Criminal Law and Civil Law (Miscellaneous Provisions) Bill 2026: Second Stage

Minister for Justice, Home Affairs and Migration (Deputy Jim O'Callaghan)

Tairgim: "Go léifear an Bille an Dara hUair anois."

I move: "That the Bill be now read a Second Time."

Tá áthas orm an Bille a chur i láthair sa Teach. I am pleased to introduce Criminal Law and Civil Law (Miscellaneous Provisions) Bill 2026. The Bill introduces important reforms to our criminal law and civil law across a broad range of areas and delivers on several programme for Government commitments. While miscellaneous provisions Bills often lack the unifying theme of other Bills, three primary themes emerge from the provisions of this Bill: procedural reforms to support a more responsive and efficient justice system; addressing issues relating to penal policy and prisons; and reforming aspects of the law in relation to sexual offences and sexually exploitative behaviours. The Bill responds to a range of challenges for the criminal justice system in particular, including severe prison overcrowding and an increase in violent incidents; the exploitative practice of seeking sexual activity in lieu of rent; and the need to restrict the disclosure of counselling records in sexual offence trials.

I will begin with the various procedural reforms for the criminal justice system that this Bill introduces. The Bill enables bail bonds and suspended sentence bonds to be taken by gardaí and prison officers, respectively, where a person participates in the hearing from custody. This will better facilitate videolink participation in court hearings by persons in custody and free up the time of front-line gardai and prison officers by reducing the need to convey persons in custody to and from the court.

The Bill also enables garda staff to certify custody of exhibits used as evidence in criminal proceedings. This will aid in freeing up gardaí for core policing duties, in line with long-standing policies on the civilianisation of non-core Garda functions.

Additionally, the Bill lowers the minimum rank of Garda that may apply to court for antisocial behaviour orders in respects of children and adults.

While these provisions may in themselves appear modest, cumulatively they have the potential to make an important difference by saving on the time of gardaí and prison officers in particular. I should add that I plan to introduce, by way of amendment to the Bill, further procedural reforms on Committee Stage, including the expanded use of remote hearings in criminal proceedings and the electronic transmission of documents in such proceedings. These measures will allow -----

Deputy Ruth Coppinger

Sorry, a Cheann Comhairle. Is the speech available?

An Ceann Comhairle

We have just asked the usher for the speech.

Deputy Jim O'Callaghan

These measures will allow the courts to bring a more flexible and efficient approach to such proceedings and save further time for gardaí, prison officers and other court users.

The Bill also provides for reforms in respect of prisons and penal policy. It supports the programme for Government commitment to extend the use of community sanctions by obliging the courts to consider a community service order in lieu of a prison sentence of up to 24 months duration - the current such threshold being 12 months - and doubling from 240 to 480 hours the number of hours of community service that may be prescribed in such an order. The court will also be required to give reasons where it considers that a community service order should not be made in such a case.

There are many offences with penalties of up to 24 months imprisonment where the offender poses no risk to the community and where the public interest may be better served by a person undertaking community service rather than being put in prison. This is particularly so at a time of serious capacity pressures on our prisons. Every case that results in a community service order will help to free up prison spaces for offenders who genuinely warrant imprisonment.

While greater use of community sanctions has a role to play in resolving prison overcrowding, I of course accept that it cannot be the only solution. The very large and sustained increases in the Irish population warrant a proportionate increase in prison capacity and the Government is taking the necessary action. As part of the national development plan, €495 million will be invested in building projects to deliver on a plan to build over 1,500 prison spaces by 2031. This will be the largest ever building programme on the prison estate.

In the meantime, however, overcrowding is causing a range of issues for our prisons, including an increase in violent incidents. While such violence has always been a risk factor in prisons, the situation now demands a response and it is in this context that the Bill includes provisions to remove the legal barrier to the possession and use of incapacitant sprays by prison officers.

The Bill provides that the use of such sprays will be permitted only in accordance with such provision as may be made by me as Minister under the prison rules. Their use will be further underpinned by mandatory policies and procedures along with bespoke training for prison officers, to further ensure that these devices are used appropriately and in line with all applicable health and safety and human rights considerations.

The Bill also contains important measures in relation to victims and potential victims of sexual violence and exploitation. I will focus first on the issue of counselling notes. I want to begin by acknowledging the distress that the disclosure of such personal and sensitive information can cause. As Deputies will be aware, section 19A of the Criminal Evidence Act 1992 was drafted with the intention of ensuring an appropriate balance between an accused’s right to a fair trial and a complainant’s right to privacy. It permits an accused person to make an application to the court for the disclosure of counselling records, but also allows the complainant to object to such disclosure, triggering a disclosure hearing. It also allows the complainant to waive their right to such a hearing.

An Ceann Comhairle

Sorry, Minister, just one second. Deputy, what is the problem?

The Bill, therefore, deletes the waiver provision.

Do we have a copy of the speech, by the way?

An Ceann Comhairle

It is on the way. We have requested it, as Members are aware.

Deputy Jim O'Callaghan

If Deputies want, I will wait until it comes. If the Ceann Comhairle will stop my clock, I will wait until it arrives.

An Ceann Comhairle

That is absolutely fine, Minister. Thank you. We will suspend until such a time as the speech arrives.

Cuireadh an Dáil ar fionraí ar 2.16 p.m. agus cuireadh tús leis arís ar 2.22 p.m.

Sitting suspended at 2.16 p.m. and resumed at 2.22 p.m.

An Ceann Comhairle

Copies of the speech are on the way. Deputies can rest assured that I will deal with this at the Business Committee next Thursday. I have already informed the Chief Whip's office that all speeches will be disseminated to Members prior to the speech or as the speech begins.

Deputy Alan Kelly

Thank you, a Cheann Comhairle.

Deputy Jim O'Callaghan

I was focusing first on the issue of counselling notes. I again acknowledge the distress that the disclosure of such personal and sensitive information can cause. As Deputies will be aware, section 19A of the Criminal Evidence Act 1992, which was amended in 2017, was drafted with the intention of ensuring an appropriate balance between an accused’s right to a fair trial and a complainant’s right to privacy. It permits an accused person to make an application to the court for the disclosure of counselling records, but also allows the complainant to object to such disclosure, triggering a disclosure hearing. It also allows the complainant to waive their right to such a hearing.

Over time, it has become clear that section 19A has not operated as intended. Complainants feel pressured to agree to the waiver, with the result that records are routinely released without judicial oversight. The Bill therefore deletes the waiver provision. This means there will be a hearing in all cases, where the complainant is legally represented, and where the defence must make a compelling case that disclosure is required. Therefore, such records will only be released where the judge deems them relevant to the defence.

I know that there have been calls for an outright ban on the use of counselling records in criminal trials, including by the Deputy Carthy's Oireachtas joint committee in its pre-legislative scrutiny report. I fully appreciate that such calls are well-intentioned and I fully sympathise with victims and survivors who have deeply felt views in this matter. However, I must not mislead people and I must reiterate that the unambiguous advice of the Attorney General's office is that a blanket ban on the disclosure of counselling records is not compatible with the Constitution. I cannot seek to introduce legislation that is described by the Attorney General as unconstitutional. I am also aware that other stakeholders in the domestic violence sector have also secured their own legal advice. That legal advice has confirmed to them that a blanket ban would be unconstitutional.

I want to assure the House that today’s legislation is not the end of the matter. I am committed to restricting intrusions into victims’ privacy rights to the maximum extent permissible under the Constitution. Recent Supreme Court jurisprudence has underlined the high level of constitutional protection given to personal records such as counselling notes. In line with this, on Committee Stage, I intend to introduce a presumption of non-disclosure in this regard. The default position will be that counselling notes are not to be disclosed.

This would only alter in the interests of justice, for example if an accused's fair trial rights are at risk. This will ensure that disclosure only takes place in the very small number of cases where it is warranted. Furthermore, I will expand the protections of section 19A to encompass other records containing sensitive personal data, such as medical records, child protection records and other such documents. These reforms will mean that proposed disclosure of any sensitive personal material will only occur where this is absolutely necessary, while any such disclosure will be subject to impartial and objective judicial scrutiny. I expect to be in a position in the near future to bring concrete proposals before this House in this regard.

Elsewhere, the Bill introduces measures to protect those at risk from the sexually predatory behaviour of accommodation being offered in return for sexual activity, commonly referred to as “sex for rent”. I reiterate that any attempt by accommodation providers to exploit their position and prey on vulnerable individuals through such arrangements is completely unacceptable. Such actions are an abuse of power, which will not be tolerated under any circumstances. The Bill will make it an offence to offer a tenancy or a licence for accommodation in exchange for sexual activity in lieu of payment. It will also be an offence to advertise such arrangements.

The Bill contains a range of other notable provisions, including to enable the use of more advanced DNA analysis techniques in missing persons cases. It is hoped that this will assist in resolving some outstanding missing persons cases and bring closure to families whose loved ones are missing.

On the civil law side, the Bill’s provisions include a permanent regulatory basis under which licensed premises may provide outdoor seating on public land. This will provide greater certainty for the businesses concerned and will support economic and social activity in our towns and cities.

I will deal briefly with the Bill on a section-by-section basis. The Bill is divided into 33 sections across 12 Parts.

Part 1 contains standard provisions setting out the Title, commencement order and a number of definitions of terms within the Bill.

Part 2 amends the Firearms Act 1925 and the Prisons Act 2007 to provide a basis for the possession, carriage and use of incapacitant sprays by prison officers in the course of their duties insofar as may be permitted under the prison rules.

Part 3 amends the Courts of Justice Act 1936 and the Courts Service Act 1998 to empower the Chief Justice to delegate certain non-judicial functions to other members of the Judiciary. This will allow the Chief Justice to focus on more pressing judicial matters.

Part 4 amends the Extradition Act 1965 to empower Garda members to provisionally arrest, without a warrant, persons named in Schengen information system alerts from Switzerland and Liechtenstein, countries that do not participate in the European arrest warrant system.

Part 5 contains section 12, which amends the Criminal Justice (Community Service) Act 1983 to oblige the courts to consider a community service order in lieu of a prison sentence of up to 24 months’ duration and to give reasons where they consider that a community service order should not be imposed in such cases. It also increases from 240 to 480 the maximum community service hours that a judge may order, and introduces a tiered timeframe for completion of the work depending on the number of hours of community service ordered. Section 12 also makes various amendments to the Act to allow the director of the probation service to designate staff other than probation officers to perform various functions under the Act. This will increase supervisory capacity in the area of community service while also freeing up more experienced officers to focus on higher-risk and more complex cases.

Part 6 relates to criminal evidence. Section 13 amends section 19A of the Criminal Evidence Act 1992 to delete subsection (17) of that section, which provides that complainants may waive their right to non-disclosure of counselling records in applicable proceedings. The effect of this amendment is that a disclosure hearing will be held in all such cases and hence that counselling records will be disclosed only where the judge considers it necessary in the interests of justice.

As I have said, while this is a necessary initial step in reforming the law in this area, I believe further amendments may be merited in order to ensure that there is an optimal balance between the rights of complainants and defendants in this area.

Section 14 amends the Criminal Justice Act 1999 to provide that Garda staff, in addition to gardaí, as is already the case, may prepare and sign certificates of evidence relating to custody of exhibits.

Part 7 amends various enactments to reassign from the Minister for Foreign Affairs and Trade to me, the Minister for justice, the responsibility for certifying Irish citizenship where it is relevant to certain offences. This will bring the enactments in question into line with the approach taken in more recent legislation.

Part 8 contains section 21, which amends the Criminal Justice Act 2006 to provide that where a person entering into a suspended sentence recognisance is in custody in a prison, the governor of the prison or a designated prison officer may take the recognisance in the prison.

The section also amends the Criminal Justice Act 2006 to lower from superintendent to inspector the minimum rank of garda that may apply to court for an antisocial behaviour order in respect of an adult.

Part 9 amends the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 to allow Forensic Science Ireland to generate DNA profiles derived from the analysis of coding DNA for identification purposes in cases relating to missing persons, unknown persons, and unknown deceased persons.

Part 10 contains section 24, which amends the Criminal Law (Sexual Offences) Act 2017 to create new offences of offering or advertising accommodation in exchange for sexual activity.

Part 11 provides a permanent regulatory basis under which licensed premises may provide outdoor seating on public land. As Members will be aware, the current legal basis, the Civil Law (Miscellaneous Provisions) Act 2021, requires renewal every six months.

Part 12 contains miscellaneous amendments. Section 30 amends the Criminal Procedure Act 1967 to provide that where a person entering into a bail recognisance is in custody in a Garda station, the member of An Garda Síochána in charge of the station may take the recognisance at the station.

Section 31 amends the Schedule to the Bail Act 1997 to amend an inaccurate legislative reference and to add to the Schedule the offences of coercive control and forced marriage, which are provided for in the Domestic Violence Act 2018. This will mean that where a bail application is made by a person charged with either of those serious offences, a court may refuse the application if it reasonably considers such refusal necessary to prevent the commission of a serious offence by that person.

Section 32 amends the Children Act 2001 to lower from superintendent to inspector the minimum rank of garda that may apply to court for an antisocial behaviour order in respect of a child.

Finally, section 33 amends the Multi-Unit Developments Act 2011 to facilitate the transfer of functions under the Act from me, the Minister for justice to the Minister for Housing, Local Government and Heritage. This amendment is necessary to negate a legislative absurdity whereby, as a consequence of the necessary transfer of functions order, the Act would otherwise require the Minister for housing to consult with himself or herself when making regulations under the Act.

Before I conclude, I would like to inform the House of certain amendments I intend to bring on Committee Stage, which arise from the general scheme of the Bill, some of which I have mentioned already. These include the provisions for the use of electronic technology in criminal proceedings, to which I have already referred; provisions for certificate evidence of presumptive drug testing by gardaí in certain proceedings; and a new Garda power under the Public Order Act to require the removal of face coverings in certain prescribed circumstances. I am conscious that there are differing views in respect of some of the proposals, as reflected in the justice committee's pre-legislative scrutiny, PLS, report. I advise the House that my officials and I are considering whether any modifications to the proposals in question are merited to ensure they are fully robust and workable.

I take this opportunity to thank the committee and its Chair, Deputy Carthy, for its consideration of the Bill during pre-legislative scrutiny, and to assure Members that I considered all the recommendations carefully. I will return to that presently in my closing remarks.

Separately, my officials are finalising legislative proposals for a scheme to enable the disregard of historical convictions relating to consensual same-sex activity. This was a matter Deputy Nash raised with me yesterday. I responded that I intend to bring forward Committee Stage amendments to the Bill in order to give effect to that.

I will very shortly be seeking Government approval for these proposals with a view to bringing them as amendments to the Bill as it progresses through the Houses. This will fulfil another programme for Government commitment and, more importantly, address a historical injustice against those affected, one which everyone in this House wants to see corrected. I will conclude on that point. I look forward to hearing the contributions of Deputies today, to which I will reply at the end of the debate.

Deputy Matt Carthy

I welcome the opportunity to speak on this Bill, on which, as the Minister says, the Oireachtas Joint Committee on Justice, Home Affairs and Migration completed pre-legislative scrutiny in the latter part of last year.

Úsáidfidh mé mo chuid ama den chuid is mó chun labhairt faoin ngá atá le deireadh a chur le húsáid nótaí comhairleoireachta i dtrialacha foréigin ghnéasaigh.

During the pre-legislative scrutiny process and again today I have repeatedly made the point that the approach of the Department and the Minister of including such a wide range of unrelated, diverse and, in themselves sometimes very important, matters within a single miscellaneous Bill is less than ideal. Miscellaneous Bills should be used for limited and technical changes rather than a large range of complex issues, which in reality - as we saw during the PLS process - means there is not adequate time to fully scrutinise individual unrelated measures. This is particularly the case with this Bill, which deals with issues as diverse as the use of counselling notes in sexual violence trials; the use of incapacitant sprays in prisons; remote hearings in courts, outdoor seating for pubs and restaurants, and banning sex for rent. Given the limited time we have here this evening, I will not be able to deal with all of those issues comprehensively but there are a number of things on which I want to focus.

When the justice committee considered this Bill during the pre-legislative scrutiny process, there was cross-party support in one instance and quite an amount of deliberation in respect of the calls for a complete and unconditional ban on the use of counselling records in sexual offence trials. Crucial to the committee reaching that decision was listening directly to what victims and survivors said to us. Survivors strongly asserted that this practice is deeply traumatising, causes severe psychological harm and that it heightens suicide risk. That is the evidence that was brought directly to our committee.

Notably, professional mental health bodies have also called for an end to this practice. I commend all of those who have told their stories. I will single out just a couple of people - Hazel Behan and Paula Doyle. I thank them and all the others who told us their intimate, personal stories, so that, as legislators, we could understand the reality of what happens in our courts, not just the theory of the disclosure of counselling notes that are sought when they could have a relevant evidential value crucial to a fair trial, but the reality that disclosure is now considered the norm by defence teams. The reality is that rape victims who have taken the stand are being asked about unrelated and irrelevant matters, which they had discussed in intimate and deeply personal conversations with their counsellor. They have to deal with the impact of knowing the perpetrator can read their personal thoughts and feelings about what happened to them - not only their personal thoughts and feelings but the interpretation of those thoughts and feelings by a third party, namely, a counsellor. There is an impact on victims of having to hand over years of notes, and continuing to have to do so, while cases drag on if they continue to attend counselling. We heard very starkly that people now make a decision on whether to attend counselling or to pursue legal recourse.

The submissions and evidence emphasised to committee members across all parties both how crucial counselling is to surviving and how the reality of allowing the disclosure of counselling notes actually impacts on victims. The committee listened and in our report we collectively called on the Minister to support a complete ban. The reality is that we all know it is wrong and unacceptable to add to the trauma of victims and survivors. While of course everyone accepts that we must protect the right to a fair trial in all cases, we have a duty to victims and survivors that must be put at the heart of how our system works. In all of the evidence our committee received and in all of the public discourse I have yet to come across a single case where divulging counselling notes was warranted in order to receive a fair trial.

We deal with making the law here but victims and survivors are living with the impact of the laws we make. The legal process, we are told, is traumatising victims and survivors. That is widely acknowledged and therefore we need to address this issue as the legislation progresses. Court delays, which are a particular problem in sexual violence cases, mean that the process can drag on for years. We know that far too few cases of rape and sexual assault actually result in a successful prosecution. Many crimes of this nature - probably most of them - are not even reported. If we have a hostile justice system, which is what victims and survivors see when they hear about the disclosure of notes, it does not encourage us having a justice system that works. The disclosure of counselling notes compounds that trauma in a way that is very hard for any lay person to understand. Certainly, I do not think it would be possible for anyone who has not been through that process to fully understand what that means for victims and survivors. When they tell us that counselling saved their lives but they would not do it again if they knew their personal thoughts, worries and trauma would be handed over to the perpetrators, we have to listen. More importantly, we have to act. For those victims and survivors who are campaigning for a ban on the disclosure of counselling notes, some of whom are here in the Gallery today, the real truth is that this will not help them personally. They have been through the process. They have suffered the trauma. They are doing this and are here pleading with us not on their own behalf but on behalf of others. They are asking us to act and they must be commended on that. Again, I appeal to the Minister to listen and to bring forward or accept amendments on Committee Stage to provide for a complete ban on the disclosure of counselling notes.

There are a number of other issues which I want to touch on briefly before concluding. The pre-legislative report from our committee had serious reservations in respect of the use of incapacitant spray in prisons and recommended that this proposal be dropped. Again, it appears we have not been listened to on this. I encourage anybody with an interest in this area to read or watch back the testimony of the Inspector of Prisons to the justice committee. He indicated that after more than 30 years of inspecting prisons across 46 member states of the Council of Europe, the current conditions for some people living in Irish prisons were among the worst he had seen. The inspector highlighted that at the start of this year there were 5,761 people in Irish prisons, which have a capacity of 4,718. That is an increase in 700 in the last 12 months and means we now have over 600 people sleeping on mattresses in Irish prisons. That means our prisons are not able to function as we want them to. This is on the Minister's watch and it is on the Government's watch. Rather than dealing with the serious overcrowding crisis which is making the conditions in prisons more dangerous for staff and prisoners alike, we are having this proposal instead. I have not been at all convinced that the introduction of a weapon into our prisons is the answer to the overcrowding crisis.

The Bill also deals with the issue of sex for rent. I welcome that because the Government and successive governments have been far too slow in dealing with this issue. Concerns have been raised for years and we know some landlords have been exploiting vulnerable tenants. It is two and a half years since the Sinn Féin spokesperson on housing, Deputy Ó Broin, introduced a Bill that would ban sex for rent. The issue should have been dealt with before now.

Likewise, I welcome the announcement that at some point during the process, and I hope it is early so that we have time to properly scrutinise it, a disregard will be allowed of historical convictions relating to same-sex activity. I welcome that. I commend my colleague, Deputy Ó Snodaigh, who has long campaigned for legislation on this. Again, I ask for it to be done as quickly as possible.

Finally, I want to address the fact that this Bill amends the Schedule to the Bail Act 1997. It adds the offences of coercive control and forced marriage, in both cases under the Domestic Violence Act 2018, to the Schedule to the Bail Act. Many people will be disappointed by the fact that this does not add section 33 of the Domestic Violence Act, which relates to breaches of domestic violence court orders, to the Schedule. While to do this would require the maximum penalty on conviction to be raised to five years, this could and should have been done as well because it is something that has been raised with me by those in the legal profession working in the field. It is also one of the recommendations in the report prepared by Lorcan Staines SC and published in November. More generally, I put on record that I hope the Minister will very speedily enact the other recommendations of that report. I will leave that for now.

Deputy Mark Ward

I am not in favour of the use of miscellaneous Bills for complex issues such as those we are discussing today. The issues in this Bill are diverse and have little or no connection to each other. The Minister went through the list of what the Bill covers, from the use of counselling notes in sexual violence crimes to obligating courts to consider a community service order in lieu of prison sentences, and even to outdoor seating on public land. There is very little connection between these. During the pre-legislative scrutiny of this Bill, some of these issues were not even discussed. These matters deserve their own stand-alone Bill in order to be interrogated properly, to give us the time to discuss them, to make sure we do due diligence on each Bill and to give each matter what it needs. The whole process is rushed, and rushed Bills make bad Bills. We learned from the Minister's speech that more amendments with other stuff are coming later on. We should have more chances to discuss such matters for a longer time. Due to the length of time I have to speak, I will only be able to speak on one aspect of this Bill.

I wish to talk about one of the aspects of the Bill that I know and of which I have some experience. The practice of the defence in sexual violence cases requesting counselling notes has become the norm, with devastating consequences for victims who are seeking justice. I am a qualified and former practising counsellor. During my time counselling clients, they would have disclosed to me some absolutely harrowing details, including being victims of child abuse or sexual and gender-based violence, and being victims and survivors of coercive control. As a practising counsellor, I was not aware that the legal team of a perpetrator of these horrific crimes could request my counselling notes to be used to defend its clients. Thank God, I was never asked to hand over such notes. I do not genuinely think I would have complied with such an order. Whatever the consequences would be, so be it. We also need to look at the practice of the DPP in the requesting of counselling notes. Once the DPP requests them, they have to be handed over to the defendant. The confidentiality of the counselling room is essential to allow the healing process. That is what it is there for. I checked the code of ethics of the organisation with which I was accredited and the only time I was permitted to break the confidentiality of that counselling room was when I felt somebody was a danger to themselves or to somebody else. This is something I had to do a couple of times over the years.

The amendment that the Minister proposes requires that pre-trial disclosure hearings take place in all cases where counselling notes are requested. The Minister contends that such an amendment would balance the constitutional rights of the accused to a fair trial with the rights of the complainant to privacy. Survivors wholeheartedly disagree with this Bill and do not believe that this Bill goes anywhere near close enough to upholding their rights. They contend it will continue to violate their rights and continue to cause significant psychological harms to survivors. To continue to allow the perpetrator to read the private, personal counselling notes of victims is inhumane and must be ended.

I am a member of the justice committee, as the Minister will know, and this point was made across party lines. Members of the Minister's party agreed that the use of counselling notes should be abolished when it comes to situations like this. Without this full ban, it will continue to retraumatise victims. It will stop victims from continuing with their lifesaving recovery or stop them from seeking justice to continue their healing. It will cause ever further delays in an already chaotic judicial system. Survivors also make the point that judges are not qualified counsellors or therapists. They have no understanding of third-hand information. I ask the Minister to accept any amendments that the Opposition proposes as this Bill progresses through the rest of the House, and to bear in mind the opinions and real-life experience of survivors and victims.

Deputy Rose Conway-Walsh

I thank Deputy Ward for sharing time. I want to talk about the offences under the Domestic Violence Act in this Bill. This is my first chance to talk about a profoundly courageous woman I have the privilege of knowing.

Margaret Loftus is a former member of an Garda Síochána who was married to another garda, Trevor Bolger. Trevor Bolger was violent, abusive and isolated Margaret from her family in Mayo. Events came to a head when Trevor Bolger viscously attacked Margaret and threatened to kill her after a family event. Margaret left Trevor Bolger, got a barring order and requested a transfer to Mayo to return to her supportive and caring family, who I also have the privilege of knowing. Margaret went through a horrendous ordeal in the family law courts and had a committal warrant served to send her to prison based on Trevor Bolger's assertions. Margaret was initially granted the transfer but shortly after, the behaviour of some gardaí became increasingly sinister. They began to interfere with her and her life.

It was very clear that an Garda Síochána, or some members of Garda Síochána, were siding with Margaret's ex-husband, barring order or no barring order. Her transfer was revoked so to remain with her family in Mayo, Margaret was advised to go on sick leave. While on sick leave, her pay was stopped on multiple occasions for spurious reasons. A disciplinary fine was attached to her file and taken from her wages, unknowingly to her, and was returned after she questioned it and followed it up, asking numerous times what it referred to.

Margaret requested the gardaí investigate her husband, his violence and his ongoing threats to kill her. Margaret could see on the Garda PULSE system that Trevor Bolger had checked her more than 20 times. Every time an incident occurred, he could see if she reported it or not. Margaret prepared her own investigation file and sent her statement directly to the office of the Garda Commissioner. While the investigation was under way - that is, while Trevor Bolger was under investigation for domestic violence and a threat to kill - he was promoted to detective, with glowing references from his sergeant and superintendent. He was given a gun.

Meanwhile, Trevor Bolger repeatedly looked Margaret up on the PULSE system and sent gardaí to her home in Mayo to carry out welfare checks on her children. Justin Kelly, who is now the Commissioner, was the first person to take her seriously. This gives me some hope. Margaret was emphatic in her statement that her journey through the family law courts was torturous. I believe her.

Deputy Conor Sheehan

Hear, hear.

Deputy Rose Conway-Walsh

The fact that vital evidence that was given in the family law courts but was not allowed to be transferred over to be used in the criminal court is, I believe, a miscarriage of justice in its own right. A proper investigation was at last conducted and a file was sent to the DPP. The criminal Circuit Court granted Trevor Bolger full State legal aid throughout the whole court process. There was no means test or evaluation of assets carried out. He was suspended from an Garda Síochána with full pay. The criminal Circuit Court also accepted an application from Trevor Bolger to get a media gagging order on the court proceedings with full consent from the State. Margaret did not consent to this order and there was no legal basis for this order being made.

Eventually, the legal firm for the media got this application lifted so it could be reported on. Margaret was questioned twice by an Garda Síochána on articles that appeared in the media. Conor Lally, a journalist with The Irish Times, was also questioned. Margaret made contact with at least eight politicians over the years seeking help. Three of those were Ministers for justice at the time she made contact. One of those sent back an email to say he could not be of any assistance but was deeply troubled by what she had told him. Still, nothing was done.

The DPP took a plea deal. Before this plea deal, there was a disposition heard in court. Margaret was not happy with the way the State presented the case, so did some investigating herself. She realised the senior counsel assigned to the case by the State knew Trevor Bolger well and had worked with him on high profile drug cases previously. As Margaret queried this, the senior counsel removed herself from the case with no explanation given. Margaret's victim impact statement was censored by the defence and Trevor Bolger. She had to take out parts of it he was not happy with when the report was read out. Details of this case were reported by the media in 2019 and 2020.

Trevor Bolger pleaded guilty to a section 2 assault in the Circuit Court and was sentenced in January. The case was before the Circuit Court 55 times before this plea was entered. During these 55 times, Trevor Bolger was granted disclosure order after disclosure order to gain access to every inch of Margaret's life. He was facilitated to drag her through the courts a total of 58 times in all. Miriam O'Callaghan filmed an interview for "Prime Time" that was aired on Tuesday. Margaret has now left an Garda Síochána. Fiosrú is conducting a root and branch investigation into the case, attitudes to domestic violence and treatment of women on the force while Trevor was given a gun.

There are so many wider implications to this case that I am asking the Minister to meet with Margaret Loftus to address the critical issues she has raised and ensure that no other woman who is a victim of abuse from a member of an Garda Síochána is forced to go through this torturous journey.

Deputy Matt Carthy

Hear, hear.

Deputy Alan Kelly

I will be sharing time with my colleague, Deputy Conor Sheehan.

I do not like to criticise the Minister or his Department but bringing in a Bill in this way is crazy. There is so much in it. It is all over the place. That is why we wanted the Minister's speech. He said he spoke off the cuff. Frankly, most of the time he does.

Deputy Jim O'Callaghan

I know.

Deputy Alan Kelly

On this occasion, he read it verbatim. The reason he read it verbatim was he has to be very careful about what he is saying on a lot of these things. From a legislative point of view, it is very tricky. This is not good practice and I am surprised at the Minister for behaving in this way in this House. This is so diverse. It includes pepper spray, community service orders, counselling records on sexual offences, sex for rent, changes to bail, remote hearings, electronic documents for court, DNA analysis, issues with outdoor seating for public houses, face coverings and an issue I truly welcome, namely the disregard of convictions relating to consensual same-sex activity. That is as diverse as you can get. It is crazy to do a Bill like this. A few of them I can maybe understand but a number of them deserve to be Bills on their own. A number of us here are on the justice committee. We did not even go through some of these in pre-legislative scrutiny because we did not know the Minister was doing this and he did not provide anything. This is not good practice. I know the Minister is only in his post a year but he is experienced. This is not the way to do things. The Minister should not be doing these things. It is an indictment of him and his Department that he is coming in here and throwing all of this at us, while bringing in a whole range of other amendments we have heard about in the media as well.

I will try to run through a number of the issues as quickly as I can. On the issue of pepper spray, our committee was pretty adamant that bringing in a tool like this into a prison service is not exactly good practice. If you listen to the Inspector of Prisons, I think he is on a different track from the Minister. I know the Minister has plans to bring in 1,500 extra prison spaces but if you look at the practice in the UK, you will basically be chasing them. The prisons will end up full again but you are not dealing with the issue. The conditions of the prisons in our country are an absolute disgrace to successive governments. The way they have been left is a disgrace. While I understand the Prison Officers' Association have views on this, the idea we will bring in such capacity into prisons is creating a huge amount of risk. I am concerned about that. I am also concerned about it because we have not had an analysis done in the form of a risk assessment. It will be piloted but we have not done a risk assessment. This is bizarre. It needs to be looked at again and we will certainly do so on Committee Stage.

On the changes the Minister is making to community service orders, I very much welcome these. This is something that would help the issues we have in our prisons. It is good practice and it is to be welcomed. The threshold of 24 months and the conditioning of how people will qualify for that really needs to be teased out but it is good practice. The issue I have here is how we are managing the Probation Service. If the Minister has met with it recently, the Probation Service will tell him to his face that it is so stretched. It simply does not have the resources and it does not have the personnel.

I know a number of people who work in the service, and they are absolutely stretched as far as they can go. They do not see how they can continue if there is not a complete relook at the way in which they are working. In tallying with this change, absolutely, the Minister is going to have to in some way relook at the Probation Service in a very supportive way, particularly in relation to bringing in more personnel to work there.

The issue of counselling records in sexual offences trials is going to be very difficult for the Minister. We believe, and our committee believes, very strongly that this issue has to be dealt with in such a way that this is not going to happen any more. I have met individuals who will not go for counselling. When that is something that comes out as a result of where we are in this country and the case law that has been there, that is deeply worrying. I believe the Minister's bona fides here are probably correct. I understand that this is very tricky constitutionally. I understand it is very tricky from a legislative point of view. I know the Minister is bringing in amendments, and I do not doubt his commitment. However, I am not sure he can actually narrow this down such that when it goes through the courts and through the actual cases of the future, he can separate it out and this would be allowed only in very specific cases, as he said, in relation to people getting a fair trial. I doubt it. There will be legal challenges left, right and centre. I believe there will be a precedent set then and it will fall. I need the Minister to think very carefully on this because I believe that when it comes to Committee Stage and Report Stage, this is, frankly, borderline impossible and he will have to go with the committee's recommendations. I think it is a big struggle for his backbenchers and for his colleagues as well. This is a topic we, as a Legislature, have to deal with, and deal with sensitively and right. I believe the Minister will have to go with the committee's decisions in relation to this because I am not sure that what he is proposing will be sustainable in law. It is definitely the trickiest part of this Bill. I urge the Minister to maybe listen again to all the groups we have met, such as the National Women's Council, One in Four and many more, in relation to this because he needs to reconsider this whole section and how he is going to go about it. I look forward to the Minister's amendments on Committee Stage, but I certainly do not believe this is going to be feasible in the way in which he is prescribing.

I am delighted to see that the Minister has finally come forward with legislation in relation to sex for rent. I commend him. I hope he respects the fact that the Labour Party and, indeed, my party colleague Senator Harmon brought forward a Bill on this well over six months ago. In fairness, the Minister met with her, and much of what she put forward is in this Bill. It is beyond time this was done. The Bill amends the Criminal Law (Sexual Offences) Act 2017 and creates two new offences. From our perspective, this is very accurate. The first offence is where a person is offering a person accommodation in return for sexual activity in lieu of payment. The second is an offence of advertising or causing to be advertised an offer of accommodation in return for sexual activity in lieu of payment. This is beyond required. It is also important that this is being prescribed in the Bill in two different ways to avoid any form of doubt, which is the way it should be done.

The Minister has a range of other measures he is bringing forward as amendments. Before I go through those, in relation to the Bail Act, I am delighted the Minister is putting provisions in the section in relation to coercive control and also with regard to forced marriages. Both are very important areas. It is quite obvious that coercive control is becoming more of an issue. It lacked a definition, so it is very welcome that it has now been defined. It will be a substantive issue that can be used now in relation to the decisions for bail. Forced marriage, unfortunately, is also on the increase as our country changes and as different nationalities come in and everything else. This is something that also crops up quite a number of times. I very much welcome it. We could have looked at other areas in relation to bail, and we may come back with amendments on that as well.

Furthermore, the issues relating to court hearings and the electronic sharing of documents are something that should have been addressed years ago. I have actually flagged this myself. I have spoken in this Chamber about it. I have spoken to so many gardaí and people who work in the justice system about this. It is actually ridiculous. It is beyond time that was done.

We need further information regarding DNA analysis techniques and what the Minister is proposing in relation to missing persons. In principle, however, I believe we will be supportive.

Many people were probably not fully aware of the issues in relation to outdoor seating on public land. I am aware of them, and that needs to be closed off. That is to be welcomed.

We need to have a larger discussion in relation to the definitions behind how we are going to deal with face coverings. In principle, I agree with the Minister, but we need to look at the conditioning around how we are going to deal with that.

I also want to raise something I raised with the Minister earlier. Today, I published a Bill providing for an update to Coco's Law. I asked the Tánaiste that this issue be dealt with in the coming weeks to deal with the obvious issues in relation to what is happening with online e-commerce companies and online publishers and the fact there is a lacuna in the law. The reason I am raising it here is simple. This may be the avenue on Committee Stage - I do not really care whether it is the Labour Party or the Minister, if he can improve it - where we can bring in changes to ensure that we deal with this issue in a prompt and timely way. We believe there is a lacuna, and we have taken a lot of advice on the issue of where AI-generated or computer-generated images are being developed and then shared by e-commerce publishers. I do not call them platforms. They are publishers, the same as the Irish Independent, the Irish Examiner, The Times or anything else. They are publishers, and we have to have this scenario now whereby it is an offence for those who behave in such a way and who do this. Gráinne Seoige appeared before the Joint Committee on Arts, Media, Communications, Culture and Sport yesterday. It is quite obvious from talking to her and many others that the idea that An Garda Síochána can go around looking for a whole range of different phones is not sustainable. The Garda asks people for their phones, they say "No", that they are not giving the phone, and then the Garda has to get a court order to be able to get the phone. That is not sustainable. We have to deal with this at the stage of the actual publisher, whether that is X, Meta, TikTok, Google or hundreds of others. We must deal with it at that stage, where it is a criminal offence to aid and facilitate the distribution of such images. This issue will be coming in front of the Minister at Cabinet. I would hope that we can deal with this very quickly. This may be the vehicle by which we can do so. I wanted to raise that because, if necessary, we will bring it forward and, if necessary, we will do so in this Bill.

Before I let my colleague in, it is very important that I acknowledge the fact that the Minister will bring in through this Bill a disregard of historical convictions in relation to consensual same-sex activity pre 1993. I look forward to it; this is very much welcome. My colleague beside me, Deputy Nash, has been an advocate and has worked on this for well over a decade. In fact, he raised this so often in this Chamber and outside. He is to be commended hugely on it. The Minister might acknowledge campaigners Kieran Rose, my good friend Karl Hayden and Brian Sheehan, who are in the Gallery above us today along with Eddie McGuinness. They are prominent campaigners on behalf of the LGBT community who have put in massive numbers of hours, days, months and years campaigning for so many people to get those convictions from 1993 spent and disregarded.

This is very important legislation for them and for many others. I acknowledge and thank them for their campaigning over the past number of years.

Deputy Conor Sheehan

I will start with what I welcome in the Bill, namely, as Deputy Kelly just noted, the disregard for people convicted of same-sex activity pre 1993. It is really important that we get this done and get it done quickly because those people are getting older. I commend the work done by my colleague Deputy Nash, who was heavily involved in organising, first, the apology, which was the start of a suite of measures to right a terrible historical wrong. The measures in the Bill to disregard those convictions are incredibly important.

I also welcome the provisions banning sex for rent, which is an issue mainly affecting marginalised women who are renting rooms and do not have own-door accommodation. This needs to be enacted as quickly as possible because these types of advertisements are still online. Senator Harmon introduced a Bill seeking to ban the practice in April 2025. It is really important that we do this.

The Bill includes provisions on the use of pepper spray. I took part last December in a visit to Limerick Prison organised by Deputy Carthy and the justice committee. I was shocked by the level of overcrowding, even though I had already seen the figures. There are 600 people on mattresses in our prison system. The female wing of Limerick Prison is at 163% capacity, which equates to 127 people for 56 beds. There has been an exponential rise in the number of people with mental health issues in the prison system. Our prisons are at breaking point. Some 77% to 78% of all committals are for 12 months or less and that percentage is rising. This is something we really need to address. There are far too many people in our prison system serving short sentences. We must find alternatives to custodial sentences for that group.

Violence between inmates rose by 31% in 2024, primarily because of overcrowding. My concern regarding the use of pepper spray is that, on the face of it, it might seem like a solution. However, having been implemented in the UK, there have been huge issues, for example with people being racially profiled. It is now even being used on young offenders there. That is totally unacceptable. No proper risk assessment has been done or published on the introduction of this measure. Arming prison officers will not address the underlying causes of violence between prisoners, which primarily are drugs and overcrowding. All of these factors are coming together to create a pot of tension. Adding pepper spray to that pot will not address the underlying issues.

I want to see an outright ban on the use of victims' counselling notes by the prosecution, as recommended by the Oireachtas justice committee, insofar as that is possible. In an ideal world, they should never be disclosed. I have spoken about this with survivors in my constituency, even as recently as 20 minutes before coming in here. One of them disclosed to me the sheer terror and trauma of having her intimate thoughts admitted as evidence in a case dealing with a sexual assault against her. This is one of the instances where our justice system is overtly paternalistic. It was designed and has been administered primarily by men. However, this is an issue that disproportionately affects women. We need a total recalibration in this regard. Many survivors who have been through our justice system say they felt the process of going through that system was worse than the crime perpetrated against them. We really need to come back and look again specifically at the counselling notes issue.

Deputy Paul McAuliffe

I welcome each of the provisions of the Bill because behind many of those provisions are either victims or groups who have campaigned for the Government to act. The Minister has hit the ground running in the past number of months. The breadth of the Bill demonstrates his good faith in having worked with many of the people who sought these provisions.

I spent all of Christmas listening to the Opposition telling us this is a do-nothing Government that has introduced no legislation. Now, apparently, there is too much in the legislation. I will leave it to the Opposition to make its case. A Bill of this nature is often about trying to get provisions into law as quickly as possible. That is not being done in order that the Government can tick a box but because there are groups that have been asking for these provisions to be included in Irish law. By including them in this Bill, they will go onto the Statute Book in a speedier way.

Behind many of the Bill's provisions are people who worked to secure them. I will start with the provisions mentioned by Deputy Nash, namely, those dealing with historical convictions for same-sex relations. I welcome to the Gallery my former Dublin City Council colleague Kieran Rose, along with Eddie, Karl, Brian and the many others who are here. Days like today do not happen by accident. They happen because people, having first put their head in their hands, then put their heads around a table and tried to seek changes to the law in a practical and determined way that would deliver results. The LGBT community in Ireland has had many celebrated days in public spaces, such as the forecourt of Dublin Castle. The very small number of people who were convicted for having same-sex relationships are the people who were treated most harshly by Irish society. While a Second Stage debate in the Dáil on a Thursday afternoon might not be the celebrated public event other LGBT events have been, it is an incredibly important one. We think of the people who faced those convictions and the unfair and unjust way Irish society treated them. It is only right, having come so far in terms of equality legislation, that they are not being left behind and were not forgotten. I appreciate the Minister's support in this regard.

A provision not included in the legislation is one to implement the proposed Jennie's law, which will be the subject of a different Bill the justice committee is considering. I commend the committee Cathaoirleach, Deputy Carthy, on the conduct of pre-legislative scrutiny yesterday. Not everything was shoehorned into this Bill. The Minister decided to leave out some measures in order to scrutinise them further. The Bill to implement Jennie's law is another example of an issue where he has listened to a group, responded to a need and brought forward a legislative proposal. Some of the proposals in the Bill before us were brought forward by Opposition Deputies and some by Government Deputies. I commend those Deputies on their efforts. There are days when one feels one has achieved very little in this House. However, the provisions in this Bill mean many Deputies will see their ideas and contributions brought into law. I particularly commend the people who campaigned for a ban on sex for rent. This is an important issue that was discussed at the housing committee.

I acknowledge the provisions to amend the Multi-Unit Developments Act. As a member of the public accounts committee, I am always very concerned about how we spend public money.

Due to the successful campaigning of the Construction Defects Alliance, Pat Montague and the many other people who have met us over the years on that issue, the Government will have a scheme that supports people with defective apartments. The mechanism by which we are addressing those defects and the financial vehicle we are using will be owners' management companies and in many cases these companies and their structures are not fit for purpose. They are not regulated correctly and both their makeup and their structure leaves a lot to be desired. I say that not due to any great conspiracy out there, as often it is a small number of residents in an apartment block who are left with the job of running an OMC. They often wrangle with the developer and wrestle with legacy issues. They do not have the same access to legal advice, and so on. Reform of the MUDS Act is incredibly important and the first step of that is for the Minister to transfer responsibility to the Minister for housing. The present Minister has discharged his duty on that issue and the pressure will now be on the Minister, Deputy Browne, who is already very keen to make amendments so when we start to distribute money for apartment defects we will know it is going to entities that are regulated. There should be a register of owners' management companies, a regulator of them and also a mechanism for people who are subject to such companies to resolve disputes. All this was dealt with in the legislation on apartment defects, so I will not dwell on that.

I note other provisions on pepper spray and note also the Minister's comments on the counselling notes. It is certainly a more tricky and difficult area but the Minister said we will see further amendments on Committee Stage, which I look forward to. I think everybody in this House is in the same place when it comes to what we can achieve. The question is around how we can achieve that. I know the Minister will do what is possible and perhaps we can push that as far as possible. I forget the phrasing he used but I think he referred to working within whatever constitutional limits are there. We need to go to the very edge of the limits of that in order to protect victims.

I note the provisions on the duties of the Chief Justice, and so on. We must always be very careful about the Judiciary. The Constitution obviously provides for the three branches of the Judiciary, the Government and the Oireachtas. There is incredible accountability for two of those branches almost daily in the media, in this House and so on and it is a matter for the Judiciary to respond to its democratic role in society. However, when you look at reactions like there were last week when there were reports that perhaps too lenient a sentence was given in a case involving a single-punch killing - I will not say anything about that case because it may be subject to appeal and I do not want to in any way interfere with it - it does make you, as a Member of the Oireachtas, reflect on how the same level of accountability that applies to these branches does not apply to the Judiciary. It is for the Chief Justice and the Judiciary to reflect on that themselves, to find ways in which they can build confidence and ways they can communicate with the public about why things happen. While we are all individual Members of this House, we also realise we are a collective and we regulate for the minority or regulate for individuals and the Judiciary has that responsibility too.

It is a far broader point and one that lies in the courts rather than here but how the Judiciary retains the confidence of the public in the area of sentencing is incredibly important. Last week there was huge hurt in my community and I am sure in many others there are often lingering questions about why something happened yet in a modern society we have no way of questioning or asking why something happened. On previous occasions we asked the courts to send a representative to our joint policing committee so they could talk to us about sentencing and we could talk to them about the impact sentencing has in a working-class area. They felt it was not appropriate for them to attend that JPC because of the separation of powers and perhaps I can understand that but on other occasions I have seen members of the Judiciary attend legal or academic conferences where they have spoken about events, often I suppose to do what I am asking them to, which is to maintain the confidence of the people. It is a very tricky area but we need to demand of them what is demanded of us, which is that they are accountable within the limits and the structures that the Courts Service and the Judiciary have.

I thank the Minister, in particular for the provisions of the Bill which I have highlighted.

As I said, it has most impact in working class areas.

Deputy Gary Gannon

All of us on the justice committee know this is a wide-ranging Bill. It is a fair reflection of how the Government is currently approaching the justice system. The Minister is often talked about in media circles as a Minister in a hurry. This Bill demonstrates that it is all hurry and very little pace because buried in these 33 sections are, admittedly, glimpses of what Ireland's judicial system could be - a country that treats survivors with dignity, with prisons that rehabilitate and that understands that housing, safety and justice are deeply connected - but what the Bill actually delivers does not come close to that standard. It is a timid, risk-averse version of reform. It shows a Government afraid to trust the evidence and the people who advance the evidence and afraid to be ambitious. The Bill represents a lot of things Ireland could be but clearly will not be under this Government.

Before I turn to what is in the Bill, I will address what has been deliberately left out on this Stage. The general scheme of this legislation contained a proposal to explicitly grant An Garda Síochána the power to require people to remove face coverings in public. That provision is not in the Bill before us today. The Minister has confirmed it will instead be introduced later by way of Committee Stage amendment. That is deeply cynical. I read the last part of the Minister's speech in which he talked about wishing to do that in collaboration with those who potentially have an opposing or different view. I think I speak for those of us on the justice committee when I say that would be a first. For example, we looked at pepper spray in prisons. We clearly all have a different view from the one being advanced by the Minister but there has been no attempt to collaborate on that. The absence of the provision and how the Minister intends to approach face coverings could have been put into the Bill and we could have understood exactly what we will be seeking to amend, modify or argue against, or if the Minister had won the argument, that would be fair enough. That is what parliamentary debate is for. Its exclusion speaks to homework unfinished.

If the Government believes it necessary and proportionate to change Garda powers, it should have been included in the Bill on publication and debated openly on Second Stage, where questions of principle clearly belong. Removing it now, only to insert it later on Committee Stage, ensures less time, less visibility and less scrutiny of a significant expansion of policing powers. An Garda SÍochána already has extensive powers under the Criminal Justice (Public Order) Act 1994 to deal with threatening, intimidating and abusive behaviour. That analysis is shared by the Bar Council. The question is not whether gardaí need this tool but whether the new powers are necessary, proportionate and legally sound and we should be able to debate the Minister's proposal on this Stage.

Let me turn to pepper sprays in prisons. I think my view is echoed by all members of the justice committee that this is one of the most dangerous provisions in this legislation. The proposal is to arm prison officers with incapacitant spray. The Government presents it as a safety measure but the evidence clearly says the opposite. The Oireachtas justice committee, after hearing from human rights experts, prison specialists and international researchers, recommended this proposal be removed in its entirety, not amended or softened, but removed. We concluded that prison officers should not be armed with chemical spray at all. The reason is that the evidence from comparable jurisdictions is damning.

I find it borderline insulting for the Minister to use overcrowding as a justification for a bad policy, when overcrowding is also a consequence of numerous other bad policies. HM Prison and Probation Service, when evaluating the use of PAVA spray in England and Wales, found it was "unable to conclusively demonstrate that the use of PAVA had any direct impact on levels of prison violence". The committee heard that in English and Welsh prisons, one third of uses were found to be unjustified, one quarter of uses were where alternatives existed and nearly two thirds of uses breached operational guidance. That means, in practice, chemical weapons are not used as a last resort. They are used when staff are stressed, when tempers are high, when systems are failing. Yet, the Government looked at all that, with the conditions of our prisons in mind, and still decided to proceeded, certainly not because the evidence supports it - if there is evidence supporting it, I would like the Minister to present it to us - but because overcrowding has made prisons more volatile and rather than fixing overcrowding, the Government has chosen to weaponise staff. That is not a safety policy. Those of us who have visited prisons, heard testimony - and I will go into the prison inspector's testimony shortly - and understand the nature and psychology of people in prisons where there is overcrowding know there is no way to spray an incapacitant spray in a overcrowded hallway and not impact the wider prison population. It is grotesquely unjustifiable in the conditions.

Turning to community sanctions on the other side of the justice system this legislation covers, the Bill introduces modest changes to community service orders and that is welcome. However, let us be honest about the scale of the crisis we are in. Our prisons are operating miles beyond capacity. People are sleeping on floors every night. Rehabilitation, where it may have existed previously, has collapsed and people are quite literally dying in our prison system. The year before last, we had the highest level of prison deaths since records began.

I am not sure whether the Minister looked at the justice committee testimony two weeks ago when the Inspector of Prisons was there. Even the jaws of those of us who asked for these discussions were on the floor due to the frankness with which the Inspector of Prisons spoke about conditions tantamount to torture and we are now bringing incapacitant spray into that environment. We will look back at this period with horror, with how casually we allowed human beings to be warehoused in degrading conditions. This change, where a change is being offered, is a slight tweak that will not address the issue it seeks to serve. It is a bare minimum. The joint committee explicitly called for much more. We called as a matter of urgency for the publication of the review of the criminal justice (community sanctions) Bill 2014, a Bill that would dramatically expand alternatives to custody, give judges a real menu of options and take immediate pressure off overcrowded prisons. Yet, 12 years later that Bill is nowhere to be seen.

The Government knows exactly what would relieve the pressure but it is clearly unwilling to do it. Worse still, it ignored the committee's recommendation to include probation orders in the legislation where community service is not appropriate. That was an amendment I brought forward, which would have expanded non-custodial sentences even further. Again, there is an absence of ambition, no urgency and no vision.

I am conscious that when those of us in the Chamber and at committees speak publicly, as I am now, about prison conditions, it is not a soft-on-crime approach. It is not a non-victim-centred approach either. The evidence speaks for itself. Almost seven out of ten people who enter our prison system will reoffend within three years. People who go into our prison systems have committed a crime. They have impacted people often in incredibly harmful ways and justice absolutely needs to served but too often that is the outcome for people going into prison. The profile of prisoners has been well demonstrated, including backgrounds, conditions of poverty and poor mental health. We were in Limerick prison a few weeks ago where we met a gentleman on the floor who did not even realise he was in prison, such was the extent of his Alzheimer's disease. Even if we take it as a whole, seven out of ten people going to prison should be the point where the State intervenes to address the factors by which we stop the next reoffending, the next victims being hurt and the next communities being terrorised. Quite clearly, there is no capacity to do that in our prison system, which is crumbling with antiquated architecture, buildings that are freezing cold, has people sleeping on the floor and has no access to proper rehabilitative outputs that could genuinely make prisoners play a constructive part in communities when they come out.

I will turn to counselling records. There is no part of this Bill that exposes the moral limits of the Government more starkly than in what it does to survivors of sexual violence. Right now, defence teams can apply to access survivors' therapy records. We all know that. It is well documented. Everyone across the Chamber, no matter the political colours they wear, accepts that is wrong. These are the notes about when someone finally says the unsayable, when they try to process the violence done to them, where trust and safety are supposed to exist and somehow, our judicial system has decided that those notes, those insights to trauma, those written words that capture probably decades of oppression, victimhood, beatings and abuse are all fair game for a victim's judicial exploitation at trial.

The justice committee heard overwhelming evidence on this and recommended in no uncertain terms, a complete and unconditional ban on the use of counselling records in sexual offence trials because survivors told us and we listened. I do not doubt for a second they have told the Minister also and he has listened too. I accept that completely. These applications are traumatising, they deter reporting and stop people seeking therapy at all. I have said it previously and I will continue to say it. We do not subpoena a priest's confession and we do not demand the notes of a TD's therapist, but a rape survivor's mind is apparently up for cross examination.

We tell women to come forward, we tell them we believe them and then we betray them in the most intimate way imaginable. Yes, I understand there are constitutional complexities, as the Minister said, and he referred to the Attorney General's advice, but the laws of this land are not inscribed on a tablet upon a mountain top. The laws of the land are written down and can be modernised. If it is a requirement that we need a referendum to modernise the Constitution, I expect the Minister to lead on it because we cannot have a scenario where the opposite of justice - the antithesis of justice - happens, which is the re-traumatising of victims, and that is the scenario we have today. If it happens that the Minister's advice is better than the advice some of us will have when we table amendments on Committee Stage, let us modernise the Constitution because this cannot be allowed to continue.

When we talk about the issue of sex for rent, or sexual exploitation for rent, it is the exact same story. We all agree and welcome aspects of this Bill that deal with that unimaginably cruel practice. My colleague Deputy O'Callaghan introduced a number of Bills in the previous Dáil on this. We all agree it is an exploitation and it is wrong. However, when the committee recommended real protections such as extending tenancy rights, regulating platforms and protecting people in informal housing, the response of the Government as a whole and not just simply the Minister was "Well, that is a housing problem", as if anyone in the country has faith left in the Department of housing, the same Department that has delivered thousands of homeless children and whose failures has forced people into desperate situations. We cannot separate sexual exploitation from housing insecurity but the Government has found a way to avoid responsibility.

It is the same with the area of coercive control, which is also dealt with, to a point, in the Bill. I am not going to refer to any particular case that has recently been in the media, but recent cases have demonstrated how far we have to go when it comes to the area of coercive control and exploitation.

Every Part of this Bill tells the same story: pepper spray instead of prison reform; minimal community sanctions instead of a real alternative; half measures for survivors; book passing on housing and the exploitation that exists within that grotesque area of failure; and now procedural gamesmanship on Garda powers. Yet, inside this Bill, we can still see the outlay of a different Ireland: prisons that rehabilitate instead of brutalise; a justice system that protects survivors; and housing that does not force people into exploitation. There is clearly money in our economy. We have the evidence and committee recommendations but we do not currently have a Government brave enough to follow them. The Bill shows everything that Ireland could be but it also shows us we are not there yet until we change the politics that produced it and keep getting legislation that gestures justice while quietly entrenching injustice.

Deputy John Lahart

I am grateful and welcome the opportunity to comment on the Bill.

To remind people how we get to a stage like this in a democracy, people bring forward ideas, concerns or observations regarding how our criminal law system operates. In a political party like mine, Fianna Fáil, we try to take these on board and prepare position papers on them and put those out to expert and stakeholder groups to get their views on them. They then eventually form part of a party political manifesto. Those expert stakeholders will also make their views known to other parties and in this case, they form part of a programme for Government. It is a bottom-up process where ordinary people may express their views on the law, gaps in the law and concerns about perhaps particular laws that need to be amended or some laws that are not actually in place at all and need to be put in place. They become part of a programme for Government. In the case of justice, it is the role and responsibility of the Minister for justice to do their best to implement those laws.

I regard this as an omnibus Bill, where the Minister is trying to successfully bring several issues the Government parties made commitments on in its programme for Government. It is his role to bring those before this House and to enact them. In that sense, it is democracy at work and I welcome the opportunity to contribute to this debate on what I believe is a significant and far-reaching Bill. Is it perfect and is it likely to be perfect? Probably not, and future Ministers for justice will have to come back and do more work and respond to the needs of society as they evolve.

However, it responds to real challenges we face at present in our justice system and delivers on important commitments in the programme for Government. People voted for parties on the basis of what we committed to in the programme for Government. That is why Deputy O'Callaghan is the Minister for justice. It also speaks to something deeper, which is how we as legislators seek to do our best to uphold the dignity, safety and justice for people in our society who often find themselves at their most vulnerable. It also seeks to address the practical requirements around things as normal as licensing laws to try to clarify some of the issues in that regard.

Before coming into parliamentary political life, I practised for a decade as a psychotherapist and I sat with people in moments where they felt broken, ashamed, frightened or unsure of their place in the world. I probably experienced many of those feelings myself. Many of those who came through my door had experienced some kind of trauma, sometimes sexual trauma, coercion or other kinds of emotional impact in their lives. I learned this trauma often happens in silence but the impacts echo through every part of a person's life. That experience has stayed with me and has also, in part, shaped my understanding of the justice system and the need for trauma-informed practices, as well as the immense courage required for victims to come forward. It is from that perspective that I strongly welcome several elements of this Bill, particularly those dealing with sexual offences, privacy and exploitation.

Without getting into too much detail, I want to make a passing comment about the notes of a psychotherapist because they can differ from time to time. In my experience, it is not a diary of every single word a client comes to tell you. You do not record in writing every single word. That is not your responsibility and not why they have come to you. It is your response, how you contain what they are saying, how you respond and how you perceive the impact that this particular experience has had on them, what their needs are as a victim of that particular experience. They are two very brief things I see as the role of a psychotherapist. It is not to write down word for word - almost in evidence or to record in evidence - with a view to this coming before a court. It is doing your best as a psychotherapist in the role to respond and to hear the key things that particular client has experienced.

I know the sacredness of that therapeutic space and it is not exclusive to therapy. The previous speaker referred to other professionals who have what could be considered a sacred or secretive space in which people convey information on the basis that this information will not ever be betrayed.

The law, as the Minister said, governing disclosure of these records was significantly reformed almost ten years ago with the introduction of the Criminal Evidence Act. The intention was a good one, to strike a fair balance between an accused person's right to a fair trial and a complainant's right to privacy. The intention was that a judge, following a proper hearing, would decide whether any part of those records was relevant and ought to be disclosed but in practice, perhaps that is not what was happening. Victims have sometimes felt compelled to waive their right to a judicial hearing, fearing that asserting their privacy might somehow be interpreted as obstructing justice, jeopardising the prosecution, or causing delay. As a result their counselling records, which are sometimes the most intimate words they have ever spoken, have been handed over routinely. This was never the intention of the Oireachtas. The Bill fixes any fundamental flaws by requiring a disclosure hearing in every single case. That is such a positive development. Victims will not have to choose between the privacy of whatever record of their counselling sessions has been kept and the pursuit of justice. As I understand it, a judge will examine the records, the victim will always have legal representation and the court will decide what, if anything, should be shared and under what strict conditions.

I will move on to a number of other issues, one of which has been well covered, namely the practice known as sex for rent. I want to address that deeply disturbing practice and welcome the fact that the Minister is doing his utmost legally to ensure that it is prevented by criminalising two specific actions in this Bill. I support him in legalising the use of incapacitant spray by prison officers. Ireland is one of the very few EU states where prison officers cannot currently use incapacitant spray and the Bill removes that legal anomaly. This is not just to protect prison officers but also to protect other prisoners from aggressive and violent behaviour by some of their fellow inmates. It is a practical and proportionate measure that aligns us with international norms, while keeping the safety of both staff and those in custody at the forefront.

On prison overcrowding and community sanctions, the Minister has gestured towards this a number of times in previous speeches. I agree that for what we would call petty or minor crimes, which are still crimes and which have impacted individuals, we should not be locking people up. It is not just about overcrowding, which is what motivates him. It is also about putting people in jail for what are petty crimes. Clearly such crimes do have an impact and a price has to be paid for them. However, as a society, we probably do not know enough about community service. In my time as a county councillor I was familiar with some community service activities that took place and were implemented by the Courts Service in conjunction with local authorities. These included the cleaning of signage and similar activities. It might be helpful to publish a list of community service activities to make people more aware. That said, I do not want to create a situation where people walking down a street who see road signs being cleaned know that the people cleaning them are prisoners. I am not sure the average citizen has any notion of what community service involves but I support the Minister in that regard.

The DNA analysis in missing person cases provision is also welcome. I want to highlight the Bill's provision enabling the use of advanced DNA identification in missing person cases. Forensic Science Ireland believes that these enhanced techniques will improve the likelihood of resolving both current and historical cases. I come now to what I would call the housekeeping elements of the Bill, one of which relates to outdoor seating for licensed premises. I welcome the regularising of that which will mean that the courts are not taken up with such matters every six months or every year.

I would like to make a suggestion to the Minister now, although I do not think he can include it in this Bill. I have written to him previously about it and I am sure others have done so too. I refer to victims of physical or sexual abuse, often pretty violent abuse, who are terrified when the perpetrators of that abuse are due to be released. I speak of cases where perpetrators have been successfully prosecuted, convicted and have served jail sentences, whether long or short. Sometimes the sentences may seem too lenient but victims are terrified at the prospect of their release. Female constituents in particular have written to me over the years because they were really terrified when they got word that the man who inflicted physical damage on them or a family member was to be released back in to public life in short period of time. They felt exceptionally vulnerable around them. I do not know what we can do as a society to provide additional short- to medium-term protections for victims of crime in those cases. I know, having brought this to the Minister's attention, that it is something that he will look at. It is a live issue for victims of crime, particularly violent crime. I welcome the Bill and thank the Ceann Comhairle for allowing me to participate in this debate.

Deputy Darren O'Rourke

I welcome the opportunity to speak on this important Bill, notwithstanding the well-made points that have been raised regarding its miscellaneous nature and the number and range of proposals and measures therein. The Bill presents itself as progress but on the most contentious issue before us, the use of counselling notes in sexual violence trials, it represents a profound failure of ambition and a direct rejection of the calls of victims, survivors and experts. For years survivors and their advocates have campaigned with one clear, unequivocal demand, which is a full and outright ban on the disclosure and use of counselling notes in these trials. They have spoken with devastating clarity about the reality that the mere prospect of their most private, therapeutic conversations being pored over in court forces an impossible choice between healing or justice, court or counselling. This practice has become the norm with devastating consequences, deterring victims from seeking vital counselling and weaponising their healing process against them. The Oireachtas Joint Committee on Justice, Home Affairs and Migration, chaired by my party colleague Deputy Carthy heard this evidence. They listened and their pre-legislative scrutiny, PLS, report recommended a full ban. What does this legislation offer? It offers a provision that makes a disclosure hearing mandatory in all cases. With respect, this is not reform but a rebranding of the broken and harmful status quo. This Bill, as it stands, does not end the practice but institutionalises it. It strips away the victims' remaining shred of autonomy, the right to say "No" to the request and places the decision solely in the hands of a judge. While we all respect the Judiciary, its members are trained to assess evidence but counselling notes are not evidence. They are third-party interpretive records, therapeutic tools created in the context of care, not legal precision.

The Minister speaks of balancing rights but this proposal tips the scales further against the victim. It tells survivors that their deeply personal journey through trauma, their rawest moments in therapy are now default material for legal scrutiny. It tells therapists that their notes, written to aid healing, may become fodder for cross-examination. This will retraumatise and deter. The Minister points towards possible amendments in relation to the presumption of non-disclosure and the expansion of definitions but I have very serious concerns about anything short of an outright ban. One thing is clear; this legislation in its current form falls far short. It ignores the recommendations of the Oireachtas committee on justice, the calls of Grevio and the united voices of survivors and support services. This section of the Bill is unacceptable and must be fundamentally amended on Committee Stage. We owe it to every survivor who has been forced to relive his or her trauma in the witness box, to every person currently avoiding counselling for fear of these notes being used and to all future victims who deserve a justice system that protects rather than persecutes them. I urge all TDs to support the necessary changes on Committee Stage to finally deliver just such a system.

Deputy Ruth Coppinger

I welcome the survivors, therapists and campaigners who have come to the Dáil today, including those who have campaigned on the issue of an amnesty for same-sex relations crime in the past. I do not know if they are still here. The issue in this Bill that has dominated is that of the use of counselling notes. There are many survivors here today. I cannot mention them all but will mention a few.

Some of those who played a role are here. I will mention Hazel Behan, the only survivor who got to testify in front of the justice committee. That was the Minister's pre-legislative scrutiny. Paula Doyle is here today and has also played a key role in talking to TDs and Senators. I want to mention others who the Minister met. Sarah Grace has campaigned on this for many years and has played a leading role in highlighting this in the last number of years. I know the Minister met Ciara Mangan and Donna McCarthy as well. The Minister has spoken to survivors, but I am afraid he has not listened to what they had to say.

I also want to mention the therapists who have played a key role in the past year in particular on this issue. Barbara Kelly is a psychotherapist and set up an organisation, Therapists Against Harm, on foot of what has happened. Therapists are no longer willing to go along with this abuse of their clients. While one of the previous speakers talked about welcoming this, this is not welcomed by any of the professional bodies. The Psychology Society of Ireland and all of the therapist groups have called for a ban on this completely, as have many others who I will mention again.

I am going to begin with the counselling notes and I will mention other things that are in the Bill. I think it is a shame. Somebody said that the Minister was giving out. We did not say he had to put everything into one law. He can pass laws. Some of these things should not be together and should be distinct. There should be a Bill to outlaw victim blaming and all the abuse and misogynistic practices that are going on in the courts. The counselling notes issue should be dealt with separately. It is too big an issue. It should not be put in with other things that are good in the Bill and that people want to vote for. There are also things that are bad in the Bill, such as the proposal to introduce pepper spray into overcrowded prisons and so on.

I want to mention the counselling notes first. This week, Margaret Loftus stood outside a court and told us that the legal system had done as much damage to her as the violence she faced. It is yet another survivor telling us this. One of the big reasons that people do not bother reporting or prosecuting, and that attrition rates are so low in terms of these trials, are practices like this - people having to have their private thoughts used against them. Every woman in the country is wondering what is the point of prosecuting a case in this country, particularly when they see the likes of what happened this week. Margaret Loftus, who was a garda, could not even get justice. A former woman garda could not get justice against the boys' club in the gardaí. That is what happened.

The Minister spoke about "balance". There is no balance. Sexual violence is nearly an unprosecuted crime. That is the reality. There is so much of it that does not even get talked about or reported and then there is the level that is prosecuted. What about that balance? We need to rebalance in favour of victims and survivors. The Minister is from a barrister background and I fear that he is imbued in the status quo of the Judiciary. I really feel that because he has been told again and again about this issue. It is a rarefied place where there is routine victim blaming. It is male dominated and very privileged. The Judiciary is privileged - I am sorry - and the Minister does not seem to get it.

A number of survivors want me to say that they are annoyed that the Minister continually uses the word "distress" to describe the impact of this. It is a lot more than distress; it is psychological damage. I really fear that he does not get the psychological harm that is done to people as a result of this. They are not damsels in distress. It is a lot more than that. The Minister is bringing in a law on the basis of minimising the damage and he really does not understand it.

I also want to make an extremely important point. The Minister is bringing in a mandatory disclosure hearing and taking any agency away from the victim and passing total agency over to a judge. I know the Minister has great faith in judges, but I do not think the general population has the same absolute faith that he has. Let us look at Canada where this system is in place. The Minister's hope and claim is that when we have these hearings and a judge will decide, there will hardly ever be any demand for these notes. It is not true. They have this system in Canada. They introduced it in 2020. I will give the House the figures for Canada, where the system is more robust. I have not seen the wording of what the Minister is proposing. What is relevant? How is a judge going to decide? Has the Minister any more information? He says he is going to back with some on Committee Stage. He should not have come back with such flimsy stuff a year after this was raised. A defence can ask for counselling records and it automatically goes to a hearing. That is what happens in Canada. Rather than decreasing submissions from defences for records, they have actually increased in Canada. From 2015 to 2019, the years before the implementation of the system in 2020, some 19% of victims had their records asked for. From 2020 to 2024, some 29% of victims had their counselling records accessed. It did nothing to decrease the demand from defences for notes. There is no proof that what the Government is proposing to bring in will work.

I want to give the House more figures from Canada, where there is an ombudsperson for victims. They have done huge research into the role of the judicial process on this counselling notes issue. They surveyed 1,000 victims from 2024 to 2025. I will briefly give the House some idea of the massive psychological damage that something like this counselling notes issue can cause. Some 13% chose not to report to the police because they wanted to take part in counselling. Some 12% of the 1,000 people they interviewed were advised not to speak to a therapist because their private records could be subpoenaed. Some 20% wanted to speak with a counsellor but felt like they could not because their private records would be subpoenaed. The suicide ideation rate was off the charts. Some 13% had thoughts of suicide, particularly in relation to their therapy notes and other things like that, but particularly their therapy notes being accessed. This is a significant issue for people. I really do not think the Minister is taking it on board.

I want to mention one other case. Paula Doyle has spoken about this in public and at the committee. She asked me to particularly mention that after the horrific rape she suffered, she could not touch or hug her children. She felt that she was contaminated and that her body was defiled. She did not want it to make contact with any other innocent person. That is horrific and is the outcome of being sexually assaulted. That was used against her in court because she had said it in therapy. She was asked: "What kind of mother are you if you cannot touch your own children?". Things like the morning-after pill, which she mentioned in therapy, were also brought up.

The Minister has never told anyone where it has been shown that there is any evidential value in these notes. Why do we need this great system? It is purely to find a nugget that can be used to undermine a person's character and to assassinate the character of the victim who is the complainant. That is all it is. I say it is misogynistic because it is mainly women, but I was approached by a man who thanked me for raising concerns about the Bill because his notes had been accessed. This can happen to men. It can happen to child victims of sexual abuse as well. I wanted to stress that because I wonder about what he has come back to the House with. The easiest thing to do was to revert back and take away the waiver. It is not enough.

I want to quickly make a few points on what the Minister could do. There are a couple of ways around this. The Minister could, for example, make these counselling notes privileged. We have loads of privilege in our society and our legal system. I will give a couple of examples. We have privilege for the legal profession, which means there is privilege between lawyers and their clients. We have sacerdotal privilege, which means priests are not compelled to go in front of a trial and outline what was said to them in the confessional.

There is Cabinet confidentiality. Journalists’ sources are confidential. I realise that a person might not have full privilege, but there is full or partial privilege in all of these cases. There is also parliamentary privilege. I can stand up today and say all sorts of things but I cannot be called to court over them. There is also spousal privilege. I am sure the Minister has a huge legal brain, so he can find a way to address this. He just has not been bothered enough. I do not believe it is bothering him as much as it should be.

There is a way to address this within the bounds of our Constitution. The Oireachtas can weigh up the conflict of rights. The Minister mentioned only the right to privacy, but people have other rights. He is restricting his consideration to the right to privacy. Is he telling me that the Irish Constitution states people can be degraded routinely or that victims of crime should be degraded daily in our courts? There are other rights, including rights to access justice, healing, therapy and healthcare. There are all sorts of things. There are competing rights and the Oireachtas could have drafted a law that would have made it very clear where the balance should lie.

I will not have time to go into everything. We know the figures for gender-based violence are off the charts. Dublin Rape Crisis Centre has the highest number of calls. The Garda has also had a high number. Therefore, this is an important issue. I was going to talk to the Minister about other survivors and what they have said but I believe I have made the point about the damage done.

I want to mention therapy briefly, because therapists are disgusted with this legislation as well. Dr. Niamh Ní Dhomhnaill, who is a survivor of rape and a chartered clinical psychologist, has campaigned widely in the past couple of years to get her professional body to come out against the practice of using counselling notes. She has stated that therapy can offer a space to make sense of the pain, confusion and stuckness that trauma creates in us, and also that it is supposed to be a place to explore in safety and without fear of repercussions. This is not possible if you know something you say could potentially be used against you.

The organisations that have said this law should not proceed as it currently stands are Dublin Rape Crisis Centre, the National Women’s Council of Ireland, the Irish Association for Counselling and Psychotherapy, the Psychological Society of Ireland, the Irish Council for Psychotherapy, Therapists Against Harm, Beyond Surviving, Éist, the Oireachtas justice committee, the UN Committee on the Elimination of Discrimination against Women, and the Irish Association of Humanistic and Integrative Psychotherapists. I am sure there are many more. There has been a groundswell of opinion on the practice. People are disgusted when they hear this is happening.

I direct the Minister again to the reasons sexual crime is not reported. There is fear of not being believed and there is shame. The lack of faith in the justice system is a major reason. The Minister could restore some faith by finding a way to put records out of reach. I am disappointed that the Minister has not come back with something more than he has come back with. People are not taking cases for many reasons. One of them is that the system is so traumatic and another is the use of counselling notes. I emphasise that therapy is not linear. You could say something one day and it could be counteracted by how you feel on another day.

Judges are not experts in analysing therapy notes. Why should they be regarded as such? No offence, but many judges are not even receiving training on gender-based violence. It is not compulsory anyway. How are judges supposed to become experts in analysing counselling notes and understanding self-blame, shame and everything else that could be used against victims? The same applies to solicitors and juries. The Minister needs to go completely back to the drawing board.

I want to finish by mentioning some other issues that arise from this Bill, one being that of pepper spray in prisons. We heard testimony last week indicating that 150 prisoners were lying on mattresses in shared cells. Pepper spray is being introduced into that mix. We know from scientific data that if people have weaponry, they are likely to use it. Let us set up a proper prison system where people have space and so on. Many people are in prison because of the likes of a drug addiction, in respect of which they need healthcare rather than imprisonment. It was found in a six-month pilot programme in England and Wales that one in four uses of pepper spray was inappropriate or unnecessary. This shows it will be used in the wrong places.

I want to mention briefly the question of so-called "sex for rent". I agree that the proper term is "sexual exploitation" because of the housing crisis. I think I was one of the first TDs to raise this, not in the last Dáil but in the previous one. I was approached about a particular case. I welcome any law that will make things more difficult for perpetrators. I feel it would be very difficult for someone to take a case under any law because of the imbalance of power between landlords and tenants created by the Government’s failure to deal with the horrific housing crisis over the past 12 or 13 years. Unless that imbalance is corrected, it will remain difficult.

I reiterate that survivors have asked for a vote to be called on this Bill. I understand this is difficult because there are many provisions in it. Some Deputies may want to vote for some elements of it and not for others. However, it is important to send a message to the Government that there is anger and annoyance over the issues that have not been addressed. Therefore, I will be calling a vote at the end of this debate.

We are also calling for action at local level. I see a Fine Gael TD here now, which is great, but nobody from Fine Gael has spoken. A couple of Members from Fianna Fáil have spoken. A process of education is still needed on this issue, particularly throughout the Government ranks. People are coming in to say all sorts of things. This Bill is not the solution that people have asked for. It is not the solution that Dublin Rape Crisis Centre, which probably deals with more victims of sexual violence now than ever before, has called for. It is not the solution called for by those at the front line, including therapists or survivors, so the Minister needs to do a lot better.

Deputy Paul Lawless

This Bill is a mixed bag. There are some positive changes and some technical ones that will add efficiencies and so on, but we have some serious concerns about it.

I commend Margaret Loftus from County Mayo on her bravery. Margaret suffered horrendous domestic violence. She stated to the media this week that the judicial process was as traumatising and damaging as the abuse itself. She is an incredibly brave woman who endured up to 58 court hearings over 13 to 14 years. She fought over so many years simply to have her case heard. The issues with the judicial system in this case are quite extraordinary. First, there was inaction and silence when the case was first reported. Margaret was a member of the Garda and so too was her partner. That is a major issue. I ask the Minister to follow up with the Garda Commissioner to ensure that such cases are taken seriously and that action follows.

Her abuser subsequently went on to be promoted and was even given a firearm in the force. There were hugely excessive delays and relentless court hearings in relation to this case. The bravery of this woman should be recognised and noted. Indeed this case would be worth looking at by the Minister with his officials to ensure no woman should have to undergo such abuse and so many years of fighting for justice.

I want to touch upon other aspects of the legislation. First, I welcome the prison officer safety aspect, which will allow prison officers to have incapacitant spray like pepper spray. What is happening in the prisons is horrendous, with overcrowding and so on. This will be a positive aspect. Anything that helps and protects front-line services and the men and women who go out to do their jobs should be commended. I am concerned by comments in this House that suggested that such a move would be to weaponise the prison officers. That is an extraordinary statement. Prison officers work under incredibly difficult circumstances. In regard to anything that can help them in their duties, we must remember that prison officers are not going to use pepper spray willy-nilly. This should and will be a last resort and I think we should be supporting our front-line gardaí and prison officers as much as possible.

In relation to the sex-for-rent issue, I welcome the change. It is quite extraordinary that we live in a society where the housing crisis has reached a stage where women feel they have to resort to this. We are all familiar with the queues of people looking for rooms. I spoke to a landlord the other day. She said she listed a room in Dublin and had a thousand emails over a 24-hour period. When you see that level of demand, you see the real crisis and emergency situation in which so many people find themselves, particularly immigrants into this country. They are, in many ways, the most vulnerable and susceptible to having to go to such lengths. I welcome that aspect of this Bill.

I welcome the extra protection for survivors in respect of counselling notes. There have been many positive suggestions in the Chamber in relation to going further to protect survivors and to ensure they have their privacy protected as much as possible. There is no doubt that we need to be mindful of the question of constitutionality as well. It is important that we try as best we can for the victims to get the balance right.

One aspect of the Bill I am hugely concerned with is the community service aspect. The Bill outlines that it obliges the courts to consider community service orders for sentences up to 24 months. The current threshold is 12 months. It goes on to say that judges must give reasons if they decide to impose a community service order. In other words, it appears that the Government is directing judges with regard to preferring the option of community service orders. The types of crimes that will be considered here are drug dealing and possession with intent to supply, serious theft, burglaries and assault causing harm. I want to be very clear that drug dealing is not a minor offence. I am very fearful that this Bill would suggest that a person who is drug dealing in a community may be given time with the Tidy Towns, for example. That sends a very poor message.

There are major issues with burglaries and thefts in rural Ireland. I know families who have been terrorised by burglaries. There have been sprees of burglaries in certain areas. I know of a woman who was living on her own in County Mayo but will no longer go back to that independent living, such is the devastating impact of the burglary of her property. The suggestion here is that these people may be given community service orders and I think this is a very worrying move. We must be tough on crime. We must ensure that when individuals perpetrate crimes that have such damaging and lasting consequences on their fellow citizens, they experience the full wrath of the law. Burglary and coming into someone's home has a devastating impact. If we are going to move in this direction, we are ultimately going to facilitate such aspects.

Community service orders have a place but the conditions must be incredibly strict and I do not see that in this Bill. If it is a person's first offence and they have a good, clean record of working and contributing, perhaps we should consider such measures. We will be proposing amendments in relation to this. We want to make sure we do not use this option for repeat offenders. When this story broke, families across County Mayo were shocked. They could not believe it. The consequences may be significant for the Garda Síochána as well. Garda morale is already low and we need to protect and enhance it. If a garda spends a huge amount of time and resources prosecuting a criminal for a burglary at a house, and sees that a lady who was living on her own is terrorised and will not go back to that home, and then the judge turns around and sends him to the local Tidy Towns, that is a very worrying legislative provision. I want to see a provision that ensures this will not be an option for repeat offenders.

Free legal aid also needs to be looked at for repeat offenders. First, free legal aid is not free. It costs the taxpayer. In 2024, it cost the taxpayer €113 million. For repeat offenders, free legal aid should be taken from their social welfare. It is only right and proper. It is quite incredible to think that an individual who shows blatant disregard for the laws of the land can find themselves in front of a judge ten, 20, 30, 100 or 200 times, and each and every time they can avail of free legal aid without any cost to that individual. That is wrong. We must be tough on crime.

I welcome some aspects of this Bill but the aspect in regard to community service orders needs to be looked at. We will be tabling amendments and I hope the Minister will consider them on their merits. I hope we can have progress on this.

Deputy Paula Butterly

There are many aspects of this Bill that I welcome. In particular, in relation to so-called sex for rent, I welcome the protections that will be afforded to people who are victims of such behaviour by ruthless landlords. I also welcome the detail in regard to the complex network analysis, CNA, techniques in locating missing persons. Unfortunately, there are a number of constituents of mine in County Louth who still have family members who are missing and I really hope this is of benefit to them. I also welcome section 31 amending the Schedule to the Bail Act, which will add the offences of coercive control and forced marriage. This will be hugely beneficial and it has been an oversight.

Deputy Lawless made a point that is something I have reflected on in the past. There is merit whereby for serial offenders who are using this kind of revolving door and have had a number of convictions, perhaps we should make them pay back their free legal aid in some way. That is something we need to explore.

I also note the Minister’s comments in his opening statement in regard to the recommendations by the justice committee on the complete and unconditional ban on the use of counselling notes in criminal trials. This recommendation was not made lightly but was a result of consultation and listening to witnesses from various bodies, and most importantly from people – women – who have been victims of sexual violence. These were harrowing stories that no one should ever have to hear, much less have to experience. Their stories recounted how their trauma was compounded by their counselling notes being used against them. Their stories took us right back to the beginning to the actual offence itself, the rape or sexual violence, the detail of it and the number of years they have spent in some cases in counselling. Then there is the fact that not only were those counselling notes used against them, but that the time they lost in having to go over and over that detail from the very beginning retraumatised them, never mind the moment when they had to give evidence in cross-examination.

The presumption of innocence and a fair trial are the cornerstones of our legal system and pillars that I wholeheartedly believe in. They should be guarded and protected at all costs. However, I struggle to understand how the exclusion of counselling notes can threaten these principles. One of the victims set out the whole episode from the moment in which she took the stand and was cross-examined. The first question put to her by the defence barrister was whether she had ever taken the morning after pill. What a question to ask. One would wonder why he was asking this question. However, within her counselling notes, it had been noted that a week after the brutal, vicious rape that she had been subjected to, it dawned on her that she could actually be pregnant, so she went to the chemist and, for the first time in her life, purchased the morning after pill. That was the first question. Within her counselling notes, it was noted that the trauma of the incident had left her feeling so defiled and so dirty that the very thought of her children touching her left her in a position whereby for years she could not hug her own children. The second question by the defence barrister was “Do you hug your children?”

The Minister will be very familiar with the setting and he can imagine sitting in the chair answering questions. You are nervous, overwhelmed and are being traumatised and the jury is looking on at you. The jury is made up of men and women with everyday values. To be asked if you have ever taken the morning after pill and then whether you ever hug your children, when the answer is limited to “No, I can’t”, what is a jury to think? What in a reasonable person’s mind are they beginning to formulate in their head as an image of the alleged victim? The third question was “How are the intimate relations with your husband?” When it was noted that there were none, that was followed up by a comment to the effect that, nonetheless, she had sought the morning after pill. There is a rhythm or imagery there and a notion of what the victim could potentially be. A picture is being formed for a jury by a defence barrister. I would like to say that this story is an unusual story but it is not. It is a story that has been told again and again with some variations or changes but there is a common theme that runs through all the questioning. It is not legitimate questioning, in my view, but it is open to the defence barrister to put these questions in a way that they see fit. However, I do not believe it is fair.

Will the Minister illuminate me? Let me understand how dragging a woman’s reputation through the gutter - that is what we are talking about here - by using her own counselling notes and her innermost thoughts that probably had to be dragged out of her in the first place because of the trauma she was subjected to is fair. How can that be some sort of barrier or tantamount to blocking a fair trial? Can he help me understand how insinuating that a woman as a result of her trauma was somehow a bad mother because she could not hug her children because she felt dirty and, in her words, contaminated could be considered necessary to ensure a fair trial? The manner in which counselling notes are used in criminal trials is not fair in its essence. Often they are not even mentioned or relied on by the prosecution. Therefore, it could be argued that it is only a stick to further beat the alleged victim and is of no real evidential value. Indeed, I believe their very existence in a trial is a step backwards and is reminiscent of the days when we could question a woman’s clothing and behaviour to question whether she was asking for it or not, and offering a defence free of charge to an alleged perpetrator. A fair trial has to be fair to all. If the Attorney General believes that there may be issues of unconstitutionality, then he needs to set out the reasons he believes it is unconstitutional. I believe the Minister needs to work harder and we need to work harder, as does the Attorney General, to find a way to ensure our legal principles remain solid but that our women and men who are subjected to heinous, violent and frankly unforgiveable sexual and violent attacks are never further victimised or harassed by our own judicial system.

The presumption of disclosure as proposed by the Minister does not go far enough. Let me be clear - I have said it before and I will say it again – counselling notes have no place in the courtroom.

Minister for Justice, Home Affairs and Migration (Deputy Jim O'Callaghan)

I thank all 13 Deputies for their contributions this afternoon. I also want to acknowledge the presence in the Gallery of survivors of sexual assault and rape and representatives of survivors and, indeed, representatives of those advocating for a disregard scheme. I hope the debate has been sensitive in terms of what they have had to listen to and I hope it has been in some way illuminating.

Generally when responding to contributions from Deputies, I like to go through them individually and deal with each Deputy’s contribution. However, I think it would be preferable if in my reply I dealt with the issues thematically as opposed to dealing with individual Deputies because there are a few issues that were raised by all of them. I hope that by my not referring to them individually, they are not offended by me not dealing with their individual speeches.

The first broad criticism or comment was that this is far too general a Bill. It is a miscellaneous provisions Bill but the suggestion is that the variety of matters contained within this Bill is far too broad and that I should not be bringing forward a Bill that contains such a wide breadth of issues.

From my perspective as a Minister and indeed from the perspective of trying to achieve legislative change for the purpose of benefiting individuals who need legislative change, a miscellaneous provisions Bill is of huge assistance to me. Others in this House if they become Ministers in the future will become aware that. The real benefit of a miscellaneous provisions Bill is that we know that we can expedite legislative change in a process that would otherwise take a considerable period of time. Deputies are correct when they say that in this Bill there are issues dealing with sexual offences, prisons, community service and other areas in respect of the civil legal system and evidence system. If I was to wait for a broad general Bill, whether it be a Bill on prisons or a Bill on community service, I would be waiting a considerable period of time in order to get that legislative change. The advantage of a miscellaneous provisions Bill is that it is like a train that is on the platform leaving shortly on its legislative journey. If I can get the issues onto the train, I know I will be able to effect legislative change quickly.

The alternative is just not to try to do that. I put considerable pressure on the Department in respect of it. Let us consider, for example, the issue in respect of the disregard changes. I apologise that the provisions are not before Members today but they will be on Committee Stage. If I was to wait for separate legislation to come along and to be prepared in respect of disregard provisions for those who are convicted of historical same-sex offences, I would be waiting a considerable period of time and, being frank, it would take years for it to be effected, whereas by putting pressure on people to get it into the miscellaneous provisions Bill, I can get it done on a much speedier basis. I want to make that general point on the benefit of a miscellaneous provisions Bill.

The predominant issue discussed here is what I am proposing in respect of the counselling notes. I have listened very carefully to what colleagues had to say and, of course, I have read the recommendations of the justice committee after its pre-legislative scrutiny. I will just say something that I think we all will agree on. People may find it difficult to identify that. I think we all agree that the current situation that operates as a result of the Criminal Evidence Act is unacceptable and needs to be changed. At present something is happening that was never the legislative intention of this House. What is happening is that counselling notes are being provided virtually on an ad hoc basis to the defence in criminal proceedings. That was never the intention of this House when the legislation was changed back in 2017. It is my responsibility to ensure that that changes and changes quickly.

I was a Member of the Oireachtas back in 2017, as I believe Deputy Coppinger was as well. The intention of the Oireachtas at that stage was that the law would be changed so that the only type of material that would be provided to an accused in a sexual assault or rape trial would be material evidence which contained evidence that was exculpatory that was directly relevant to the individual concerned who was accused of the offence. The only basis for it was that it was assumed there may be information or evidence within a counselling note that is relevant to the innocence of the accused. That was the only reason this was introduced.

Regrettably now what is happening is that counselling notes are being handed out on an ad hoc basis; that needs to change. Part of the reason they are being given out on an ad hoc basis is that the process that had been put in place by the Oireachtas back in 2017 where there would be a court hearing is now being waived. It is understandably being waived because victims want to get their trials on quickly. They know that if there is going to be a court hearing in respect of counselling notes, that will delay the process. Regrettably there may be delays as a result of the process I am proposing but it is an essential change in order to ensure that the system that exists at present does not continue.

The call from the justice committee and from many Deputies here this afternoon is for the introduction of a ban on counselling notes. I cannot do that. I have to be honest with the people in the Gallery and with the public. I want Deputies to take into consideration what would happen if I did that. If I put in a legislative provision that it should be impermissible to gain disclosure of counselling notes and defined counselling notes in a criminal prosecution, inevitably a person, who is accused of a criminal offence and who said that they had reason to believe there was material evidence within counselling notes, would bring a challenge to that legislation. They would say that legislation has been introduced by the Oireachtas which has made inaccessible to disclosure a category of evidence that has never previously been inaccessible. They would say that there was material within that category of evidence that if it was disclosed to a jury would be exculpatory of the accused. Sometimes we hear people saying it might be constitutional or it may be unconstitutional. I regret to say that if we were to introduce a legislative provision which said there is a category of evidence that can never ever be used in a criminal trial, I think it is fairly clear the courts would say that is unconstitutional. There is nothing else where we say, "You can't have any access to that".

Deputy Coppinger referred to the issue of privilege. On Committee Stage, I will seek to try to change the presumption so that there is a presumption for non-disclosure. In effect, I will give a stronger protection to counselling notes to ensure that it should be the exception that they be disclosed and they would only be disclosed if having looked at the counselling notes, a judge determines there is information in those that would be of real benefit to an accused as it could undermine the narrative of what has been said against him and it would be exculpatory for the purpose of the trial. That is the only way that this should ever have been used. I listened very carefully to what Deputy Butterly had to say in respect of a trial that had been spoken about earlier on. That should never have been brought in. That is not what the statutory provision that we introduced was introduced for.

I ask colleagues to be considerate in terms of what we are trying to do. I will bring in further amendments on Committee Stage. I have to be honest with people and I do not want to mislead people. The Oireachtas cannot ban counselling notes without putting in place a real risk that a subsequent trial involving a complainant and a survivor or victim before the courts would be undermined because a successful legal challenge would be brought against it.

Another issue raised was in respect of pepper spray. Pepper spray is for the purpose of protecting workers, for the protection of prison officers. I believe it will be seldom used.

Community service orders should be introduced. We need to give more options to the Judiciary in respect of penalties that can be imposed upon those convicted of criminal offences. At present we do not. Actually, the fault lies with us in the Oireachtas. Every time we create a new offence, we simply state a fine for a summary conviction, or a term of imprisonment or fine if convicted on indictment. We are trying to give a broader range of options to the Judiciary so judges can take that into account when it comes to imposing a penalty on the individual.

On the Committee Stage amendments, I would have preferred if I had been able to come here with the whole Bill together as opposed to saying some further provisions will be coming on Committee Stage. As Deputy Lahart said, I am conscious I am bringing forward these proposals because behind each individual proposal are people. Behind the counselling notes proposal, there are survivors of sexual abuse and there are victims elsewhere whom I am trying to help.

Question put.

An Cathaoirleach Gníomhach (Deputy Jen Cummins)

In accordance with Standing Order 85(2), the division is postponed until next week's weekly division time.

Dáil Éireann debate - Thursday, 22 Jan 2026

Criminal Law and Civil Law (Miscellaneous Provisions) Bill 2026: Second Stage

Dáil Éireann debate -
Thursday, 22 Jan 2026