Criminal Law, Civil Law and Defence (Miscellaneous Provisions) Bill 2026: Report and Final Stages Seanad Éireann — 2026-07-02 ============================================================ Laura Harmon (LAB), Industrial and Commercial Panel Cuirim fáilte roimh an Aire. As I am conscious that we may have a guillotine at 6 p.m., it is important that we try to get to all the amendments, if possible. I intend to move amendments Nos. 28 to 30, inclusive, and No. 32. From the outset, I am proud of the Labour Party's efforts in relation to this and the counselling notes piece. Ultimately, personally and from a party perspective, we are against counselling notes being used in trials, as has been said by other Senators, survivors and the countless emails that we have received from professionals who are working in therapy and counselling. This is something that we are opposed to. We have put forward alternative mechanisms, which we wanted the Minister to consider. We in the Labour Party have done everything we can from our point of view on this. We have really tried to make this Bill better by working with the DRCC as well and taking legal advice in relation to that. I commend survivors on their bravery in speaking out and contacting us on this matter. There are people like Paula who have spoken out about their experiences. I cannot imagine how difficult that must be and it takes a lot of courage. I want to make the point that the justice system, I believe, is not doing right by survivors in the sense we already have low reporting rates. We already know there is a lot of retraumatisation that takes place when people do report. They seem to face barriers at every step along the way. This is something we need to address as a society. Counselling notes should not be used and weaponised against anybody and I am worried about any chilling effects as part of this. I am also conscious the debate on this legislation has generated significant public interest and interest in the media. I would be very worried about the effects of this the debate and the messaging that is sent out to survivors and to those who are thinking of coming forward if they have experienced sexual violence and sexual assault. I hope there would not be a further chilling effect of people seeking counselling, therapy or support, or to report. I think it is really important. It is important to state as well the amazing work rape crisis centres do across the country and the likes of Women's Aid, the National Women's Council of Ireland and the many support groups that are there. There is support there for survivors but I believe that our justice system needs to do better for them. From the outset, I will speak to a number of the amendments. We believe amendment No. 28 should be a straightforward, uncontroversial amendment. It asks the accused to genuinely make an effort to provide reasons that engage directly with the case at trial as to why the complainant's private records should be accessed. It does no more than this. The proposed criteria set out largely reflect the arbiter's statements in the Supreme Court AM case, which the Minister referred to on Committee Stage as having slightly alleviated the circumstances. In that case the Supreme Court described the operation of the section 19A process as profoundly problematic. Section 19A was not the issue being decided on in that case, however, and so the court's statements are not binding. It is incumbent now on the Oireachtas, as the legislator of the State, to enshrine the basic standards referred to in the AM case into the primary legislation that regulates these disclosure applications. Doing so sends out a clear message to accused persons and defence teams that it is not business as usual and applications to access the most intimate and private notes of complainants must be fully considered and reasoned before being made. Failing to introduce this minimum basic safeguard is incredibly difficult to understand. In regard to amendment No. 29, as currently formulated the Government's proposal would allow the court to direct a record holder to furnish the DPP with the records sought, including counselling records, without survivor's consent and prior to the survivor even being notified of the fact of a disclosure application. This loose approach to the agency, autonomy and wishes of survivors is of grave concern and has been flagged repeatedly to the Minster since the introduction of this current proposal in May. We have provided an easy solution to this in our amendment No. 29 by removing counselling records from the relevant subsection. Amendment No. 30 seeks to insert a stipulation that the court cannot order a disclosure of a record after a hearing unless it is satisfied the information contained in that counselling note could not be reasonably obtained by any other means. We believe this common sense safeguard would provide more protection for survivors by ensuring the bolstering of the presumption of non-disclosure that is contained elsewhere in our amendments. Amendment No. 32 would increase the threshold for disclosure of counselling records to the accused to that of a real risk of an unfair trial standard. In the Government's proposal, counselling notes can be disclosed in the interests of justice. This is the same as the current threshold that applies. It is too low and its retention in respect of counselling notes will facilitate continued routine applications for disclosure in sexual assault cases. While there is reference in the proposed legislation to a real risk of an unfair trial, in substance this is superfluous where the interests of justice standard applies alongside it. Every case that meets the real risk of an unfair trial standard will also qualify for disclosure under the interests of justice standard. Simply put, the proposal should be read as enabling access to counselling records in the interests of justice, full stop. On Committee Stage, the Minister made reference to his reasoning for including the interests of justice threshold by explaining that there are many instances in which counselling notes are of benefit to the prosecution in a criminal trial. However, the legislation proposed does not limit reliance on the interests of justice standard to just the prosecution. The accused and the defence team can just as readily go to court to seek access to counselling notes on the basis they believe they should get access in the interests of justice. This can clearly arise even where there is no real risk of an unfair trial at play. If the Minister intends the accused should only access a complainant's counselling notes in cases where otherwise there would be a real risk of an unfair trial, then the lower standard of interests of justice must be removed in respect of counselling notes. The Minister stated on Committee Stage that his proposals will bring to an end the routine disclosure of counselling notes. How can this be the case if the test for disclosure is such a broad and weak threshold as interests of justice? I intend to move these amendments and again say that we have tried everything we can from a Labour Party perspective to ameliorate this legislation and protect survivors. --- 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/seanad/2026-07-02/debate/main Retrieved: 2026-08-14T04:55:09+00:00 Sitting date: 2026-07-02