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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“The executive says they are very intimidated or a garda says they believe this person may be intimidated by the fact there are persons outside who are shouting in protest and who could intimidate another person. Any other person could include a person who is legitimately being protested at, which is not intimidation of them because that would be covered under the proposed section 8C(b)(i). They are there not with the intent to intimidate but simply in a manner that a person could find intimidating and that is a very different thing. The Minister talked about the balancing of the powers and verbally recognised the things he is balancing but the section as introduced does not succeed in balancing those concerns. Again, it points to how it is a pity it is being introduced at this late Stage.”
“That would not even have required the kind of explicit listing I was suggesting of categories which should be recognised. Again, the bar is not the question of the intent to intimidate. If the Ku Klux Klan are standing outside your house or a bunch of people wearing masks are shouting "Immigrants out", or any other message, they are intimidating and they may be wearing masks with intent to intimidate but the bar here is "in a manner that is likely to intimidate another person". That is a bar that crosses the line to diminish privacy and the proper right to protest. Let us say there is an executive in a company and there is a big protest outside and everybody is shouting about, say, supplying minerals that allow the production of bombs. We know those example in Ireland right now.”
“-----but that there is a particular vulnerability and there are persons for whom the application of this law will have a more negative impact. I wish to address two factual things. If we had had this properly teased out maybe we could have resolved this. There may be forms of words that would have addressed it but as the Minister said there are not carve-outs or defences and that language Senator McDowell used of a "reasonable excuse" does not apply to the wearing of a face covering. The "reasonable excuse" applies to acting in a manner that gives rise to "reasonable apprehension". If there had been "reasonable excuse" clauses added in respect of the facial covering persons would be able to say they had a reasonable excuse for the face covering.”
“It is not that you are allowed wear a mask because you have a health condition or are from a religious group. It is that you are allowed to wear a mask and be part of a protest-----”
“There are references to demographic challenges and all the rest. These give a sense of vindication to those who seek to intimidate portions of the population. We should also look to some of the facts we see on the ground, namely, that there is racial profiling and unequal treatment on racial and ethnic bases in policing internationally that have been shown again and again. We went through them when we debated the facial recognition technologies that are going to be introduced and which have been shown to have far lower accuracy rates in these cases. There are issues with this. It is not defending the potential perpetrator, which almost presumes guilt. It is looking to that right to privacy. The Minister will be aware the Irish Human Rights and Equality Commission raised concerns about the rights to privacy and protest, as has the ICCL.”
“In terms of acting in relation to mob intimidation, I do think there could be much stronger measures. I think use should have been made of the public order Act when there was intimidation of asylum seekers in our city centre, in Sandwith Street and in Lower Mount Street. I look at the long-running attitude of seeing how things will play out in response to the intimidation of asylum-seekers. For far too long there was tolerance of extreme intimidation and threat. There was accommodation of the checking of buses by persons who were effectively vigilantes. That is not okay. We could be doing an awful lot more. We do not need to just look to Belfast. We also need to be much more careful about the dog whistles. I am not going to go into that now but I have heard them come through in subtle ways.”
“It does not even recognise them as a defence, if a person was later to be prosecuted for an offence as a result of failing to remove a facial covering when told to do so by a garda and the person might have not done it for those very good reasons. That is not even recognised as a defence in this piece. There is simply no protection for those vulnerable groups under the law being introduced by the Minister. There is also a huge new vulnerability which, again, is compounded by the unknown implications of facial recognition technologies and their more widespread use under other legislation put forward by the Minister.”
“It is the fact that the person being there may provoke others to take violent or aggressive action, and that is considered as a risk to the public peace. There is a huge set of circumstances here. My point is that the Minister already has the public order Act. He already has tools. There are already tools which can and should be used appropriately in respect of situations of intimidating behaviour. This is something extra. It comes alongside a whole new set of provisions in respect of the use of facial recognition technologies but without any protective measures, in this law put forward, in respect of religious observance, a medical condition or, indeed, personal safety. The Minister mentioned carve-outs and said, "I recognise this and I recognise that." The law does not recognise them.”
“The amendment states: "without lawful authority or reasonable excuse, acting in a manner which consists of loitering in a public place in circumstances, which may include the company of other persons, that give rise to a reasonable apprehension for the safety of persons or the safety of property or for the maintenance of public peace". Again, if a person is participating, we have seen where far-right protests, directly designed to intimidate, have often not been in fact responded to. If a person is in one of the counter-protests, however, and protesting in respect of the rights of migrants and refugees, or is wearing a face covering for religious reasons, he or might be asked to remove the mask. The reference to it being for the reasons of public peace, does not mean that individual in question is the active disturber of the public peace.”
“What we know about how these kinds of things get interpreted, and have been interpreted in other countries, is that often there is racial or religious profiling. We have all seen the videos where somebody on a plane says there is a Muslim on the plane and he or she does not feel safe. We have seen situations where people have been asked to leave because another person finds them unnerving or potentially intimidating. Again, the bar now is not intimidation. The bar that the Minister is introducing is an opinion that the face covering is likely to intimidate another person. The Minister will say that, yes, it is where a person engages in such activities. Let us consider the activities.”
“Maybe they are shouting or blocking a public road or something and, rather than prosecuting, if a garda believes they are intimidating, they can now be asked to remove their mask or facial covering because a garda decides that the fact the person is wearing that covering could intimidate another person. That means that some persons, including medically vulnerable persons, persons who belong to a religious minority and persons who may have particular exposures, could suddenly find themselves with an offence against them. I ask the Minster to bear in mind that these are not people who are engaging in intimidation. If they were engaging in intimidation, the Garda already has an offence under which to prosecute them, namely, for engaging in intimidating behaviour. This relates to being likely to intimidate a person.”
“No. There is no protection in this in respect of circumstances where a mask is worn on medical grounds or for religious purposes. That is not in the Bill. The Minister is just telling us it will not get used for that. There is no carve-out for those circumstances. There is no carve-out for those who may be protesting. I have been to protests. I have seen protests where persons are very concerned about the safety of their families. I refer to those who were protesting, for example, about the situation in Afghanistan. They are very keen not to be recognised because they are conscious of the vulnerability of their family members who may still be in that country but they want to convey a message. Perhaps they send that message loudly.”
“But can I? I wore this for two years and took part in protests. If a garda decides that I am wearing a face mask in a manner that is likely to intimidate another person, I can be required to remove it. That is not a power that previously existed. What if a person who is medically compromised wears his or her mask while on a protest? People who were medically compromised participated in the protests and protested about their rights and concerns in respect of Covid and took suitable care. What if somebody, as part of his or her religious belief, wears a mask?”
“This comes in the context of wide powers in respect of facial recognition being introduced for biometric analysis, which we have discussed, and separate from the biometric identification which will only be in the case of the named individuals, of course. That is not, of course, what the EU directive says, but what the Minister has decided to narrow biometric identification to. In terms of biometric analysis, there will be the use, tracking and identification of individuals as the same individual from camera to camera. That is what we have discussed at length previously. It is happening in that context and there is not a proper recognition. I am holding aloft one of my masks. I wore this mask for two years and took part in protests.”
“To be very clear, gardaí already have significant powers under the Criminal Justice (Public Order) Act 1994 to address threatening, intimidating or violent behaviour, as they should. I know there have been instances where intimidating behaviour should have been dealt with earlier in some cases. I can point to examples. They already have powers. If intimidation is taking place, if there is intimidating or violent behaviour or there are threats, the powers are already there for prosecution under the Criminal Justice (Public Order) Act. What has been added here is a new offence of not removing a face mask when a garda tells a person to remove it because they believe it could intimidate another person. It does not even have to intimidate a person; it just has to be considered likely to intimidate a person. That is the standard that is there.”
“The indictable offences issue is constructive. It was good to see the accepting of amendments from the Opposition in that regard. I acknowledge that the Minister has engaged constructively with the Opposition in relation to proposals in both Houses in the past. However, it is not the case that these new proposals in respect of face coverings are only in situations where face coverings are worn for the purpose of intimidation. That is not what the legislation states. The legislation states "with intent to intimidate another person", or "in a manner that is likely to intimidate another person". There is no proof of intent in relation to this. There is simply the interpretation that a member of An Garda Síochána may make that a person wearing a face covering is something that could intimidate a person. That is the standard.”
“I will conclude by noting that it is interesting the Minister is prioritising the use of this new measure for prosecutions for simple possession. It does not speak well to the health-led approach. I have been clear that I will be opposing the amendment.”
“The Minister has not answered my question. Why is this being done solely in relation to section 3? I ask him to confirm that it is the case currently that there can be and are prosecutions under section 3 using the existing system with Forensic Science Ireland. The Minister may confirm that a mechanism for prosecution already exists.”
“The point is the Minister is introducing a new form of evidence that applies only to one form of drug offence and it happens to be the form of drug offence where there are concerns that its overuse has made it more difficult for a health-led approach to drug use. Many of us would want to see such an approach introduced so that people are facilitated to move away from drug use.”
“That points to a signal not only that the Minister believes there is merit in retaining the offence under section 3, but that there is a desire to accelerate and increase prosecutions under it and freeze up a lot of time for Forensic Science Ireland. The message, we were told, is that we do not do an awful lot of prosecutions. Is Forensic Science Ireland so under-resourced that it cannot deal with that? Would it perhaps be a good approach to give an extra staff member to Forensic Science Ireland if the volume of prosecutions under section 3 is so huge? There are other approaches if the Minister is concerned about the capacity of Forensic Science Ireland, one of which is to increase its capacity.”
“That is the bar that applies on personal possession and to a find of a supply worth €100,000. Forensic Science Ireland is mandated to do this. It has the expertise and conducts the test. What the Minister is now saying is that those who are apprehended for possession can be prosecuted on the basis of a Garda test, whereas those prosecuted for other offences will still be going through Forensic Science Ireland. That is a disjoin. The Garda presumptive testing can be used as evidence of possession and Forensic Science Ireland's testing can only be used in relation to a more serious drug offence. It is not a case of saying there must be some system. There is a system. The Minister is trying to introduce a new, wider system and, to use his own language, it is to facilitate and speed up prosecutions for possession.”
“There have been health-testing measures in the past where people were able to check and know what substances might be illegal. With all of those health-led measures, there is the creation of a further bar against the use. That is why, in my opening commentary, I said there is not necessarily opposition to community-based drugs testing on a presumptive basis because it can play a role in health-led interventions and a health-led approach to supporting people to move away from drug use. However, what the Minister is talking about is that the tests administered by gardaí would now become evidence. The language the Minister used was that this was to facilitate and speed up prosecutions. The Minister said there must be a system. There is currently a system. The current system is that Forensic Science Ireland does the test.”
“Yes, we are. We are moving to a situation in respect of presumptive drug testing, which may have taken place and may not have had an evidentiary basis in courts, but may have had a health purpose. As regards that purpose, it is not simply that it is said it is a free-for-all and anything can be done. We can debate whether decriminalisation for possession, etc., will be part of it but what there has been is a very clear call for a health-led approach. We are now moving towards a situation whereby there will be greater apprehension about engaging with the Garda in terms of drug testing, even, potentially, for those who may have been drugged, because there is a question as regards possession if you are wondering and wanting to know. There is possession and there are issues and questions.”
“With respect, we are not debating a legislative proposal or changes in the legislation that may have been put forward by the committee after considerable consideration. What we are debating is the legislative proposal the Minister is putting forward. We are pointing out that it is moving in the opposite direction. The Minister gave his opinion in relation to decriminalisation. That is not what we are voting on here. What we are voting on is further criminalisation.”
“If I may make a point for accuracy, this is the second time the Minister has stated that. I was going to wait but, because the Minister has said this a second time, I will clarify that the recommendation was to decriminalise the possession of drugs for personal use. It is inaccurate for the Minister to say that the committee recommended the decriminalisation of all of these drugs, as he has now said for a second time. It is very important to be clear and accurate in respect of the committee's recommendations.”
“The Minister's amendment has never benefited from proper committee scrutiny with the benefit of expert witnesses. That is why I will not be able to support it.”
“Again, had this been subject to pre-legislative scrutiny, there would have been an opportunity to hear from scientific experts as to the difference between what FSI will do and what these kinds of tests that might be applied by individual gardaí might be. Others who have much greater expertise than me or others here might have had the opportunity to fully tease out these questions, to talk about them and to provide scientific evidence. When the Oireachtas Joint Committee on Drugs Use was given the mandate and authority to examine these issues in detail, it came out in favour of a health-led approach and a move away from a prosecutorial, criminal-based approach in relation to section 3. Those who had the opportunity to examine these issues gave a message that is directly contrary to the Minister's amendment.”
“The Minister has to consult with FSI but ultimately still has the power to introduce new inspections or tests to be carried out on substances, where he or she is satisfied that it is appropriate to do so. There are powers for new tests to be added but I do not see powers for tests to be removed where it turns out that there are problems with them or where the director of FSI or the Minister points to issues with the quality of those tests. I do not see where tests that are of a poor standard can be removed and no longer used as evidence. Such a mechanism does not seem to be included. That may be a symptom of this being an amendment added in at the last minute.”
“Why not use FSI unless the Minister anticipates such a volume that he will want to move through it quickly? It is hard to see why we would move away from the standard that is there in terms of using FSI for testing. An accelerated testing process is the only rationale I can imagine for wanting to introduce this testing by gardaí and for that testing to be used as evidence. That goes against the tide of what the public is telling us, what the Oireachtas joint committee after a year of detailed scrutiny has called for and what the Commissioner and Government have suggested. What the Minister is looking for is a new tool for the prosecution of section 3. With regard to the detail of the section, it is notable that there are measures to allow FSI and others to certify new kinds of drug tests.”
“The message has been that we are moving towards a harm-reduction and health-based approach to users of drugs or, in some cases, victims of drugs, rather than those involved in the industry. The Citizens' Assembly on Drugs Use and the Joint Committee on Drugs Use - this is the citizens' assembly of the public and the cross-party Oireachtas joint committee - have both called for a shift to a comprehensive health-led approach to drug use and for a movement away from criminalisation and prosecution of small-scale possession for personal use as part of that. That is what the public called for and what the Oireachtas joint committee comprising members of all parties has called for, yet we have here a measure from the Minister seeking to escalate and accelerate prosecution. Otherwise, what is the delay?”
“It is a lower bar for evidence in order to prosecute people for simple possession than for those who may be engaged in one of the more significant offences related to production or supply of drugs. I do not see how that gels with the message that we should not be worried about section 3 because that section is never the focus. Section 3 is directly the focus of this legislation and the measures being introduced by the Minister. Will the Minister clarify why Garda powers to advance prosecutions and create a lower bar in terms of the evidence that can be used for prosecution of simple possession are being expanded when the Garda Commissioner is on the record suggesting - and this messaging has also come through from Government - possession is not the focus?”
“The message has been, "Don't worry about section 3 with its focus on possession because we don't really use section 3 very much and section 3 is not a focus for us." However, in what is being introduced now, the Minister is providing additional powers in respect of prosecution and, arguably, lowering or shifting the bar for a whole other strand of evidence that can be used. It is a wider standard - a lower standard, potentially - in terms of tests administered by the gardaí, in order to make prosecutions under section 3. If you are involved in the production or supply of large amounts of drugs, then the drugs used as evidence against you will be tested by FSI, whereas if you have a small amount of cannabis resin for possession, the standard used to prosecute you is lowered to a test administered by the gardaí.”
“It came up again when my colleague, Senator Ruane, highlighted the issue with section 3. The Minister will be aware of the position taken by the drugs reform committee in respect of this. There has been a concern about section 3 and its operation. The Garda Commissioner has stated the organisation is not supportive of decriminalisation because the priority for the Government is disrupting production, supply and the organised drug market, and that the Garda does not target people for small amounts of drugs.”
“In amendment No. 25 and the associated set of amendments, the Minister is looking to expand Garda powers under the Misuse of Drugs Act 1977 by allowing members of An Garda Síochána to undertake examinations and inspections of controlled substances for the purposes, specifically, of section 3 in terms of prosecution for simple possession. Presently those tests can only be undertaken in a controlled laboratory environment by a suitably qualified member of FSI. While there may be an argument for facilitating drug testing at community level from a harm-reduction perspective or a medical perspective, it is equally important to maintain an appropriately high evidentiary threshold when it comes to criminal prosecution. Earlier this week the Garda Commissioner referred to this.”
“They are, so perhaps we will have a chance for that debate. I am grateful for that. However, it is still an issue that in these last two weeks amendments are being introduced that are very substantive but have not been given pre-legislative or proper scrutiny. This is part of a suite of legislation to significantly increase the powers the Garda, the Defence Forces and many other entities of the State will have. It does not give great confidence in how they are to be used if they are being pushed through at the late stages of a discussion, without proper pre-legislative scrutiny or a proper opportunity for us to bring our own amendments to the amendments. If they had been brought on the formal Committee Stage, we would have had the opportunity to respond to the Government's amendments with our own amendments on Report Stage.”
“It is not just our mandate, my mandate or what I get to say about or it. It is the mandate we were given. It is our obligation. It is what we are elected to do. It is our job. The Minister is pushing through very significant changes in a way that inherently curtails debate because on Report Stage all of us will only have the opportunity to speak once. We will not get the opportunity to ask a question of the Minister, have the Minister reply to us and ask follow-up questions to tease out the detail on these changes. That will not be the prerogative we have. The Minister will propose the amendments, we will speak once, the Minister will say whatever he wishes to say and then we will move to a vote. That is what will happen with these amendments unless they are being recommitted to Committee Stage.”
“There are concerns about measures that seem to contravene what the Government has previously said on section 3 and the fact that it is not planned to prosecute under it because it seems to engage with the process to significantly accelerate and increase prosecution and use of section 3 for minor drugs possession offences. There are many other issues. There may be merit in character references and so forth. The point is that none of it was teased out properly or went through the proper process. At a time when the Minister is bringing very substantial changes through the system at a very rapid pace, a question of public confidence arises. This is the point I made on other legislation the Minister introduced, but it is worth reiterating. The Seanad has a mandate and the public has a right.”
“If they were, they should have been signalled and discussed as part of the discussion on Committee Stage and signalled properly at that point. Again, it is just poor practice. There are individual amendments which people may support and I may even support. There are other amendments about which I have significant concerns, ones that are concerning from a civil rights perspective in terms of the question of face coverings, which we know has been flagged as a particular concern for religious minorities, those with health issues and others.”
“These amendments, or at least highlighting and flagging the issues in these amendments, should have been brought on Committee Stage. There is a problem with the practice of bringing a large number of significant, consequential amendments on Report Stage, the last Stage of a Seanad debate, having avoided full and proper pre-legislative scrutiny on the matters, and having bypassed proper and full debate in the Dáil. The Minister is bringing these as a motion rather than as something arising from Committee Stage debate because we were not even given the basic courtesy of these issues being properly flagged as part of that Committee Stage debate. I believe there are 80 amendments. Presumably, they were in the drafting process last week when we were discussing this legislation.”
“I was looking for that, because it did not include language on the public, so it was not clear to me exactly which component this was around in terms of public systems. I would always reiterate that if we are very serious in terms of digital interference in our democracy, we would be more robust in our regulation of major social media platforms which have played quite an active role in anti-democratic activity, but that is by the by. That is fine.”
“I would like clarity from the Minister on what is envisaged. This is a new offence of unlawful interference with information systems or data. I note that it does not specify public information systems or public data. Could that include interference with corporate information systems? It is a little bit vague what is envisaged by that. I may suggest on Report Stage that there would be more of a clear process for when new offences are being added to the schedule.”
“I move amendment No. 24: In page 10, between lines 22 and 23, to insert the following: “(c) the insertion of the following subsection after subsection (5): “(5A) For the avoidance of doubt, it shall not be construed as intent to destabilise the economic structures of a state where such destabilisation would arise from the fact of that state’s breaches of international law.”,”.”
“I move amendment No. 23: In page 10, between lines 22 and 23, to insert the following: “(c) the insertion of the following subsection after subsection (5): “(5A) For the avoidance of doubt, it shall not be considered intent to unduly compel a government or an international organisation to perform or abstain from performing an act where such performing or abstaining from performing of the act is necessary to comply with international law.”,”.”
“I move amendment No. 22: In page 10, between lines 22 and 23, to insert the following: “(c) the insertion of the following subsection after subsection (5): “(5A) For the avoidance of doubt, opposition to the occupation by a state of a territory without legal basis shall not constitute grounds for inferring that the person is doing an act with the intention of seriously intimidating a population.”,”.”
“I move amendment No. 21: In page 10, between lines 22 and 23, to insert the following: “(c) the insertion of the following subsection after subsection (5): “(5A) For the avoidance of doubt, criticism of a state that is breaching international law shall not be constitute grounds for inferring that the person is doing an act with the intention of— (a) seriously intimidating a population, (b) unduly compelling a government or an international organisation to perform or abstain from performing an act, or (c) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a state or an international organisation.”,”.”
“Different legal systems, but I am saying, as the Minister described, they are cases of substantial criminal damage that are being done with an intention of compelling a government not to take an action, which is trying to compel governments not to allow arms to be used in a context of genocide. How does that not fit the kind of language the Minister is setting out here? Is there not a risk of that in that regard? I am not asking whether they should be prosecuted or whether these are offences. If they are being labelled and prosecuted as terrorist offences, which they are in the UK and another European state at the moment, that is the concern I have.”
“Let us not use the graffiti example. Let us use the examples that are in the courts at the moment in the UK and Germany, which relate to damage to a weapons system. If somebody damages a weapons system that is about to be used in violation of international law for the performance of war crimes, they may well be prosecuted because they have damaged property. Should they be labelled as terrorists because they have tried to take action to compel a state not to bomb and not to deliver arms? In the real world those are the two big cases in the news. One of them is the Filton 4 case. Those are the examples, the ones that are happening now.”
“Maybe not every form of opposition to a state or every attempt to compel it, even through direct action, should be interpreted as terrorism. That is my concern and it is what the Bill sets up to potentially happen in the case of direct action protests. Will the Minister clarify if he believes that forms of direct action protest that make demands of a state should be labelled as terrorism or should they instead be treated as grounds for criminal prosecution?”
“I am arguing against certain things, such as the spraying of graffiti or expressing a desire or demand for a government to take an action, being interpreted potentially as a terrorist intent. That is the issue. It is the intent. I was trying to amend that, which is why I was trying to clarify how it would be interpreted. The Minister came back and said that even if it is an oppressive regime, people still should not be allowed to do terrorist things. If it is an oppressive regime and you are a woman in Afghanistan or somebody supporting the women of Afghanistan, or if it is Iran and someone is graffitiing "Women, Life, Freedom" on a wall, or if you are committing criminal damage against an occupying power, do we believe that is terrorism? We might believe and agree that it is criminal damage but do we believe it is terrorism?”
“It is not true and, in fact, it is somewhat disingenuous to say I am saying people should be able to do whatever they want because they have a cause. That is not the case. It is a matter of whether certain causes should be defined as terrorist causes simply because the person wishes to force a state, or they have the intention of trying to compel a state, to take an action or not take an action. I am worried about how that might get interpreted. Criminal damage can involve very serious things, and that is why it should be prosecuted. It can go all the way from graffiti through to arson. That is why I have not, at any point, argued against the prosecution of the offence of criminal damage.”