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Dáil Éireann debate -
Wednesday, 26 Nov 1975

Vol. 286 No. 2

Criminal Law (Jurisdiction) Bill, 1975 [Seanad]: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

I am unable to imagine how this Bill can be made to work in any practical way. In my opinion it is a theoretical legalistic approach to the problem of bringing violence in the North of Ireland to an end. Attempts to operate it can only damage our institutions and possibly bring humiliation upon us. To resolve this problem we, in Fianna Fáil, in a recent statement recommended that a court for the whole island be set up with proper guarantees for the rights of all the people. This can be the first step in the process of bringing about acceptable order and restoring peace in the North.

The first major breach of law in this century occurred in 1912 in north-east Ireland when a minority there prevented the implementation of home rule in Ireland and compelled Britain to give way by inciting a mutiny in the British Army. This was followed in 1914 by the illegal importation of arms into the North of Ireland by the Protestant Volunteers while British law stood by and thus made Britain a party to illegality.

It was this disregard by Britain for any kind of law in Ireland and the injustice of it towards the nationalist population that drove English liberals, like the late Erskine Childers, senior, to engage in similar activities on behalf of the less-favoured Irish. Illegality began under British law in Ireland and can be seen to have continued in the North under British authority after 1921. We have seen repetitions of the same kind of illegality erupting in the North, frequently with the connivance of the forces of law and order in pogroms against the minority there in 1922, 1935 and 1969.

The advent of television exposed the true nature of violence, illegal and institutional, in the North of Ireland. Subsequent events brought about the suspension of Stormont and the negotiations resulting in the Executive experiment in 1974. Unfortunately, as we are only too well aware, violence had taken root on all sides principally because the original illegality permitted in Ireland under British law was never dealt with and exists yet. There have been many efforts to bring about a political settlement in the North but all sides on this House have come to appreciate that militant elements on one side or the other can be most effective in preventing agreement as can political intransigence.

We in Fianna Fáil have called consistently for an end to violence on all sides so that a political settlement can be worked out in an atmosphere of peace. Our record in this respect is both good and consistent but good political efforts have, as in the past, been frustrated and brought to naught. However, positive political endeavour must be pursued despite the setbacks of recent years.

The Sunningdale Agreement, of which this Bill is an unfinished leftover, was a good effort towards creating stable and acceptable political institutions in Northern Ireland. Unfortunately, though, at Sunningdale it was not found possible to reach agreement on security and policing. That problem was sidetracked into a commission in the way that difficult political problems often are. The commission reported in 1974 after extreme loyalists had brought down the Northern Executive. The destruction of the Sunningdale effort after only eight months was another example of British failure to be seen to support the rule of law. In this case illegal action by extremists defined Britain and succeeded. As a result, moderate politicians, both nationalist and unionist, who had had the courage to compromise and attempt a worthwhile experiment were let down by Britain and many of them, especially on the unionist side, have since left public life.

If the Northern Executive had been able to continue its role and if the findings of the Law Commission had been the subject of evaluation by the parties involved directly, I believe that their judgment would have ensured the emergence of a realistic understanding of the basic problem of security and policing. In the event neither the views of the representatives of the minority in the North nor of Fianna Fáil here were sought. Consequently, we have before us now what we regard as an impractical Bill which is taking up the time of the Dáil.

It is inappropriate to try to deal with the problem of violence and security by way of a Bill of this kind, a Bill that cannot be effective. Also, it would be wrong to ask the security institutions of our sovreign State to engage in a legal involvement of this kind. I say this because of the unstable, politically unacceptable position that exists in the North. I consider the Bill to be even more undesirable in a situation where political elements there are refusing to come to terms with one another.

The Government are asking the Dáil to involve our Garda and Defence Forces with British forces which this State is at the moment charging before the International Court on Human Rights. The Government are asking this at a time when the British have admitted that some of their military personnel are being investigated for, allegedly, planting evidence on arrested persons in the North. I submit that such involvement on our part would bring our institutions into disrepute. We have put forward an alternative solution to this problem which, if it were accepted and put into operation, should help to bring to an end violence in Northern Ireland. I appreciate fully some of the arguments that have been put in relation to this question but as I understand the position we are the sovereign authority for the Twenty-six Counties and Britain is the sovereign authority, as recognised internationally, for the area of the United Kingdom. Therefore, it is within the power and the competence of the British Government to enact any legislation they wish relative to the area of the Six Counties of Northern Ireland. It is almost wholly in the North of Ireland that the violence is taking place. While I would support any practical and, of course, constitutional means to help to bring violence to an end, I would submit that so far as the Republic is concerned the means for dealing with illegal elements and subversives, as contained in the Offences Against the State (Amendment) Act, 1972, go further than any democratic conmunity has gone in this regard, certainly than any I know that is as democratic as our State is. I might add that the measures contained in that Act go further than anything that has been adopted in Britain.

The seeds of violence arise from the undemocratic situation that was created in Northern Ireland and they continue to thrive there. I believe that one of the solutions is to convince intransigent politicians that they must sit down together with their fellow elected representatives and agree to create acceptable institutions. I also believe that this can be done without the surrender by anyone on any side of aspirations or traditions. I believe that there is an obligation on people, politically elected, to represent the Six County area of Northern Ireland, to provide structures that can be, in reason, supported by all elements of the population that live in that area.

Before the adjournment of this debate last Thursday I said—I would like to repeat it now—that the first section of the statement made by my party on Northern Ireland totally rejected the use of force as a means of achieving unity. All of us know that until there is an end to violence there can be little hope of achieving reconciliation on this island. I totally repudiate the violent deeds that are being committed in the name of Ireland. Those who have committed these acts have no mandate. I believe that those who support and encourage them have equal responsibility with the participants. There can be no benefit to Ireland from such brutal and inhuman actions causing similar and even more inhuman actions such as we have seen in recent years.

I should like to repeat something I said before the Adjournment last week, that the statement on the northern situation issued by my party recently has been the subject of misrepresentation and hasty judgment. When Deputy Harte spoke last Thursday he said that Fianna Fáil had called on Britain to withdraw from Northern Ireland. He also said that Fianna Fáil had called for a declaration of intent by Britain to withdraw. If the Deputy was referring to the statement issued by Fianna Fáil, that statement did not call for British withdrawal nor did it call for a declaration of intent. The word "intent" was not used in our statement. In my opinion, having experience of a very deep and personal nature, going back over the past eight or nine years, of the Northern situation and going back much further than that to my childhood, when I was in Belfast during a pogrom in that city, and certainly in the light of my assessment of what can make people react, there can be in certain circumstances connotations of threat in the word "intent", whereas the word "commitment" used in the document issued by my party can be seen by reasonable people as an undertaking or a promise to fulfil a moral obligation.

I believe our recent statement can be seen to be consistent with a statement by Mr. de Valera in this House in 1949. I should like to quote from Volume 115 of the Official Report of the 10th May, 1949, column 813. The debate was on Protest Against Partition. Mr. de Valera, in the course of his speech, said:

If this thing——

meaning partition

——is to be ended peacefully it should be ended by British action to start with. Britain has done this thing and Britain ought to undo it. They have the power to do it. If they really want to, they can tell this minority in our country, that is not a fifth of the population of this country and not a fiftieth of the population of Britain, "We are not going to support you in your claim for privilege. We are not going to permit the small minority of the two peoples to continue to set the two peoples by the ears and to stir up and continue the old antagonisms between them."

Mr. de Valera went on later in his speech to say:

I tried in my time to secure from a British Prime Minister speaking for the British Government and the British people a declaration to the effect that they wanted this Partition of our country to end: that they desired it to end: that they would use all their good offices to bring it to an end, and they would use their influence to bring it to an end. If they were sincere a declaration of that sort would not be too much to expect. We have never got that.

So far, I have heard very few people except within Fianna Fáil discussing our statement in context and on its merits. Coalition spokesmen should study the statement carefully and in an unbiased way before they contribute to the debate on this Bill. If not, I fear they may run the risk of becoming politically irrelevant. They should seek better advice than they appear to be getting from the Minister for Posts and Telegraphs. What has happened in the past few weeks in regard to our statement is that some politicians have been so blinded by their prejudices that they are prepared to use any means to discredit Fianna Fáil. It is prejudice of this kind which perhaps blinds Coalition politicians to the realities of Irish politics.

The Minister for Posts and Telegraphs could not get to the Press quickly enough to say that our statement put Fianna Fáil in line with the Provisional IRA. I read in a newspaper that statement the day after our statement was issued, and in the Dáil last Thursday the Minister said that Deputy Lynch's recent statement, according to Mr. Gerry Fitt, had placed Fianna Fáil in the Provisional camp. The Minister conceded that Mr. Fitt's reaction might have been too emotional. How right the Minister was. Even the best of us can lose our heads at times. When the Minister spoke on Thursday he quoted from the transcript of a radio interview I had with Radio Éireann. The Minister seemed to think that there was something inconsistent about what I had said and what now appears in our statement.

Those of us who have any experience of being interviewed know that it is the practice of radio interviewers to put difficult questions to the interviewee and, of course, it is the duty of any person being interviewed to behave with prudence and not to allow himself to be trapped into saying something he ought not to say, especially if it happens to relate to anything like the tension-filled atmosphere of the North of Ireland. On that occasion, as the Minister quoted, I was asked if I favoured a British statement of intent to withdraw from Northern Ireland. Apart from the obvious fact that off the cuff, out of context statements can do damage, the date of that interview was 9th September last. As I am sure anyone who reflects will recall, during the previous three days there had been very crucial meetings between paramilitary groups and the Loyalist Convention parties in the North of Ireland. The possible, though only faintly possible, success of the Convention was at stake. An irresponsible or foolish remark could have done harm in the emotion-filled atmosphere of that time.

In addition, some months before, I had advised, and if my recollection is correct I had stated publicly, that the Convention parties should be left to themselves to see if they could come to agreement. I had also recommended the end of October as the best time to issue an up-dated statement of Fianna Fáil's attitude towards the Northern situation.

We all know, goodness knows we have had to learn the hard way, that foolish talk engaged in here and outside this House in different parts of the country can do damage. I have side on a number of occasions that it is very easy to talk if you are far from the North, perhaps to talk at the expense of some unfortunate person's life. On the other hand, a time comes when a serious obligation rests on people, particularly those elected. Many of us in the past few years have done everything we could and have talked to as many people as were willing to talk to us in order to try to calm the situation in the North of Ireland and bring people to agreement, have made efforts, not entirely because we here may happen to speak frequently of an ideal, but because of common humanity, because of the injustice to people on both sides of the Northern divide, those who do not want to be engaged in and dragged into conflict, who do not want to lose their lives, as lives are being lost there—it is because of that situation that at times it is necessary to speak in the hope that someone will listen and in the hope that those listening will believe one is trying to be responsible and trying to fulfil a serious obligation. When the attitudes in the Convention were clear and before the issue was sent to the British Parliament, we believed that the Opposition here should make known their attitude and views quite clearly; sometimes the Government are not free to talk.

The drafting of our statement commenced much earlier than people think and on the occasion of the interview on 9th September last I was not prepared to allow the interview to lead me into premature statements regarding the attitude of Fianna Fáil towards the Northern situation. To me the Fianna Fáil document is a clearly thought-out statement, consistent with the aims and ideals of our party. It represents a general consensus of the thinking of the front bench and of our parliamentary party. A good deal of time was given to discussing it and, while there was healthy discussion, there was no basic or fundamental disagreement on our statement. There was complete agreement on the need for clarification of our attitude, particularly in the light of the serious disagreement emerging from the Convention—because that disagreement I believe—and most of my colleagues share this belief—can have very serious consequences not alone for the minority and the majority in the Six Counties but also for ourselves and for the people of Britain.

There was agreement in our front bench that Britain, with whom the final decision rests because she has the authority with regard to the North of Ireland—whether we like it or not —should be left under no illusion regarding our attitude towards the Northern problem. I do not wish to take up too much time in the House over a statement issued by us but sometimes one finds oneself in a situation where it is necessary to clear up confusion. There was some difficulty due to a by-election in Mayo. The timing of our statement related to the Convention and was intended to be issued at that time. If I remember correctly, that tentative decision was taken long before a vacancy arose in the constituency of West Mayo. However, the by-election made it difficult to communicate in advance, which one likes to do, and in this case the final draft was not passed until the afternoon on which the statement was made public. Perhaps because of those circumstances, some of those who spoke too hastily on radio or to the Press may be excused. Others tried to make as much mischief and confusion as possible for political motives.

My party leader has referred to efforts to compare this party— which represents almost the entire Opposition here at the present time—as being, as some foolish people have suggested, on the side of or in line with the so-called Provisional IRA. Deputy Lynch has said that this should be treated with the contempt it deserves. I have lived in Ireland for a long time and I know the foolish things people can believe.

To me it is inconceivable that anybody would attempt, as has been done in the past few weeks by some elements in the community, to equate this party with any of the militant elements who are preventing political agreement and progress, not alone in the Six Counties but throughout the land. It is those violent elements, who believe they have the right to be a law unto themselves, who are blocking the progress of this nation, that is of all the people of Ireland. Whatever may be the political fortunes of the various political parties, for the sake of the people who live in the whole of Ireland, I hope at least those who are involved in constitutional politics in the Twenty-six Counties will refrain from mischief-making which could have very serious consequences for other people who live in the North, because if people began to believe that a huge constitutional party like the present Opposition party had anything to do with the sort of thing that is going on, not only in Northern Ireland but in Britain, the consequences could be serious.

I have said that we believe there would be an obligation on us to make things clear in relation to the situation in the North in the light of the experience since August, 1969, to go back reasonably far. So far as we in Fianna Fáil are concerned, the position as we see it now is as follows: during this present year, tremendous efforts to reach political agreement have been made by the hard-pressed representatives of the minority within the Six Counties; intransigence and fear—unwarranted fear but fear nevertheless— amongst the majority in Northern Ireland have frustrated the best efforts of those elected politicians who were trying to reach agreement. Now we see what amounts to total intransigence emerging from what is described as the loyalist or UUUC side of the Northern Convention. The issue is now going from the Convention parties to the Westminster Parliament and it is at that point that we have felt obliged to make our attitude towards the Northern problem clear, to all British political parties, to the British Government and to British politicians who are elected on the island of Britain. If continuing intransigence means that there can be no hope of a political settlement between Northern political elements, then we have the right and the obligation, I believe, to bring the original infringement of democratic rights in Ireland into open debate, not in order to frighten anybody but in order to make some effort to break this log-jam which is preventing the sanity of political agreement.

The problem of Northern Ireland itself stems from the original wrong to which Britain was and is a party. In that sense, it is obvious where the solution lies, and I am not talking about sudden withdrawals or any of the kind of things that people try to frighten people with. The reason an open debate on this question is necessary and can be useful at this point is that things have changed since 1921. In 1914 and subsequently, I believe that it suited British interests, and probably her strategic position, to be a party to the unnatural and undemocratic division of Ireland which gave permanent electoral power to Unionists in the north-east. I have said before and I have made no secret of my views, even in talking to Northerners of all points of view, that it is a fallacy to talk about majority right and democratic right in a situation in which the original majority was created by drawing a border around the Six Counties, instead of nine, ten, 12 or 15, and I have said on occasions to some of these people that if they had had the sense of discipline and the common sense to have treated the national minority which is part of the national majority within the Six Counties in the same way as they themselves would have liked to have been treated in a united Ireland, if such a thing existed, the Northern problem would have ceased to have been a problem long ago.

Unfortunately, that sort of action was not taken and we still have the problem to which speakers on both sides of the House referred, of unreasonable fear and suspicion. We still have the situation in which there is a vested interest virtually, a political vested interest, amongst Northern Unionists and Loyalist politicians to persuade their following that there is a threat of some kind from what they call the South. All of us know that no elected representative of this part of Ireland supports violence or is prepared to support violence. Yet one finds oneself from time to time in the situation in which it can take literally hours on end to persuade somebody that things are as they are here and not as they believe them to be.

However, I am speaking mainly of the change that has taken place since 1921. I believe that today in the mid-seventies it no longer suits Britain to bear responsibility for the Partition of Ireland. On the contrary, her immediate and long-term interests would be much better served by encouraging an end to division. We believe that if Britain does that it will help people who are in entrenched positions in the Six Counties, particularly heavily populated loyalist areas and the politicians representing people in those areas, to take a fresh and more normal look at the situation in what, after all, is for them and for us a native land.

At this point I believe we are right to make our attitude clear, not in any forceful way but in the normal, political democratic way. If we were to deny our own aims and aspirations which are peaceful ones because elements that have no right to engage in physical force are doing so we would be guilty of cowardice. We must try to get Britain to make it clear to northern politicians that she no longer needs to have people in the northern part of Ireland claiming that part of Ireland for Britain. We are trying to look a little ahead and get some intelligent political thinking and planning going and get into a dialogue, if possible, with politicians, elected personnel of the Unionist tradition.

One can talk indefinitely and make condemnations of violence. It does not seem to make much difference: perhaps some of us are listened to. From experience we have seen that violence begets violence and if people take the right to kill into their own hands they are automatically causing other deaths because each action leads to a reaction. We have seen inhumanity and barbarism. All I can say to these people is: you cannot support inhuman action and then hope to be human again next week, or next year.

Of the Bill itself I would say that attempting to patch up the rule of British law in Northern Ireland without a quid pro quo which would put the problem where it has always belonged, namely, in the context of the whole island of Ireland, will not only fail for the same reasons that Stormont failed but I believe it will further confuse the political process necessary to reconciliation. I think it would thus aggravate the festering wound of political instability that exists in the North. This Bill may in the long run risk increasing terrorism possibly including a spill over into the South because of its unworkability and its failure to come to terms with the need for a realistic, legal solution for the whole of this island.

The Leader of our party has put forward an alternative. I think that alternative should be explored if only in the light of the fact that this Opposition Party has said that it genuinely believes that this Bill is not the way to go about the job. The alternative should be considered by the Government despite the fact that the suggestion has come from the Opposition side of the House.

Only a very small part of the remarks made so far in this debate by the spokesmen for the Opposition have dealt with the allegation that the Bill now being considered is unconstitutional; the criticisms of the Leader of the Opposition take up only two columns of the Dáil Debates; the Opposition spokesman on Justice did not refer to the subject at all. The failure to adduce any detailed reasons to support the allegation of unconstitutionality means that a reply to this part of the Opposition's case against the Bill need not take up too much of the time of this House.

The suggestion that the Bill now before the House infringes Article 3 of the Constitution is based, as I understand it, on the following argument. It is pointed out that Article 3 provides that the laws enacted by the Oireachtas are to have the like area and extent as the laws of Saorstát Éireann; that the laws of Saorstát Éireann only extended to the Twenty-six Counties, that the Bill we are now considering extends, as appears from its Long Title the criminal law of the State to acts done in Northern Ireland; that clearly, therefore, this Bill contravenes the provisions of Article 3 of the Constitution. It is important to understand precisely what this contention is. It is not that the Oireachtas has power generally to legislate with extra-territorial effect but has no such power in relation to Northern Ireland. It is not that the Oireachtas has power to legislate with extra-territorial effect in respect of its nationals abroad, but has no such power in respect of aliens. It is, quite simply, a contention that the article precludes the Oireachtas from enacting legislation which would make certain acts done outside the State offences under our domestic law. It is an assertion that the Oireachtas has no power to legislate with extra-territorial effect.

The suggestion that the Bill now before the House infringes Article 3 is based on a fundamental misunderstanding of a common-place principle of international law; on an argument which ignores the effect of the last five words of the section (which expressly refer to power of the Oireachtas to legislate with extra-territorial effect); on a misreading of the Bill.

Every sovereign independent State has power to legislate with extra-territorial effect. International law makes a distinction between the jurisdiction which a State has to enforce its laws within its own territory, and the jurisdiction which a State has to prescribe that certain acts done abroad are contrary to its domestic law. Two quotations from recognised authorities will explain the distinction. The first is from O'Connell "International Law", second edition, page 602:

A State has jurisdiction primarily, though not exclusively, in a territorial sense, but it also has a jurisdiction over persons which is not restricted territorially. In most, though not all instances, this personal jurisdiction is founded on the fact that the subjects of it are nationals of the acting State. Though they may be physically within the territorial jurisdiction they may not only be subjected to the laws of the national sovereign but also proceeded against with respect to their breach. Should they be at the relevant time physically within the territorial jurisdiction of another State they may be subjected to the laws of their national sovereign, but the latter has no jurisdiction to enforce those laws. When speaking of jurisdiction, then, one must be careful to distinguish the jurisdiction to enforce from the jurisdiction to prescribe. The former is inherently territorial, the latter inherently personal. Whereas a State may not act within the territory of another State it is by no means true that it may not catch persons within that territory in the net of its legislation.

The second is from Schwarzen-berger "International Law", Third Edition, page 185:

Failing permissive rules of international customary or treaty law to the contrary, a State may not exercise its jurisdiction either outside its territory or in the territory of another State.... Inside their own territory, however, States are free to act as they please unless international law sets limits to their freedom of action. This even implies that the legislation of a State or judgments of its courts may extend to persons, acts or property outside the State's own jurisdiction. So long as the actual exercise of jurisdiction in concrete instances takes place within the territory of the State concerned such activities are lawful. In the formulation chosen by the World Court in the Lotus Case (1927) international law does not prohibit a State from exercising jurisdiction in its own territory in respect of any case which relates to acts which have taken place abroad.

By this legislation the Oireachtas will not be enforcing its laws outside the State's territory; it will be prescribing that certain acts done outside its territory are contrary to its domestic laws; and persons who infringe the law which the Oireachtas will enact will be proceeded against if they are within the jurisdiction of the State. What the Oireachtas will do in this piece of legislation has been done on several occasions in the past. Section 3 of the Geneva Conventions Act, 1962 provides that if any person, whatever his nationality, commits whether in the State or outside the State a grave breach of certain articles of the Geneva Conventions scheduled to the Acts he shall be guilty of an offence, and when the offence is committed outside the State he may be proceeded against in any place within the State. Section 38 of the Extradition Act, 1965, provides that where an Irish citizen does an act outside the State which constitutes an offence for which he would be liable to extradition but for the fact that he is a citizen he shall be guilty of a like offence and be liable on conviction to the like punishment as if the act had been done within the State.

Section II of the Air Navigation and Transport Act, 1973, makes it an offence, subject to certain qualifications which need not be referred to now, for a person on board an aircraft in flight anywhere to seize it by force and imposes a punishment of life imprisonment. What is now claimed is that the Oireachtas has not the power to do what it did on previous occasions. What is now suggested is that not only is the present Bill unconstitutional, but previous legislation by which the Oireachtas legislated with extra-territorial effect was unconstitutional.

The argument is, as I have said, based on a misunderstanding of the right which all sovereign States have to legislate with extra-territorial effect. It is also based on a reading of Article 3 which ignores the last five words of the article. Opposition spokesmen have quoted in the course of their remarks only portion of the article. The article provides that the laws enacted by the Oireachtas "shall have the like area and extent of application as the laws of Saorstát Éireann" and it goes on to add "and the like extra-territorial effect". Thus the article explicitly provides that the laws which the Oireachtas will enact are to have the same extra-territorial effect as that enjoyed by the laws of Saorstát Éireann.

No one has suggested that Saorstát Éireann had not power to legislate with extra-territorial effect. Its right to do so was beyond question. If it had, then this article specifically provides that the Oireachtas established by the 1937 Constitution had the same power. Only by ignoring the last five words and by pretending that they do not exist can it be suggested that this Bill contravenes Article 3. This article was, in fact, defining the territorial limit of the State by reference to the area of jurisdiction of its laws. It is clear that the last five words of the article were inserted to avoid the very suggestion that is now being made and by the explicit reference put beyond doubt the power of the Oireachtas to legislate with extra-territorial effect.

An examination of the Bill establishes quite clearly that no attempt is being made to enforce the laws of the State outside its jurisdiction. Section 2 will make it an offence for a person to do in Northern Ireland an act which if done in the State would constitute one of the offences specified in the Schedule and such person can be proceeded against in respect of such offence only in the State. Section 4 will make it an offence for an Irish citizen anywhere outside the State unlawfully and maliciously to cause an explosion as specified in the section. Again, the offender can only be proceeded against in the courts of this country for an offence under this section. This Bill, therefore, when enacted will permit the exercise by the State of its jurisdiction to try persons who have infringed our law by committing acts outside the State's jurisdiction forbidden by it.

The implications of the Opposition's interpretation of the article are startling, and help to establish its invalidity. If the Oireachtas established under the 1937 Constitution had no power to legislate with extra-territorial effect, then the powers of the present Oireachtas are more restricted than those enjoyed by the Oireachtas of the Irish Free State. It is inconceivable that this was the intention of the framers of the Constitution.

If the power to legislate with extra-territorial effect does not exist, not only is the legislation to which I have referred unconstitutional, but also the government of the day had acted wrongly in authorising the signing and ratification of the conventions referred to in those statutes, as the Oireachtas had no power to carry into effect the international obligations undertaken in them to take jurisdiction to try offenders for certain breaches of the conventions committed outside the jurisdiction of the State. Nor is the State competent to enter into future international Conventions which would impose an obligation on this State to try persons who breach the convention outside the territory of this State. Furthermore, the interpretation now urged would result in our courts having jurisdiction to try certain offences if committed outside the territory of the State provided the offence was one created by an Act of the British Parliament which is still law by virtue of Article 50 of the Constitution. This anomalous situation would result because such laws were not enacted by the present Oireachtas, which has no power, according to the argument to legislate with extra-territorial effect but by a Parliament that had such powers. It must be obvious that an interpretation which would produce the results to which I have referred must be an erroneous one.

Finally, I think Deputies should bear this further fact in mind. In considering the constitutional objections raised to this Bill it should be remembered that the Bill gives effect to the proposals of the Law Enforcement Commission, which are detailed in chapter 4 of the commission's report. The commission considered a proposal, termed the "extra-territorial method" by which additional extra-territorial jurisdiction would be conferred upon the courts of each jurisdiction. This proposal is summarised as follows— (Paragraph 17):

Under this method each legislature would confer upon its own domestic courts jurisdiction to try under domestic law certain offences when committed in the other part of Ireland. These offences will be set out in the Schedule, and the legislation would provide that these offences when committed in one part of Ireland would be offences under the law of the other part. The domestic court of one jurisdiction would not have any judicial powers in the other. The only way in which a court would exercise this extra-territorial jurisdiction would be trying a person, arrested within its own territorial jurisdiction, for a scheduled offence committed in the other jurisdiction....

This method has been adopted in the Bill before the House.

In the following paragraph the report outlined procedures which could be followed to give effect to the principle proposed. In paragraph 32 the members of the commission expressed the opinion that the extra-territorial method could help to solve the problem of bringing to trial those accused of politically motivated crimes of violence and added "We are agreed that there are no legal objections to its validity".

This House can weigh the views of the distinguished members of the commission as to the legality of their proposals against the arguments of those who challenge the validity of the Bill. Any reasonable examination of those arguments will leave Deputies in no doubt as to who is right.

It has, further, been suggested that the Bill infringes Article 38 of the Constitution which permits the establishment of the special courts in the circumstances set out in subsection 3 of the article. It is, apparently, claimed that the special courts established under this article could have no jurisdiction to try offences committed outside the territory of the State. The lack of jurisdiction arises, it is claimed, because special courts can only be established in circumstances which relate to conditions within the State. Accordingly, such courts cannot try persons for acts which are committed outside the State. In relation to this argument it should firstly be pointed out that the Bill gives no jurisdiction to a special court to try any offence. The Bill proposes to create a number of offences but there is no requirement in the Bill that a person charged with any offence under the Bill should be tried before a special court. The Bill does, of course, provide machinery for taking evidence in Northern Ireland in the event of a trial before a special court, but in no way enables a trial before a special court to take place.

If it is unconstitutional for a special court to have jurisdiction to try a person in respect of an act committed extra-territorially, such unconstitutionality would not arise from any provisions of the Bill now being considered. A moment's thought will demonstrate that the decision of a Government which would give such jurisdiction would be perfectly valid.

The steps relating to the establishment of a special court under the provisions of the 1939 Act and the granting of jurisdiction to such a court should be recalled. Firstly, Part 5 of the Act must be brought into operation by a proclamation of the Government made after the Government are satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is necessary for this part of the Act to come into force. Such a proclamation was made on 26th May, 1972.

When the Act is in force the Government may declare certain offences to be scheduled offences. It does so when it is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to offences of any particular class. An order was made scheduling certain offences on 30th May, 1972. The special court will then have jurisdiction to try such scheduled offences. If this Bill is enacted, it is quite easy to imagine circumstances in which the Government could quite properly conclude that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in the Republic in relation to the offences contained in this Bill. Terrorists who carry on their illegal activities throughout the whole island of Ireland are just as likely to intimidate a jury trying here one of their members for an offence committed in Northern Ireland as for an offence committed in the Republic and the inadequacy of the ordinary courts to secure the effective administration of justice and preserve public peace and order here could be shown to exist irrespective of the place where a member of a terrorist organisation commits the wrongful act. Neither the Bill before the House, therefore, nor any Government order which by declaring all or any of the offences under the Bill to be scheduled offences gives jurisdiction to a special court to try the alleged offender, contravenes Article 38.

Neither the mover of the motion before the House, the Leader of the Opposition, nor the Opposition spokesman on Justice who followed him adduced any arguments in the course of their remarks to support that part of the motion which claims that the Bill infringes the European Convention on Human Rights. To ascertain what possible basis there could be to justify that part of the Opposition motion it is necessary to refer to what the Opposition spokesman in the Seanad said. It would appear that reliance is placed on Article 6 an article which lays down certain minimum rights which a person charged with a criminal offence has. The rights of a person charged with an offence under this Bill and which are specified in the Convention are fully protected by the Bill and by the laws of the State.

The Convention provides that an accused has the right to "defend himself in person or through legal assistance of his own choosing" (sub-clause (c) of paragraph (3) of Article 6); and further, that an accused person has the right to "examine or have examined witnesses against him" (sub-clause (d) of the same sub-clause). If evidence is taken in Northern Ireland under section II of the Bill the accused has the right to be present whilst this is being done. If he does not avail of this right, counsel and solicitor on his behalf are entitled to be present on his behalf at the taking of the evidence. The accused or his legal advisers, are entitled to cross-examine any witnesses. The suggestion of incompatability between the Bill and the Convention can only be made by those who have not read the two instruments, or by ignoring those parts of the Bill which do not support the allegation which suggests incompatability. The absence of argument to support this part of the Opposition's motion is a tacit and eloquent acknowledgement of its invalidity.

An argument based on Article 5 of the Convention fails to take into account the nature of bail in this country and the effect of the provisions of the Bill. This article declares that every arrested person is entitled to trial within a reasonable time or to release pending trial. If it should happen that a person accused of an offence under this Act is granted bail and if evidence under the machinery of section II is being taken, he can choose to be present when evidence is being taken. If he decides to be present, he will, in effect, be surrendering to his bail in the ordinary way as when a trial takes place. If he chooses not to be present, he will remain on bail. In either event no infringement of the article occurs.

The degree of consideration that the Opposition has given to the legal aspects of this Bill can be measured by two small but significant aspects of the debate so far. The Minister's opening speech in this debate referred to portion of the judgment of the Chief Justice in the Haughey case. The part quoted related to the opinion expressed by the Chief Justice that in a criminal trial evidence must be given orally, but that a statute might authorise otherwise. The Leader of the Opposition who followed the Minister said at column 1731 of Volume 195 of the Official Report that he had not had an opportunity to check what the Chief Justice had said and that later speakers would have an opportunity of examining the Minister's contention against the report. The quotation given by the Minister to this House had, in fact, been given also by him in the debates in the Seanad at column 395 of Volume 81 of the Official Report. It is, I think, a fair comment to say that it does not demonstrate a very great level of research into the legal problems which the Opposition purport to find raised by this Bill if the Leader of the Opposition is taken by surprise by a reference to an important legal authority which had been quoted several months previously in relation to the Bill. Secondly, I think reference should be made by me to the fact that the Leader of the Opposition took some time off to criticise the drafting of this Bill and to point to what he termed at column 1721 of Volume 185 of the Official Report of the Dáil as a "glaring error" in section II. That section begins by referring to the trial by a special court established under Article 38.3.1 of the Constitution, and it was claimed that such courts are not established under Article 38 but by the Offences Against the State Act, 1939. The criticism is a minor one but that it has been made is revealing. The draftsman followed the normal drafting precedents—a precedent to be found in a later section of Article 38 itself if trouble had been taken to examine the article. That section employs the very words which are now described as a "glaring error". Section 6 of Article 38 provides as follows: "The provisions of Articles 34 and 35 of this Constitution shall not apply to any court or tribunal set up under section 3 or section 4 of this Article." As the Constitution refers to a court set up under section 3 of Article 38, it is hard to justify criticism of the draftsman who in this Bill referred in a similar way to such courts. If Members wished to see further precedents for the method here adopted they could consult Article 37 of the Constitution or section 6 of the Ministers and Secretaries Act, 1939, or section I of the Imposition of Duties (Confirmation of Orders) Act, 1957.

Other points made in opposition to this measure have been dealt with by other speakers from this side of the House. I wish, therefore, briefly to make only a couple of further comments. An all-Ireland court could be a most useful institution. It is one which it is hoped may in the future be established in this island, just as it is hoped that a Council of Ireland will also be established. But no evidence has been adduced to show that such an institution can now be established or that, at any time in the past, were the authorities responsible for the administration of justice in Northern Ireland willing to co-operate in its establishment. In the absence of such an institution the alternative facing the government and now facing this House is to leave the status quo untouched, or to bring in a measure such as is now being considered. The Government did not wish to allow the present situation to remain uncorrected. In this connection, it was not dictated to by the British Government; neither is it engaged in pandering to ultra loyalist opinion. It is simply acting out of a sense of what is just and proper.

It is said that the provisions of this Bill will, in fact, never be invoked. I hope this prophecy will turn out to be right, for it will mean either that the IRA will at last have seen, after more than 1,300 deaths and thousands of maimings if not the immorality of the campaign they are waging, at least its futility; or, alternatively, that this Bill will have effectively deterred their members from seeking sanctuary in this part of Ireland, a sanctuary to which they are not entitled either under our Constitution or in international law and which the vast majority of the people of this island believe they should not enjoy.

I wonder, if this Bill is not to be invoked, as the Attorney General suggests, would it mean either of the alternatives he presented? Would it not be something we would all welcome if this were to be the case? May I suggest to the Attorney General and to the Minister that we have had a precedent in this connection which I doubt they would suggest means either of those happy events to which the Attorney General has just referred in closing? I refer to the order made by the Minister in relation to the Offences Against the Person Act, 1861, when he introduced the order in 1973 on the basis of extreme urgency, the order under which people could be tried here for murder committed in the North of Ireland. The urgency of the case and the need to deal with the situation was the basis of the Minister's argument. Since that order was introduced to give effect to the provisions of the 1861 Act has there been any proceeding arising out of it? If there has not, does that mean that murders have not continued to be committed in the North of Ireland and, if that is the case, does that not indicate that the Minister and the Attorney General, who are now presenting this Bill on the same basis of urgency and need as they presented the order under the Offences Against the Person Act, 1861, are as wrong as we have been saying consistently in their reading as to what this Bill will do and enable them to do as they were almost two years ago?

If the Minister can tell me when he comes to conclude that, in fact, that order introduced on that basis has been in any way effective, I shall be very glad to be convinced. The reality is, however, very different, indeed, and it is that unfortunate reality, we believe, is now behind the effectiveness of this Bill as presented to this House. I do not have to go any further than the Minister's introductory speech. I quote from column 1680 of the Official Report for Thursday, 20th November, 1975:

This provision will, by the way, be additional to the provision in the Bill making murder committed in Belfast an offence under our law, irrespective of the nationality of the offender.

Why should it be necessary for the Minister to include such a provision if what was then presented to us as being both urgent and effective has to be incorporated now in this Bill on the same basis. At least it leaves it open to the suggestion that if that order was so clearly ineffective then the incorporation of a similar provision in a similarly ineffective Bill will do nothing to heal the problem with which all of us are so concerned.

Might I preface my remarks by saying also that this Bill derives from the Sunningdale Agreement and subsequently from the Law Enforcement Commission Report which was presented a considerable time ago. The Bill is before the Dáil finally, having been introduced in the Seanad, a move against which we expressed strong views at the time on the basis that this House was the place where a Bill of this importance should be initiated. However, now that it is before us, may I ask the Minister and the Government why they are allowing only two hours for its debate in this week? Is this an attempt to give an impression that there is an obstructionist filibuster on the part of the Opposition or anybody else who would be represented as delaying the passage of the Bill? Two hours of a sitting week hardly indicates a great degree of urgency on the part of the Government. This situation calls for some explanation, when other business which, on the Government's argument, cannot rank as important as this, is being processed through the House. Lest there be any impression that the Opposition are in any way obstructing or filibusting on this Bill, let me say that we have no such intention. Our opposition to the Bill is based on the clear principles as enunciated in our amendment to it. I wonder if, next week, the Government will choose merely to allocate a further two hours to discussion of the Bill and to follow the same pattern the week after. I would remind anyone who might get the impression that the Bill is being delayed, that such delay is due entirely to the Government.

I shall come now to what are the real issues in this Bill. The Attorney General has dealt with one subsection of one section of the issue—the question of constitutionality—but the real issue is the issue between an all-Ireland court and the proposals before the House. It is important to reflect on the consideration given by the commission to an all-Ireland court and to ask the Government to explain the reason for presenting the Bill now in the light of what the commission said. Following the Sunningdale Agreement of December, 1973, the commission reported in April, 1974, and said at paragraph 9, page 12 of their report:

We deal with this method very briefly, because we are agreed that it is not practicable to deal urgently with the problem by this means.

The terms of reference presented to the commission was to bring forward an immediate and urgent solution, but because of what followed it might not have been practicable for them to deal urgently with the problem within those terms. However, had they been informed that they would have had at least six months to consider the question and that their proposals, which would involve a referendum, would involve another six months the situation might have been different. But they dismissed it only on the basis that it was impracticable in view of the urgency attaching to it. The report continues:

The method was interpreted by the Commission as involving the creation of a special uniform code of substantive law and legal precedure to deal with politically motivated crimes of violence, the institution of a new and separate court to administer that code, having jurisdiction over the whole island, and the appointment of judges to that court by a procedure to be agreed between the Governments. It was clear to the Commission that the method possessed certain advantages: for example, the court's ability to sit anywhere in the island and its jurisdiction over the whole island....

This is a provision which this Bill does not contain but I shall deal with this aspect of it later and help to clear up any misunderstandings which the Minister may have in relation to the attendance of witnesses either at an all-Ireland court or at the courts envisaged in this Bill. The paragraph continues:

... would solve problems with regard to the attendance of witnesses.

Apparently, the Minister does not agree with that. I continue the quotation:

Moreover, full uniformity in the law to be administered has many attractions.

I suspect that both the Minister and the Attorney General would accept fundamentally that principle. Then the commission comment on the reasons for dismissing the idea and they say:

However, the setting up of such a court would require amendment of the Constitution of Ireland.

We have accepted always that such a court would require an amendment of the Constitution. The report continues:

This could be brought about only by a referendum, which would be attended by inevitable delays and by uncertainty as to the result.

In commenting on the inevitable delays they were speaking as jurists. I would accept their comment in that regard except to say that what they meant by delay has to be considered relatively, because we have had experience of referenda being introduced and passed by way of legislation within from four to six months. I have no doubt that in relation to a Bill of this kind the same could be done had the Government a degree of urgency, concern and determination.

Regarding the comment as to the uncertainty of the result of such a referendum, I do not think any Member on any side of the House would have any doubt but that our people, if asked to vote for an amendment of the Constitution which would allow for an all-Ireland court which could deal effectively with this continuing and dreadful problem of violence, would vote overwhelmingly in favour of such a proposal. The time scale for the commission was a matter of months but a couple of years have passed since then. They decided that in view of the urgency of the problem further consideration of the proposal was precluded. If time had been a less important factor the question of an all-Ireland court would have called for more careful and detailed examination.

In the event, since time has been a less important factor, where is the detailed and careful examination that the commission of representative jurists and judges from here and the United Kingdom expressed? What detailed consideration has been given to that alternative by the Government? The Minister was referring to the all-Ireland court when he said at column 1677 of the Official Report of 20th November, 1975:

Are we then to say that, as we cannot get agreement on what we think the best or the ideal solution, we will do nothing in the meantime to see to it that fugitive offenders are brought to justice and that we will continue to tolerate the present scandalous position?

I take the Minister as acknowledging in that that the best solution is the all-Ireland court and it is because he says it is not on at the moment that we then have to consider his alternative so that the scandalous position he refers to will not continue.

All of us in this House are totally united in what this Bill purports to do if, in fact, it could be an instrument to that effect, namely, the eradication of violence and the consequences of violence on this island and particularly in the sorely troubled northern part of this island. All of us are united in that despite some what I may regard as sad and unworthy imputations from the Minister for Posts and Telegraphs with regard to views he suggested were held on this side of the House. One sometimes wonders how somebody such as the Minister for Posts and Telegraphs, who presents the case for reconciliation and understanding on this island, can do that in the light of the presentation he makes in this House of his determination to create divisions in this part of the island. I would be the last to judge any other individual but there must be a consistency in human action, human behaviour and human tolerance. The Minister for Posts and Telegraphs has consistently expressed his views, not least on a television programme last night which to a very considerable extent exposed his attitude for what it may really be: motivated, as far as this element is concerned, rather by opposition, entrenched antagonisms and bitterness, for some reason best known to the Minister, to this party rather than anything else. Therefore, the question of this side of the House and that side of the House coming together to work closely has certainly been gravely undermined.

Whatever I raise here is not raised by way of an implication on the Minister in the House, the Attorney General or the vast majority of the Government. Surely the vitally important thing, before any co-operation can take place, before any common policy may emerge in any areas, is that people can learn to respect and trust each other. The Minister for Posts and Telegraphs was quoted in The Sunday Independent of last Sunday as saying that one of his primary intentions is to permanently weaken the power of Fianna Fáil. When the Minister says such a thing how can we, whatever our differences with the Minister or the Government may be at the moment, in honesty and sincerity say we can have any common cause with a man who is so vindictively motivated against us? I wish it was not so. I wish the Minister could be a little more objective and a little more tolerant so that the example he sets could be applied to our own behaviour, our own words and our own actions in this House. If we want to give an impression of sensitivity and concern, let us do so in the knowledge that you cannot say one thing in relation to the North and act in a totally different and inconsistent manner in relation to your fellow Irishmen in the South and expect to be believed and respected.

I found the Minister's contribution on this Bill frustrating and sad. Contributions of this nature will set back the kind of co-operation we can undertake together. As the Leader of this party has said and as has been said from the other side of the House, all of us share in the horror and revulsion at what has happened on this island, North and South, over the last few years but it is not confined to those years. We would be less than honest and frank if we so confined it. Murder of individuals from whatever background and in whatever office in London, Birmingham, Belfast, Derry or Dublin is still a blot on the common name of humanity that we all share together. We on this side of the House totally reject, as we have consistently done, anything of that nature done without motivation which is said to be in the interests of reconciling Irish people and above all, which is excused with reference to Irish unity.

Even the latest spate of killings in the North and in England—we have had some terrible examples here although not in scale as constant as what has been suffered there—make it all the more important for us to ensure that we get at the roots of this continuing sore and not just deal with the symptoms, as the inclination has been in the last few months by this Government especially. Law and order may evoke a certain response from the community but the symptoms only are dealt with. Law and order ensure that we will not negotiate through the barrel of a gun; we will stamp out the terrorists and so on. However sadly misguided we may be, whatever the blot on our whole society, North and South, this may be, nonetheless, the situation derives from our society and more particularly from the political history of this country and from the political injustice of Partition.

Having said that, I abhor the violence. This party has consistently stated this. It is made all the worse for being backed by authority and institutional Government—the circumstances of the last 50 years which, if not the sole factor for bringing about that violence, has been in a very real way in the North of Ireland a major contributory factor. Until we get at the roots of those problems and the problems which have been allowed to exist in the North during all that period and look at the institutions through which that institutionalised violence has been effected, then we will not achieve what all of us want to achieve, the eradication of violence. We will not be able to persuade the wayward and sadly misguided people, who at the moment in many parts of this country are involved in violence, that this, even by their standards is inconsistent with what their fundamental aim would be and that we could be big enough, confident enough and strong enough to bring them back into a society which all of us, North and South, could be proud of. When I resume on this debate I hope to deal in greater detail with the practical provisions but at this stage I thought I would reiterate what has been said on this side of the House.

Debate adjourned.
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