It's time to dust off a review of the Offences Against the State Act, writes Carol Coulter.
It is three years since the publication of the report of the committee, set up under the Belfast Agreement and chaired by Mr Justice Anthony Hederman, to review the Offences Against the State Act.
The committee contained legal academics, civil servants and representatives of the Garda Síochána and reported in August 2002.
It considered the legislation in the light of the new situation and our obligations under international human rights law, which had come into existence after the passing of the main Act in 1939.
At the report's launch, Minister for Justice Michael McDowell promised to consider the recommendations of both the majority and the minority of the committee, the latter made up of the chairman, along with Prof William Binchy and Prof Dermot Walsh, who differed from the majority on a number of important topics.
Nothing happened since, but the 400-page report contains much that should be of interest to legislators now that the IRA has stated definitively it is committed to exclusively peaceful means of pursuing its objectives.
The sections of the Offences Against the State Act under which the IRA is an illegal organisation are 18 and 19. Sections 20 to 25 deal with actions that follow from the declaration of an organisation to be an illegal organisation, including the forfeiture of all its property and assets. They also provide for an appeal against an order.
The Act itself does not declare the IRA to be illegal, rather it empowers the government of the day to declare that an organisation is illegal and to make a suppression order. This means that it is an offence to be a member of such an organisation and that its property becomes forfeit to the State.
Section 18 defines an illegal organisation as one which advocates treason; the alteration of the Constitution through violence; raises or maintains an army; advocates the attainment of any objective by criminal or unlawful means; or advocates the withholding of funds from the State.
The committee recommended the repeal of this last item and some modification of some of the other paragraphs, but leaving the bulk of the section intact.
Section 19 empowers the Government to declare an organisation illegal.
Two suppression orders have been made to date: the first in 1939 when "the Irish Republican Army otherwise Óglaigh na hÉireann" was proscribed; the second in 1983, when the Irish National Liberation Army (INLA) was made illegal.
Commenting on this section, the committee said: "These organisations . . . usurped the functions of Dáil Éireann by purporting, without democratic authority, to declare war in the name of the Irish people and have engaged in a campaign of violence.
"Over the years these organisations have frequently resorted to murder, racketeering and intimidation . . . these organisations have been banned principally because they have constituted themselves as private armies which have usurped the authority of the State by engaging in paramilitary violence."
It recommends that the power to declare organisations illegal should continue to rest with the government, subject to the right to appeal to the High Court, which is already part of the Act.
The committee also recommended that the 1939 Act be expanded to ensure that, where appropriate, foreign terrorist groups would be brought within its ambit, though it acknowledged the difficulties in coming up with a satisfactory definition of terrorism.
The Act also makes a number of specific actions, such as the possession of explosives and arms, illegal, irrespective of whether the perpetrator is a member of any organisation.
With its statement of last Thursday, the IRA has declared an end to the activities described by the committee as the reason for its being banned. It is therefore open to the Government to rescind the order made in 1939.
The problem with this is that there have been a number of splits in the IRA since 1939, and the banning order has been held to refer to various fragments, including the Continuity IRA and the Real IRA, neither of which has indicated an end to its activities.
Nonetheless, it is not impossible to devise a form of words that would cover organisations purporting to conduct a war in the name of the Irish people, while allowing the Provisional IRA to continue to exist in some form as a sort of veterans' organisation.
This issue was only one of those dealt with in depth by the review committee. It also considered the continued use of the Special Criminal Court, in the light of the end of the IRA campaign; the use of this court for "ordinary" crime; the rights of suspects to have access to solicitors and the statutory provision for internment.
However, the majority and the minority differed in their proposals on how to reform these different areas.