I should like to deal with some of the legal aspects of the Bill. I do not propose to cover the full spectrum in its political context as has been done fully and ably and in terms with which I totally agree by Deputy Haughey. I do not think it is necessary for me to speak on the same lines. I should like to make some references to the legal aspects, particularly some of the views expressed by the Attorney General when he spoke on 26th November, as reported in Volume 286, columns 248 to 259 of the Official Report. I read as carefully as I could what the Attorney General had to say on that occasion and I take issue with several aspects of what he said.
The first point he made was in relation to the power of this, or any other State, to exercise extra-territorial jurisdiction in the sense of making laws which to one extent or another affect Acts created outside their territorial jurisdiction. The Attorney General quoted from two works on international law, O'Connell and Schwarzenberger. I should like to take up part of his quotation from the latter work as reported at column 250 of the Official Report which was to the effect:
... 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....
There is a lot more in that quotation than the Attorney General might have led the House to believe. The important part in my view is the proviso that 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 other words, such efforts to create extra-territorial law are in order.
However, I submit that in this Bill the exercise of jurisdiction in concrete instances does not take place within the territory of the State concerned. That is the whole point of this Bill. That is why the proposals in it in regard to extra-territoriality are so fundamentally different to anything we have had up to now. At column 251 of the Official Report the Attorney General gave a number of examples of legislation, section 3 of the Geneva Conventions Act, 1962; section 38 of the Extradition Act, 1965 and section 11 of the Air Navigation and Transport Act, 1973, as examples of extra-territoriality but he failed to point out to the House that in each and every such case the proceedings that could be taken on foot of such section will be heard in this jurisdiction and totally within this jurisdiction.
There is no provision in any of those sections or Acts, or in any other extra-territorial legislation of which I am aware, that part, or as will happen in this case, most of the proceedings will take place outside our jurisdiction. Let us for a moment endeavour to postulate the sort of case which is most likely to occur as a result of the passage of this Bill. I want to refer to a case that would arise under the provisions for the taking of evidence on commission under section 11 because that section is the nub of the Bill and not simply the section which creates the extra-territorial offences. If somebody is arrested within our jurisdiction for a crime which he is alleged to have committed in Northern Ireland and the witnesses to the alleged crime are members of the security forces of Northern Ireland it is assumed, by the insertion of section 11, that those security forces will be unwilling, for one reason or another, to travel to the Republic of Ireland for the purpose of giving evidence. Under section 11 this commission has to be established to take evidence under that section. The only here in relation to that alleged offence evidence that will be given to the court is evidence of arrest by a member of the Garda Síochána. If this Bill is passed nobody else in most cases will be able to give any evidence relevant to the commission of the alleged offence.
Therefore, it is fair to say that 95 per cent of the case will be heard outside our jurisdiction. That whole circumstance is totally different to the kind of examples which the Attorney General gave. The Attorney General did not tell the House that in each of the cases he cited the entirety of the proceedings will take place in the Republic of Ireland. In the example I have given of the sort of case that is likely to arise under this Bill, 95 per cent of the proceedings will take place outside our jurisdiction.
Virtually all the evidence other than formal evidence of arrest will have to be given in Northern Ireland to a judge of the Northern Ireland High Court, and how that can be equated with proceedings under these three Acts that are cited is beyond me. In fact, if the Attorney General had gone on to deal somewhat further with section 3 of the Geneva Conventions Act, 1962, he would have seen that the proposals he referred to cover what are described as grave breaches of the scheduled Conventions and are designed to enable the arrest and trial of people such as Nazis who carried out appalling acts of genocide and similar acts during the second world war, but if he looks at subsection (4) of that section, it specifically states:
A person charged with an offence under this section shall be tried by the Central Criminal Court.
The Central Criminal Court sits in Dublin within this jurisdiction. It sits with a jury. It hears all its evidence in Dublin or elsewhere within the jurisdiction and there is no provision that evidence can be taken by it outside the jurisdiction and, in particular, there is no provision that 95 per cent of the evidence can be taken outside the jurisdiction, as would be the proposal in the Bill we have under discussion now. If any attempt were to be made to take evidence outside the jurisdiction it would presumably be necessary to move the jury outside the jurisdiction to hear it because they are entitled to hear the witnesses. The thing is patently impossible and therefore was never contemplated and could never be contemplated.
I would also like to suggest to the Attorney General that although the Geneva Conventions Act, 1962, has been law for 30 years, so far as I am aware nobody has been convicted under section 3 and one wonders if anybody will ever be convicted under section 3. The same remarks apply to the other two Acts which are referred to.
I have no objection to the Government seeking to create extra-territorial jurisdiction in relation to certain types of offences if that is felt to be necessary provided that the total exercise of that jurisdiction is carried on within our own jurisdiction. In that connection it is as well to refer to the fact that the basic approach of international law to the question of extra-territoriality is based on the fact that a State can legislate for all acts by whomsoever committed within its own jurisdiction and can legislate for acts committed outside its jurisdiction by its own citizens or its own subjects. That is a fair statement of a generally accepted basic tenet of international law, but we are going a great deal further here or we are attempting to go a great deal further here, and I would suggest to the Minister for Justice that he will have to think again about this proposal and, particularly, that he will have to think again about it in the light of the recent judgment of Mr. Justice McMahon delivered on 28th November, 1975, in the matter of an application for an order of certiorari by Brendan Devine and John Magee. The case may be referred to briefly as the Foyle Fisheries case because regulations made under the Foyle Fisheries Act, 1952, as amended, were called in question by the prosecutors there, and successfully so. Some of the reasons given by Mr. Justice McMahon in arriving at his decision in that case are to my mind very relevant to the sort of problem that we are facing in discussing this Bill at this time.
This arises under two different headings. One of them is a consideration by Mr. Justice McMahon of the power of the Oireachtas to make extra-territorial legislation and the second, towards the end of his judgment, relates to certain changes in function in Northern Ireland which in his opinion invalidated the regulations which were made under that Act because they were done without the authority of Oireachtas Éireann. I take the two points concerned in the order in which they appear in his judgment and go briefly through the matter.
The first point that should be noted is that the Foyle Fisheries Act, 1952—and I quote Mr. Justice McMahon—
is expressed to have extra-territorial operation in respect of acts done by persons resident in the State in that part of the Foyle area which lies outside the State. It was submitted on behalf of the prosecutors that Article 3 of the Constitution limited the powers of the Oireachtas to enact laws having extra-territorial effect and that the Act of 1952 was in excess of such powers.
He quotes Article 3 and goes on to say:
It was not contended that a law expressed to have extra-territorial effect was inconsistent with the comity of Nations or the established rules of international law.
He then goes on to deal with the power of Saorstát Éireann to make law which had extra-territorial effect, and this is a matter of great importance here because the power of this Oireachtas to enact extra-territorial legislation is no greater than the powers of Saorstát Éireann to do so prior to the passage of the 1937 Constitution and therefore the powers of Oireachtas Éireann today in this regard are very much bound up with what were the powers of Saorstát Éireann prior to 1937. I am quoting from what is described as an unapproved copy of the judgment supplied to me. Mr. Justice McMahon goes on to cite the following cases:
In Keegan v. Dawson (1934 I.R. 232) Fitzgibbon J. at p. 249 cited with approval a passage from the judgment of Doctor Lushington in The Zollverein (2 Jur. N.S. 429):
"The power of this country is to legislate for its own subjects all over the world and as to foreigners within its jurisdiction but no further."
Fitzgibbon J. went on to state:
"There is no doubt in my mind that not only the British legislature but the legislature of each of the self-governing dominions including that of the Free State has power to legislate for its own subjects all over the world."
The power of a dominion parliament to legislate with extra-territorial effect prior to the Statute of Westminster, 1931, was denied in the judment of the Privy Council in British Coal Corporation and Others v. The King (1935 A.C. p. 500). The Statute of Westminster, 1931, by section 2 (3) provided that it was
"Declared and enacted that the Parliament of a dominion has full power to make laws having extra-territorial operation."
The prosecutors contended that the reference in Article 3 to "the laws of Saorstát Éireann" meant the laws in force in Saorstát Éireann at the time of the enactment of the Constitution and since there was then no legislation of Saorstát Éireann corresponding to the Foyle Fisheries Act, 1952, that it was not competent for the Oireachtas to give the Act an extra territorial effect. It would be a strange anomaly if the sovereign, independent State constituted in 1937 did not have as ample power of making laws as was vested in Saorstát Éireann more than 40 years ago.
In my opinion Article 3 cannot be construed in this manner. No reason has been suggested for limiting the power of the State by reference to the extent to which Saorstát Éireann had exercised the power to make laws having extra-territorial effect. In my opinion Article 3 of the Constitution in providing that the laws enacted by Parliament shall have the like extra-territorial effect as the laws of Saorstát Éireann means the like extra-territorial effect as the laws of Saorstát Éireann were capable of having. Under Article 3 laws having a purely domestic import do not extend to Northern Ireland, but laws expressed to operate extra-territorially can bind those who are subjects of the State in regard to their conduct in Northern Ireland.
That is the end of the quotation from Mr. Justice McMahon on that point.
These points are very important. Of course, the particularly significant piece is the last sentence I quoted and which I think should be examined in some detail. It is only fair to say that the Attorney General, when speaking in this House on the 26th of November, did not have the advantage of the judgment subsequently delivered by Mr. Justice McMahon on the 28th of November. Let us examine in some detail the last sentence and its import—I shall repeat it for that purpose:
Under Article 3 laws having a purely domestic import do not extend to Northern Ireland, but laws expressed to operate extra-territorially can bind those who are subjects of the State in regard to their conduct in Northern Ireland.
Mr. Justice McMahon used the words "subjects of the State". Other authorities use the words "citizens of the State". I think they mean the same thing. I take the words "subjects of the State", as expressed by Mr. Justice McMahon, to mean the same thing as the various authorities mean when they say "citizens of the State".
Therefore, there is the position that the extra-territorial aspect of this Bill can affect people in Northern Ireland doing certain acts in Northern Ireland only if they are subjects of the State or citizens of the State. Therefore, we must ask ourselves : what is the position regarding citizenship of persons in Northern Ireland? The position is set out in sections 6 and 7 of the Irish Nationality and Citizenship Act of 1956. Subsection (1) of section 7 of that Act reads as follows:
Pending the reintegration of the national territory, subsection (1) of section 6 shall not apply to a person, not otherwise an Irish citizen, born in Northern Ireland on or after the 6th of December, 1922, unless, in the prescribed manner, that person, if of full age, declares himself to be an Irish citizen or, if he is not of full age, his parent or guardian declares him to be an Irish citizen. In any such case, the subsection shall be deemed to apply to him from birth.
This raises a great many problems in relation to the efforts of the Oireachtas to legislate for people who are not citizens of Ireland and whose alleged offences took place outside the jurisdiction of this Parilament. It is a fair and accurate summary of sections 6 and 7 of the Irish Nationality and Citizenship Act of 1956 to say that people who were born in Northern Ireland subsequent to the 6th of December, 1922, are not Irish citizens unless their parents were born in Ireland before that date or they make a declaration declaring themselves to be Irish citizens. In fact that is the way the position works, for example, in regard to the issue of passports. Therefore, we have the situation that, under the normal rules of international law, extra-territoriality of the kind proposed here can apply to acts done outside of our jurisdiction only by Irish citizens.
The Minister will have to consider the large number of people who live in Northern Ireland, who were born subsequent to the 6th of December, 1922, who are not otherwise Irish citizens and who have not made a declaration of the kind referred to in subsection (1) of section 7 of the Irish Nationality and Citizenship Act of 1956. As a result of this, it is very questionable whether such persons can in fact be brought within the effect or jurisdiction of this Bill, assuming it is passed.
This is a matter that has not been argued here before; it has not been dealt with; it goes to the very root of the Bill and is of fundamental importance. The view which was expressed in the Foyle Fisheries case as recently as the 28th of November by Mr. Justice McMahon would seem to bear out the view of most international jurists that the jurisdiction of a State in respect of extra-territorial crimes extends only to its citizens. If it is expressed to extend, as it is in the Geneva Conventions Act, to more than its citizens alone, the entirety of the proceedings must take place within the jurisdiction, which, of course, is not proposed under this Bill.
The Attorney General, speaking in this House on the 26th of November, said:
No one has suggested that Saorstát Éireann had not power to legislate with extra-territorial effect. Its right to do so was beyond question.
I beg leave to respectfully disagree with the Attorney General on that point. The series of judgments cited by Mr. Justice McMahon make it perfectly clear that, for a very long time, Saorstát Éireann had not power to legislate with extra-territorial effect. In so far as it ever had power, that power was conferred, not by the Constitution of the Irish Free State, by any Act of Saorstát Éireann, or of the Parliament of Saorstát Éireann but, strangely enough, by the Stature of Westminster of 1931, section 2, subsection (3). It is an extraordinary thing that apparently we, at that time, as a nation, were so subservient and lacking in independence that it was only when a statute of the Westminster Parliament was passed in 1931 we acquired the right to enact extra-territorial legislation. Therefore, the Attorney General is quite wrong in thinking that Saorstát Éireann always had the fullest powers in this regard. It did not. Of course, it is arguable that, notwithstanding the Statute of Westminster of 1931, that power was not a complete power. It is arguable that the jurisdiction of the Westminster Parliament at that time would not extend to creating or taking away rights in relation to a matter such as this.
I do not want to attempt to preempt the argument of anybody who might wish to go before the High or Supreme Court in relation to this point. But, if one had time to do sufficient research into these various cases cited by Mr. Justice McMahon, one might well find the situation that it was very questionable whether Saorstát Éireann, at the time of the expiration of the Free State Constitution, had in fact the powers that the Attorney General takes it for granted they had. It may well be quite possible to show that in fact they had not and it is possible to show that, if they had them, they had them only by virtue of section 2 of the Statute of Westminster of 1931.
The Attorney General continued to say and I quote:
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 offences 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.
It has never been explained in a satisfactory manner to this House why this distinction arises, why in relation to explosives offences in Britain, Irish citizens only are amenable, but in relation to a wider category of offences in Northern Ireland, as it is put here, "any person is amenable". It is my suggestion that under international law any person cannot be made amenable and that offences which are created by sections 2 and 3 will have to be treated in the same way as the offences created by section 4 in relation to explosives in Britain. If the Minister has some reason for making this distinction I would be glad to hear it in his reply. On the face of it, there does not appear to be any valid reason for confining the liability for conviction in respect of British offences to Irish citizens but in attempting to extend the liabilities for Northern Ireland offences to any person. The Minister should consider the implications of sections 6 and 7, particularly subsection (1) of section 7 of the Irish Nationality and Citizenship Act when considering these matters.
The other point I want to make is completely different, but nonetheless is relevant to this Bill. It was provided by the 1952 Foyle Fisheries Act that certain regulations which would be made under it should have the concurrence of our Department, of our Minister for Agriculture and Fisheries, and the concurrence or approval of the Ministry for Commerce for Northern Ireland. Subsequent to 1952 the powers of the Ministry of Commerce in Northern Ireland in relation to this particular matter were transferred by some form of statutory order to the Ministry for Agriculture in Northern Ireland. No reference was made in any legislation of the Oireachtas to the fact of that transfer. Mr. Justice McMahon's judgment in the Foyle Fisheries case said at page 11 of the typed copy of the judgment:
In my opinion that transfer of functions does not render the approval of the Ministry for Agriculture for Northern Ireland sufficient to validate the regulations. That would require a statutory transfer of the power of approval from the Ministry for Commerce to the Ministry for Agriculture by an Act of the Oireachtas. In my opinion a statutory requirement of our law cannot be altered or dispensed with by a law having effect in Northern Ireland only and can be altered only by legislation having the force of law in the State.
I would suggest to the House, and in particular to the Minister, that there is a considerable danger that the problem which arose under the Foyle Fisheries Act and which resulted in those regulations being declared invalid and the convictions being quashed, can potentially arise in relation to this Bill because most of the cases in which the Bill will be used— 95 per cent of the proceedings—will take place in Northern Ireland. By implication if the Oireachtas passes this Bill, they will be stating that the procedure at present in force in Northern Ireland in relation to the taking of evidence, the summoning of witnesses, and all the other things that will be relevant to the sitting of a Commission in Northern Ireland, is recognised by the Oireachtas for that purpose. If that law in Northern Ireland is changed, it is done without reference to the Oireachtas, as the regulations under the Foyle Fisheries Act were changed. Unless the Oireachtas approve of such changes, it is strongly arguable that such changes could not have statutory effect from our point of view.
The Bill refers in a number of places—it is mentioned several times in section 20—to an offence under the law of Northern Ireland and subsection (7) refers to acts done in Northern Ireland, the absence of any licence or other authority requisite under the law of Northern Ireland relating to firearms, or a breach of a condition attached to any such licence. The law in Northern Ireland dealing with firearms may be very unsatisfactory but it is now a stated fixed thing. This Bill makes reference to the law of Northern Ireland, that is, as of the day this Bill is passed into law. If the law of Northern Ireland in relation to firearms or any of the various other matters relevant to this Bill is subsequently changed, that change is made without the authority of the Oireachtas and, on the basis of Mr. Justice McMahon's decision in the Foyle Fisheries case, any subsequent change could not detrimentally affect an accused person who is being tried under the jurisdiction of our courts and any subsequent change would be ultra vires the powers created by this Bill.
These matters should be considered in some depth. They are indicative of the major problems this Bill is creating and of a few of the many ways in which this Bill will be a legal morass which will scarcely be workable in any fashion. As soon as proceedings are taken under the Bill, as Deputy Lynch pointed out, the people charged under it and affected by it will go to the High Court and the Supreme Court. It may be that parts of this Bill will be found unconstitutional or to be invalid on other grounds, but much of this Bill will be found impossible of enforcement.
I want to take another small example of the rather hopeful provisions, on the part of the draftsman, in this Bill. Section 19 (1) gives power of arrest without warrant. It states:
Any person may arrest without warrant anyone who is or whom he, with reasonable cause, suspects to be in the act of committing an offence under section 2 (1).
Section 2 (1) provides that:
Where a person does in Northern Ireland an act that, if done in the State, would constitute an offence ... he would have been liable if he had done the act in the State.
This applies only to acts of a criminal nature done in Northern Ireland. Still section 19 (1) purports to give any person the power to arrest without warrant anyone who is in the act of committing an offence under section 2. Could there be an example of a more futile legislature than an tOireachtas giving power of arrest to any person which can only be exercised outside the jurisdiction of this Parliament?
The explanatory memorandum makes some reference to this and says it is not likely to arise very often. It cannot arise at all. It is totally futile for this Parliament to seek to give a power of arrest outside its own jurisdiction. The Bill, I am afraid, is riddled with anomalies and foolish provisions of this kind. It goes on in subsection (2) of section 19 to give a similar power of arrest in relation to sections 2 (1) or 3 after the offence has been committed. There is some vague possibility that if somebody escaped from Northern Ireland and came down here it might be some use to give a power of arrest without warrant to any citizen. It is really, again, basically, a futile provision.
The Bill is full of provisions of this kind that I am afraid are futile. Many people would regard the enormous powers of arrest without warrant that are given under section 19 as highly undesirable. They are the kind of powers one would not expect to find being pushed nowadays. If powers of arrest without warrant are to be given anew they should only be given to members of the Garda Síochána. This very extensive power of arrest is being given to any citizen as well as being given subsequently to members of the Garda Síochána.
In relation to what I said earlier on the question of a person's nationality I see there is a provision in section 20 (3) which states:
Notwithstanding anything contained in the said sections 2 or 3 of the Explosive Substances Act, 1883 a person shall be guilty of an offence under sections 2 or 3 whatever his nationality.
Can that stand up? It is a statement but it seems to conflict with international law and it seems to be unenforceable. It seems to be as futile a proposal as many of the other proposals which are contained in this Bill.
I have deliberately confined myself to talking about a few of the numerous legal problems that will arise if and when this Bill is passed and put into operation. I have only dealt in some detail with a small number of them. It seems to me that the Bill is fraught with enormous difficulties, more so than any I have ever seen in a Bill in the House during my time here. I can see the first 12 months of the operation of this Bill being entirely suspended because of the large number of cases that will be pending at any given time in the High Court and the Supreme Court in order to have various aspects of this Bill clarified and a decision given as to whether or not they are valid provisions.
The Bill might be termed important in one sense. It is important in the very limited sense that, as the Minister admitted in the course of a discussion here with Deputy Colley during Deputy Colley's speech last week, there is no precedent in this country or, so far as we know, elsewhere for what is being proposed in this Bill. The Bill is unimportant in the sense that it represents the totality, it would appear, of the Government's policy in relation to the enormous problem of Northern Ireland. In my view the Bill will do nothing viable or constructive. Nobody in the House would more willingly support any Bill that would reduce violence or lessen tension than I. I brought into the House and got passed through it after enormous difficulties the only modern legislation which is effective in regard to this matter. Therefore, I would be the first person in Ireland to come out and welcome this Bill if I thought it was of any value.
I regret to say that in my opinion this Bill is not of any value. It has been heralded by the Government, and particularly in the British Press and the Unionist Press of Northern Ireland, as something of importance. No doubt they believe it is. They believe it will achieve results of various kinds but, as has been pointed out in this debate already by more than one speaker, we had a statutory instrument made by the Government in December, 1973 in relation to the extra-territorial effect of the crime of murder under the Offences Against the Person Act, 1861. That was supposed to be a major contribution towards lessening terror and tension in Northern Ireland. At the time it was heralded with great enthusiasm by members of the Government and some of their supporters. Then our spokesman on justice was Deputy Andrews. He said he thought it was a piece of window-dressing, that he did not envisage there was a likelihood of anyone actually being convicted under it. Not alone was he right—this is two years later—that nobody was convicted under it but nobody, to the best of my knowledge, has been charged under it. It is, fundamentally, a similar type of provision to this Bill except that this Bill contains section 11 which makes it different from anything else that has ever gone before.
I lived for three years with the kind of situation the present Minister for Justice is living under. I am well aware of the difficulties, and I venture to say that at the time I had to deal with those problems they were in many ways perhaps greater than they are now because the legislation, which is there now, was not there to deal with them. It was only during my last few months as Minister for Justice that I had the sort of legislation which enables one to deal with the matter in a more effective fashion. I am at least as well aware as anyone else in the country and certainly in this House of what the problems involved in this whole field are. I say to my successor that the greatest asset he has in dealing with any possible fugitive offenders from Northern Ireland is section 3 of the Offences Against the State (Amendment) Act, 1972. I have a question down on today's Order Paper. I hoped I would not have to speak until afterwards so that I could have taken up a written reply. The question I have down is:
To ask the Minister for Justice the number of applications for extradition received by the Garda Síochána from Northern Ireland and Britain in respect of terrorist type offences in each of the years 1969 to 1975 inclusive.
I do not know what the answer is; I cannot get it until 4 o'clock but my guess, from my general observation, is that the number of warrants being sent is comparatively small because the number of so-called fugitive offenders is very small. The reason is that if somebody commits a serious crime of the kind set out in the Schedule to this Bill in Northern Ireland and decides that he is in some danger of apprehension there, he will not, if he is the kind of person the Minister is dealing with here which will in practice generally be a member or an associate of the IRA, come to the Republic, certainly other than very briefly, because he is liable to be picked up here by the police and charged with membership of an illegal organisation—assuming he is a member, and a high proportion of the sort of people who presumably would be affected by this Bill are members of an illegal organisation.
It cannot be suggested that members of loyalist paramilitary organisations are likely to want to come down here after committing crimes in Northern Ireland. In practice, what is happening both in relation to people who commit certain types of crime down here and people who commit certain types of crime in most of Northern Ireland is that they are going into that part of Northern Ireland where nobody's writ runs and, if necessary, staying there for quite lengthy periods, that is the part of South Armagh close to the Monaghan border where there has been no policing by the Northern authorities for several years past other than occasional forays through the area in armoured cars or tanks and where there is no genuine policing and no proper exercise of civil jurisdiction over the area. The number of so-called fugitive offenders coming down here after committing serious crimes in Northern Ireland in recent years subsequent to the passing of the Offences Against the State Act, 1972 is at least comparatively small and, in my opinion, probably very small. I shall not be able to ascertain the actual figure until 4 o'clock when I get a written reply from the Minister to a question I have down, but I venture to think the figure might be as low as 20 or 30 a year and that many of those in respect of whom there are warrants are now in Portlaoise prison having been convicted of membership of an illegal organisation. The virtual certainty on the part of many of those people that they will be convicted if they come down here is by far the most effective deterrent against their coming here.
I wonder why in those circumstances it is necessary to introduce legislation that will have some extraordinary effects and put this State in the position that its own judiciary, who are very highly thought of in this country, will be forced to decide cases on evidence given by members of a force or forces that have been unquestionably guilty of serious breaches of the European Convention on Human Rights.
There was a newspaper report in the last week or 10 days to the effect that the European Commission which has been hearing the case brought by the Government of which I was a member against the British Government in respect of these matters has unanimously decided that Britain is guilty of the offences, the breaches of the Convention which we alleged, and that the matter is now about to be referred to the court for a final ruling. I do not know if the report is correct, but from one's knowledge of the facts there must be a high degree of likelihood that it is correct. Whether it is or not, it is not seriously disputed by anybody, least of all by the British, that serious torture on a widespread scale took place on the part of the RUC and the British Army of people who were in their custody and who, generally speaking if not always, were not convicted at the time the torture took place. Under this Bill our judges are supposed to act on the word of members of those forces which have been so discredited in the eyes of the world. Is that fair to our judges as individuals and to our judiciary as an institution which has built up for itself as a body tremendous respect over the past 50 years for being impartial and fair and for giving the defendant, no matter what the circumstances, a fair trial at all times?
We in this part of the country are inclined to assume that a police force is a fair body of men that need not be feared because we have here what is possibly the finest police force in the world—perhaps not in the sense of their having all the latest technical equipment and electronic devices that more sophisticated police forces may have, but certainly the finest in the sense that the respect in which they are held by the community at large cannot be equalled anywhere else. We have in the other part of our country a police force which is totally discredited and which has shown itself to have strong sectarian affiliations and to investigate crimes committed by members of one part of the community there with great vigour— to such an extent that they have been brought before the European Commission on Human Rights in relation to it—but at the same time the same force totally refuses to make any investigation into equally horrendous crimes committed by another section of the community in Northern Ireland. These are the people that our judiciary are now expected to work with.
Our judiciary will have no supervision over them. If a member of our judiciary in hearing a criminal trial in this country feels that a member of the Garda Síochána acted improperly he has very definite jurisdiction. He can order an inquiry to be held by the commissioner, the Attorney General or the DPP. Our judges sitting in Northern Ireland, not as judges but listening to a commissioner taking evidence there, might well be revolted by much of what they hear from a police force but they are not in a position to do anything about it.
We also have the position that has been adverted to by several speakers but, to the best of my knowledge, has not been answered by any Government speaker, that three of our judges will be expected to go to Northern Ireland, perhaps for several days at a time, to listen to a High Court judge of Northern Ireland taking evidence on commission. Does the Minister realise the apprehension with which our judges must inevitably view any such exercise? Does the Minister realise, as I know the judges here realise, that three judges have been shot dead in Northern Ireland over the past 18 months or two years, that attempts have been made on the lives of other judges in Northern Ireland which happily did not succeed? Is there not at least as high a degree of likelihood that similar attempts would be made to shoot dead judges from this part of the country who would go up there to listen to evidence to be taken on commission?
Are the RUC in a position to guarantee absolutely the safety of our judges who go up there? I suggest they are not because of the whole lawless situation in Northern Ireland and the fact that policing in the accepted sense extends only to certain parts of that territory. I do not know whether the judges have been consulted about this and their agreement obtained, but one would doubt very seriously that such consultation has taken place because if they were consulted I expect that the majority of them would not agree to the kind of situation they would find themselves in under section 11 of this highly unsatisfactory Bill.
If it happens that for these reasons and others, section 11 proves to be of little use, the entire Bill will be of little use except in so far as the entirety of a trial can take place in the Twenty-six Counties. I see no objection in principle to sections 2 and 3 subject to certain amendments which I might suggest for Committee Stage and provided the provision was confined to Irish citizens for acts committed outside our jurisdiction and was in accordance with the tenets of international law and provided, too, that the entirety of the trial took place in the Republic.
Perhaps the Minister would suggest to the Northern Ireland Secretary that if the British and Northern Ireland authorities are so keen to have tried here the alleged fugitives from these two other areas, that they direct their own employees—the members of the RUC and the British Army who, normally, would be the only witnesses in matters of this kind—to come to Dublin and give evidence. There is nothing to prevent the British authorities doing that. Section 11 will not work but will create tremendous trouble. Indeed, the Government should say that they have no wish to work it, that they want to drop it but that they are prepared to have fugitive offenders tried in the Republic, the only requirement being that the British and Northern Ireland authorities send witnesses down here. In the case of civilians this may not be possible, but the majority of witnesses in these cases would be members of the RUC and the British Army.
We are all anxious to ensure that any fugitive offenders are brought to trial, but let us try them in the way I suggest, thereby ensuring that no injustice is done to anyone, that judges will not be put in danger and that we will have a workable system. This does not seem to have occurred to the Minister or to the Government. The idea that this party have put forward consistently is for an all-Ireland court, but the Government have not made any effort in this regard. The commission that sat subsequent to Sunningdale found this a very attractive idea but ruled against it on the ground that there would be a delay of several months in getting passed an amendment to the Irish Constitution. It is now two years after Sunningdale so the delay factor is no longer of any account. Even if we were not to get an all-Ireland court over night could we not at least have a situation in which the obnoxious provision of section 11 would be removed? It is my belief that there is only a mere handful of fugitive offenders within this jurisdiction: perhaps there are none, but if there are any they will probably go to South Armagh where they would appear to be as safe as they could be anywhere in the world, where they would be beyond the control of this Government and of the Northern Ireland authorities. Why not try them here without this ridiculous requirement of a commission? If, for legal or other purposes, the Government do not wish to establish an all-Ireland court there is nothing to stop them establishing extra-territorial jurisdiction subject to the reservations I have expressed.
The Government must have agreed with some outside agency as to the provisions of this Bill, and their attitude is that no matter how clearly it has been demonstrated that it will not work they intend seeing it through. If that is the position our best procedure as a political party would be to say: "Fair enough, let it go through. It is wrong in principle but it will not do any great harm since it will not work." Basically, that is my attitude to the Bill. Apparently, we cannot prevent it going through because two Members who sit on the other side have said that notwithstanding their certainty that the Bill is wrong and obnoxious in every way they propose to vote for it because, otherwise, they would be thrown out of the Labour Party. It is regrettable that people would approach any legislation in that way, but at least it has the redeeming feature that they have made clear their reason for voting for the Bill. We have had many examples of people voting against their conscience but not admitting so.
There is every reason to be apprehensive about the Bill, to believe that it is creating a very bad precedent, that some extraordinary injustices are likely to occur as a result of it. However, since it cannot be workable, since I anticipate that various provisions of it will be challenged at an early date and possibly found invalid and, since, because of the passage of the 1972 Act, there is no significant number of fugitive offenders in the Republic, I am less concerned about the Bill than I would be if I thought it would have a serious effect.
I am opposed to the Bill and I will certainly vote against it, but neither I nor any one in my party is going to seek over a lengthy period to try in any way to obstruct its passage if the Government Whip is now in a position to get it through. He has whipped into line various people in his own party who know that the Bill is totally wrong and obnoxious and who have said this. This may not be the best sort of approach to legislation. It may be said that it is the duty of a Deputy, particularly a Deputy in Opposition, when he knows something is wrong and is going to be passed to try at all costs within the rules of order to prevent it being passed. Because I believe that ultimately the Bill is futile and will be of little value and importance in the long term, I am not going to try to delay it any further.
It has not been noted as widely as it might that as well as provisions for the type of trials and offences we have been talking about, for some reason that the Minister has not explained satisfactorily there are significant substantive changes in the ordinary criminal law contained in this Bill, interspersed here and there among other more controversial provisions. Some of these substantive changes in the ordinary law are of importance. There seems to be an extraordinary series of provisions to redefine a number of common crimes. I am not sure why they need to be redefined; it may be an attempt to bring them into line with the Theft Act in England or there may be some other reason, but in most cases the penalties, which are already severe, seem to have increased considerably. There are matters included in the Schedule to this Bill, for example burglary, that I do not think are appropriate there. I cannot see the point of their being put in. It seems to me that the Schedule to this Bill is not on all fours with the list of offences scheduled under the order made in May, 1972, establishing the Special Criminal Court under Part V of the 1939 Act.
The Attorney General in his speech here, to which I have referred already, stated that the operation of this Bill was not confined to the Special Criminal Court; in other words, it is open to a judge and jury or a district justice to hear some of the charges scheduled under this Bill. However, as I have pointed out, section 11 which is the real nub of the Bill is confined to the Special Criminal Court and cannot be operated by a judge and jury or a district justice trying charges summarily.
As Deputy Haughey has rightly pointed out, the effect of section 11 and the confining of it to the Special Criminal Court will be to institutionalise that court and to render more difficult the ending of the proclamation under Part V of the Offences Against the State Act, 1939. There is a specific inducement to this and to any government in power at the time to continue that proclamation in force as long as possible because if they do not do it section 11 of this Bill becomes ineffective and inoperative. Therefore, this Bill as a whole is of little value. It is wrong to put the temptation there to the Government to continue the proclamation under Part V in force for any longer than is necessary.
I wonder why the Minister saw fit to confine section 11 to the Special Criminal Court. I can well foresee the difficulty of bringing a jury to Northern Ireland—it simply would not be feasible—but in relation to summary charges where only one judge would have to go, why did section 11 not apply? It makes one suspicious that section 11 seems to be totally tied up with the Special Criminal Court and will not operate separately from it.
I have not made any attempt to deal with the specific sections relating to some fairly significant changes in the criminal law which partially relate to crimes that are not subversive in character. I hope to have the opportunity of dealing with them on Committee Stage. In common with a huge number of people throughout the country, I am very apprehensive about the Bill and the precedent it creates. The only reason that perhaps I worry less about it than I might in other circumstances is that I regard the Bill as unlikely to work and as unlikely to be operated very significantly. In particular, I am of the opinion that the number of fugitive offenders who might be affected by it at present in the Republic of Ireland is very small and is not likely to grow. The reason that figure is not likely to grow is because of the existence of section 3 of the Offences Against the State Act, 1972.
I would remind the Minister, as he so frequently reminded me in 1971 and 1972, that during those years and up to the time of the passing of that Bill one of the major problems I and the Government had was the fact that certain types of people who were well known to be associated with the IRA, either in the North or in this State, could flaunt themselves around this city and in various parts of the country because there was insufficient evidence as the law then stood to charge them. There was nothing that could be done. We have not had that situation since December, 1972, and for the very same reason that we have not those people flaunting themselves around nowadays, equally we do not have fugitive offenders flaunting themselves around.
It was always part of British propaganda during the entire time I was Minister for Justice and subsequently to suggest that in some way the Northern Ireland troubles had a huge Southern Irish content. As Minister I was at pains on many occasions to point out how untrue that was, and my successor has had to do the same on several occasions. There were several thousand people interned in Northern Ireland in the four years and four months that internment lasted, and less than 1 per cent of those interned came from the Republic or were directly connected with it. In itself that is the greatest admission that the British and Northern Ireland authorities could make in relation to the untruth of the propaganda they have tried to create.
