Criminal Law and Civil Law (Miscellaneous Provisions) Bill 2026: Second Stage
Dail Éireann — 2026-01-22
============================================================

Jim O'Callaghan (FF), Dublin Bay South

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.

---

Source: Houses of the Oireachtas. Licensed under CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). The Official Report is revised after first publication; the fetch timestamp below identifies the version quoted.

Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/dail/2026-01-22/debate/main
Retrieved: 2026-08-14T04:54:32+00:00
Sitting date: 2026-01-22