to ensure that the opposition to illegal occupation does not constitute grounds for inferring that a person is trying to seriously intimidate a population. I am considering, for example, the actions of persons who are subject to illegal occupation.”
“Engagement in protest, advocacy, dissent, strikes, lockouts or industrial actions should not constitute grounds. The term "of itself" implies that such actions may be considered as part of constituting grounds for inferring that a person is doing an act with a terrorist intent. The removal of those legitimate activities should be explicit and not partial or coming with a caveat. Amendment No. 21 refers to the criticism of a state for breaching international law. I indicate that I may come back to this on Report Stage. International organisations can also breach international law.”
“20 seeks to strengthen the provisions that protect people involved in protest against prosecution for terrorist offences under section 6(5) of the 2005 Act by removing the words "of itself" so that the section would read that engagement in protest, advocacy or dissent, or in any strike, lockout or other industrial action, shall not constitute grounds for inferring that the person is doing an act with the intention of seriously intimidating a population and so on, that is, the three grounds for intent set out in the Bill, namely, intimidation of the population, unduly compelling a government or international organisation to perform or abstain from performing an act or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a state or an international organisation.”
“I move amendment No. 20: In page 10, line 15, to delete “of itself”. Amendments Nos. 20 to 24, inclusive, all relate to my concerns about how the Bill can impact the ability of people to freely protest. Amendment No.”
“I move amendment No. 19: In page 9, between lines 16 and 17, to insert the following: “(i) the insertion, in subparagraph (ii) of paragraph (a), after “terrorist-linked activity”, to insert “, other than activity described in section 4A(a)(ii)”,”.”
“I move amendment No. 14: In page 6, between lines 3 and 4, to insert the following: "(c) for avoidance of doubt, the distribution or publication of materials in relation to historic or contemporary resistance to colonial occupation or exploitation, shall not be construed as glorification for the purposes of this section.".".”
“I move amendment No. 13: In page 6, between lines 3 and 4, to insert the following: "(c) for the avoidance of doubt, non-violent expressions of solidarity or support for actions taken in relation to matters of international law shall not be construed as glorification for the purposes of this section.".".”
“These are not very loose hypotheticals; they relate to the overinterpretation of these kinds of laws that we have seen in the UK, the US and also now, to a degree, in Germany. Therefore, it is extremely relevant to consider how this will pan out.”
“Whose definition of terrorist activity applies? The Bill refers to where the two acts are comparable, implying that if the act took place in Ireland, it would be an offence in another member state. If, for example, Germany decided to proscribe a number of Palestinian support organisations as terrorist organisations, what would occur? If Germany has a similar law on its books, because it would be derived from the same directive, does Ireland have to treat as an offence an act that would be an offence if it were carried out in Germany, even though those to whom the law would apply would be different in different places? That is a general question. Very specifically, what is the position where an occupied territory is involved? I want to know how these things link up. Positive intent is one thing, but I am wondering how this pans out.”
“If an action has taken place in an occupied territory against a state, which may be an occupying state, can we have absolute clarity that such actions would not be considered terrorist actions? I seek a direct answer in that regard. Even though the language in our laws and the act that took place in the other state align, the interpretation may differ. We are talking about a list of actions that become terrorist almost by definition of intent under our law. In other countries, such actions may become terrorist because they are taken in support of a proscribed organisation. In some states, those proscribed organisations may include environmental activism and activism in respect of the Genocide Convention and protection of same. In some countries, they may include activists in favour of gender equality.”
“The problem, which the Minister has still not answered, is with where the interpretations overlap. It is one thing to outline how the legislation is envisaged to be used, but the point is that the text continues to describe how it relates to incitement. The question as to actions that are offences will come up again. This is a direct question because I am genuinely not clear on this. I am absolutely open in this regard. As I read it, the legislation relates to not just actions in this State, but those in other states as well. For example, it relates to actions in other states that would, were they to take place in this State, be considered an offence. However, that is focusing solely on the action. Criminal damage is one such example.”
“If the Minister will not accept these amendments, I seek assurances as to how those kinds of circumstances will not arise because, on the face of it, they could. The caveats currently within the Bill are not enough to secure against them.”
“It is looking to normalise relations in that context. In Afghanistan, a huge section of the population is under gender apartheid and forbidden from basic participation. If women take direct action in respect of their rights under international law, and if the state of Afghanistan construes such action to be a terrorist activity, would those expressing support for it be glorifying, celebrating or praising terrorism? Again, the legislation only requires that the language could give rise to further actions. There does not have to be any evidence that it has done so. These are the vulnerabilities we seek to address. That is what I am trying to come at with a couple of these amendments.”
“If a person expresses support for people who are in an illegally occupied territory - it may be the occupied Palestinian territories or other illegally occupied territories, such as occupied Crimea, for example - and taking direct action, will those expressions of support, which may include criminal damage, constitute glorification? The historic example of Nelson Mandela has been used a number of times in today’s debate. The South African state regarded him as a terrorist and his actions as terroristic. As he was construed as such, would persons expressing support for his actions and encouraging the resistance to apartheid in that context be supporting terroristic activity and encouraging its further incidence? We do not need to use historic examples; we can look to contemporary Afghanistan. The European Union recently met the Taliban.”
“Those who might express support or solidarity with them, or give language that is seen to be encouraging, could indirectly be considered as inciting further such action. I will provide a couple of examples in this regard. If someone has described themselves as anti-Zionist or if persons within an occupied Palestinian territory are taking direct action in relation to the taking of a home, land and so forth, does that mean that their actions may, according to the Israeli state, be considered as ones that “destabilise or destroy the fundamental political, constitutional or social structures of a [state]”? What about a context where someone is expressing support with persons who are taking actions in that regard? This is the question.”
“In amendment No. 13, I suggest the insertion of, “For the avoidance of doubt, non-violent expressions of solidarity or support for actions taken in relation to matters of international law shall not be construed as glorification for the purposes of this section.” Amendment No. 14 would insert, “for avoidance of doubt, the distribution or publication of materials in relation to historic or contemporary resistance to colonial occupation or exploitation, shall not be construed as glorification for the purposes of this section.” The concern is with what may be construed. I use the example of people in an occupied territory who are taking action in respect of that, or people who find themselves in situations where their rights are being violated under international law and are taking direct action in respect of such violations.”
“Amendment No. 19 is more technical but it suggests that this should not be a ground for a person in terms of the offences.”
“misconstrue activists' conscientious motivation for activism and instead consider them an aggravating factor to justify the use of terrorism sentencing powers. For example, if somebody goes and smashes something or throws paint on a military system, they will get a conviction for criminal damage, which is only small. Somebody who does it, motivated by international law, will get a far harsher sentence and can spend up to ten years in prison. The person who just does the criminal damage is getting one sentence but the person who does the criminal damage for the purpose of ensuring a state's compliance with international law will get a higher sentence. Acting with conscience gets construed as acting for a cause and that cause gets translated as acting for the purposes of terrorism and with the motivation of bringing change of some kind.”
“We can look at the recent prosecutions in the UK but also in Germany, which is transposing the same directive. Are they going to transpose it similarly, in terms of how the judicial systems in those countries are treating protest actions? We have the case of the Filton 4 in England and the Ulm 5 in Germany. In both instances, the cases against the activists link accusations of damage to property with terrorist activity. These alleged actions include damage to weapons factories that are providing weapons which are being used to commit genocide in flagrant and open violation of international law. I will come back on some of these. Regarding conscientious motivation for actions, this is what Amnesty has said about the UK context: ... cases of criminal damage committed through direct action ...”
“That has obviously been construed as glorifying violence, even though it refers to events of the 1700s. Where is the bar in terms of colonialism and occupation and when the actions are being taken in relation to illegally occupied territory? I would like that to be not construed as "glorification", for the purposes of the section and clarity, where it is "in relation to historic or contemporary resistance to colonial occupation or exploitation". Amendment No. 19 seeks to insert after "terrorist-linked activity" the following, "other than activity described in section 4A(a)(ii)". I think I have everything covered here. We need to bear in mind that the sentences we are talking about here range from 12 months to up to ten years in prison. This is not a fine or a slap on the wrist. It can be up to ten years in prison for these offences.”
“We have a large number of our European colleagues who still have colonies around the world, many of whom are taking a very active interest in the extraction of resources and minerals from those colonies in a new period of time. Of course, we have the colonial occupation of Gaza, the West Bank, East Jerusalem and Crimea. Colonial occupation is still a very current piece. Historically, there are also a lot of people invoking in some cases, for example, in the Caribbean, where many countries have become republics, historic points of resistance as a catalyst to new political resistance. I am thinking of the example of Haiti whereby they were not allowed to have their football strip because it contained a picture of the battle to overthrow slavery.”
“If somebody says they are glad that an action was taken to ensure a breach of international law did not take place, they should not be construed as glorifying if the expression of solidarity and support they are making is in relation to support for international law. Amendment No. 14, which again is something that was raised by Senator Murphy, reads “for avoidance of doubt, the distribution or publication of materials in relation to historic or contemporary resistance to colonial occupation or exploitation, shall not be construed as glorification for the purposes of this section”. Colonialism is not solely historic. We still have situations, for example, the colonial exploitation of Western Sahara by Morocco. We have the issue of colonial occupation in relation to West Papua by Indonesia.”
“We have to make sure our laws are full of safeguards if we want that "we are so nice" label still attached to us. I have a lot of specifics on amendment Nos. 13, 14 and 15. One is, again, another safeguard, which if we put these in, it will be better because we will feel more reassured, which reads "for the avoidance of doubt, non-violent expressions of solidarity or support for actions that are taken in relation to matters of international law [I mentioned climate, which does quite come under that, and perhaps, it is something I can come back to, but regarding international law, for example, the Genocide Convention] shall not be construed as glorification for the purposes of this section". If the Minister of State is telling us that it is not needed, let us put it in for the avoidance of doubt.”
“10 seeks to delete the glorification line. Amendment No. 11 seeks to specifically remove that language around "praise or celebration" because it is so amorphous. It is the kind of thing that we can see being used against the most vulnerable or those who see themselves at the margins of society or young people who give an expression that can be construed as praise. I worry about who that will get used against. Will Elon Musk be getting prosecuted under this? I would put money on it that he will not. Will some 20-year-old who says, "I am glad that they took that climate action because I am terrified of climate change", get prosecuted? Maybe. That is what is happening in the UK and US. It is not a "it would never happen here" matter. We do not get to put in up-to-date modern authoritarian laws and then say "But we are so nice".”
“We have seen the silencing of difference of opinion with governments internationally in relation not just to Gaza but to others who have taken stands on issues on human rights and other issues. We have seen lots of governments that have taken actions in relation to that. Is it going to end up being an effective silencing of opposition? In a future government in Ireland, if Ireland gets rid of the triple lock, as has been proposed by some in government, and we find ourselves in wars and the population says that it does not love being part of an illegal war, for example, will those who comment in relation to that find themselves in a situation where they are suddenly being pulled up under this piece as well? Again, that is what has been the experience of others, such as those in the UK. Amendment No.”
“If people say that who had nothing to do with the activity - they had not done it, they are just people expressing their feeling and response to something that has been designated as a terrorist activity by praising it, are they made vulnerable now? Are they vulnerable as long a judge decides to state that you saying you are glad they did that could conceivably encourage others to do the same kind of thing? That is the reasonable apprehension that the commission of a terrorist activity could thereby result. You do not have to prove it is going to result; there is no direct or explicit piece that is in the other amendments. It is simply the fact that you have praised something and somebody says he or she believes an activity could conceivably happen out of it. That is the really muddy bit.”
“The incitement in the proposed new section 4A(a)(i) is not a requirement at the moment for something to be prosecuted as public provocation. It can be just solely on the basis of the glorification. I have suggested removing the language in relation to glorification and if that is not possible, due to the EU directives and others, to at least remove the incredibly vague language of "including by praise or celebration". I still have that question. What if you say, "I am glad they stopped those bombs" or "I am glad they destroyed those bombs and that they are not going to fall on children in Gaza"?”
“On the incitement piece, if the incitement threshold is left in, that is, the phrase "inciting, or that could reasonably be construed as inciting," and then if the reasonable test is added, there are concerns but they are not as strong because it is about inciting a particular kind of action, plus the reasonable test that it is likely to have an effect. The amendment proposes to remove the much woollier and far more worrying phrase, "that glorifies (including by praise or celebration) a terrorist activity". I emphasise for the public and everybody to understand that right now it is "glorifies" in itself alongside that clause that "reasonable apprehension that the commission of a terrorist activity could thereby result". That is what public provocation counts as right now.”
“The reasonable apprehension is whether one can imagine a scenario whereby somebody could do a terrorist activity arising from the distribution or publication of materials. That is the big safeguard being put in place and it is pretty woolly - "could thereby result". The other things the Minister of State mentioned are not "and" but are "or", which means it could be any one of these. It is not that it has to be inciting and glorifying and it has to be the intent. It could be inciting or it could be just glorifying. That is the piece I am concerned about. My amendment No. 10 acknowledges that even though we already have incitement to hatred legislation and so forth, we could look to mirror the incitement to hatred legislation, which is sometimes underused to a degree.”
“If we create a toolbox that can be used in an authoritarian manner, we have a responsibility in terms of how it may be used. The question of who we think will use it and our presumption of best intent are not really our business as legislators. Our business is to consider what tools and safeguards we can put into play. With respect to the Minister of State, there is still a huge amount in the definitions that is open to dangerous and loose interpretation. I note explicitly the safeguard the Minister of State mentioned, namely, "the reasonable apprehension that the commission of a terrorist activity could thereby result". It is not that it will result or is likely to result; it is that it could result.”
“The Minister of State suggested that the Government had looked to introduce a few safeguards into the Bill. What she is seeing in these amendments are good-faith suggestions for further safeguards we believe are needed in terms of the risks associated with the language in the Bill. In responding to this group of amendments, she might also provide clarity on the issues I raised regarding offences committed inside versus outside the State and the question of a comparator Act. If there is a similar law in Germany to the law here, for instance, but a different construction of what constitutes terrorists and terrorist organisations, it is not clear to me where the law would stand on that. I ask the Minister of State to include a response on that point. The previous speaker made the point very well that we are legislating for the future.”
“Again, I am concerned about the procedures for how new offences are being added to the list in Part 1 of Schedule 2. I think there has to be special scrutiny and proper transparency in regard to those offences and clarity as to how they will be added. That is my amendment No. 7. Have we come to amendments Nos. 9 to 14, inclusive, yet?”
“I have further concerns on this that I will return to on Report Stage relating to how offences are added to the list of offences that may be considered a terrorist activity in Part 1 of Schedule 2. The Bill allows for the adding of an offence to the Schedule in section 12 of this Bill. An offence under section 3 or 4 of the Criminal Justice (Offences Relating to Information Systems) Act 2017 is going to be added as an offence that may be considered terrorist activity. This relates to persons who damage, interrupt or render inaccessible the functioning of an information system without lawful authority. The definition of an information system is extremely wide and, again, I am concerned about how that is going to be applied under the Bill. I am concerned about what that is actually going to mean in practice and how that may be applied.”