Amendment No. 1 in the name of Deputy O'Connell. Not moved.
Criminal Law (Jurisdiction) Bill, 1975 [Seanad]: Committee Stage.
NEW SECTION.
I assume that amendment No. 4 can be taken with it.
Because amendment No. 1 has not been moved, amendment No. 4 cannot be taken with it.
Is Deputy O'Connell not moving it?
What is the position? I did not hear.
Amendment No. 1 has not been moved.
I will move it on behalf of Deputy O'Connell.
Deputy O'Connell is not here to move it.
We should have a House to hear this important matter.
The Opposition are keeping the House away.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
I move amendment No. 1 in the name of Deputy O'Connell.
The Deputy may only do so on the authorisation of the Deputy in whose name the amendment has been tabled.
I must confess I do not have that authorisation. However, I am very glad now that Deputy O'Connell is here. We have done the Government side of the House a good turn. I gladly give way to Deputy O'Connell.
My apologies. I misunderstood what was taking place. I move amendment No. 1:
In page 2, before section 1 to insert a new section as follows:
1. — (1) Subject to subsection (2) of this section, this Act shall continue in force for one year after coming into operation and shall then expire.
(2) The Minister may by order, continue this Act in force for a further period not exceeding one year.
(3) When an order under this section is proposed to be made, a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made unless and until a resolution approving of the draft has been passed by each such House.
Can we take amendment No. 4 in conjunction with this amendment?
If the House agrees, we can do so for the purpose of the debate.
Deputies
Agreed.
I feel strongly about this amendment because too often we have had Acts passed in this House ostensibly to cover emergencies, just to cover emergency situations existing at those times, but unfortunately once they became Acts and part of the statute book they forever remained with us. This is a very dangerous situation. Whether we like it or not, this is repressive legislation intended to cover an emergency. In normal circumstances we would not even consider discussing a Bill like this. Each of us on all sides of the House would be opposed to this type of legislation in normal times. I accept these are not normal times. The Minister has said in his opening speech that they are not normal times. He has brought in the Bill to cover this abnormal situation. If what the Minister has said is true, if what the Government say is true, then there is nothing wrong with this amendment.
All the amendment means is that after one year this Act will expire. If a situation should still exist in our society that would warrant the Act being extended, there is no reason why it could not be reactivated or extended by means of a resolution passed by both Houses. There is ample precedent for it in many Acts passed in the twenties when Cumann na nGaelheal were in power: they brought in repressive legislation to cover the troubled times we had then but in every one of those measures there was provision for them to expire at the end of a year or two years as the case was. Then they automatically expired. Only in two cases were those Acts extended. One was extended for five years but it was repealed after two years.
I would therefore ask the Minister to show his sincerity and the Government to show their sincerity. They have said this Bill is to meet a situation existing now. I hope we will have a stable society and there will not be any need for this legislation in future years. I hope we will see an end to terrorism, the bomber and the paramilitaries and that we will have a settled society where people can live in peace. In the meantime, I think it is bad in this democratic State that we should have an Act like this on the statute book. This is the one opportunity we have of saying: "Allow this Act to expire at the end of one year. If the situation warrants it we can ask for its reactivation". If we do not accept this amendment we may never get the opportunity to repeal the Act and I therefore ask the Minister to give favourable consideration to the amendment.
First of all, I want to thank Deputy O'Malley and other members of my party for giving Deputy O'Connell the opportunity to move his amendment. Had Deputy O'Malley not acted as he did then Deputy O'Connell would not have been able to move his amendment. It was interesting to note, from this side of the House, that no member of his party, or indeed of the Minister's party, was willing to facilitate or help him in any way.
I wish to move amendment No. 4 in my name. This amendment deals specifically with sections 2, 3, 11, 12, 18, 19 and 20 of the Criminal Law (Jurisdiction) Bill.
The Deputy will appreciate that, at present, he may discuss his amendment but may not move it.
That is just a technicality. As I understand it, then, we are discussing it and the moving of it comes at a later stage. The sections which I mentioned relate to the apprehension and trial of prisoners in each jurisdiction and provide for the taking of evidence in one jurisdiction and the trial in another. They provide also for the handing over to the security authorities in Northern Ireland of offenders apprehended by the Garda Síochána in the Republic. To that extent those sections referred to in this amendment introduce a completely new departure from the ordinary criminal law of this country. As amendments Nos. 2 and 3 in my name suggest, it is our strong feeling these sections are contrary to Articles 5 and 6 of the European Convention on Human Rights.
In view of the important and grave departure from the ordinary criminal law involved in those sections, my amendment suggests that they should remain in operation for 12 months only from the coming into operation of this Bill. That would enable the operation of those sections to be examined in 12 months' time by way of a motion before this House. A comprehensive review of the operation of the new sections could be made then by the Minister for Justice and, of course, full debate could take place. There should be some indication within 12 months as to the constitutionality of those sections and the degree to which they depart from Articles 5 and 6 of the European Convention on Human Rights. Indeed, the practical administration of those sections could also come up for review in 12 months' time. Therefore, this represents a very reasonable approach to what is a new departure from the ordinary criminal law of the land.
I should like to draw a distinction between our amendment and the amendment being discussed with it in the name of Deputy O'Connell. He proposes to deal with the matter of review of the Bill as a whole after 12 months. In my amendment I seek only to deal with the sections which relate to the apprehension and trial of what are called fugitive offenders. It is important that we do not go the whole way, as suggested by Deputy O'Connell because, in effect, his amendment would bring the whole Bill under review in 12 months' time and thereby include some very desirable sections in the Criminal Law (Jurisdiction) Bill relating to areas of the ordinary criminal law. In particular I refer to sections 21 and 22 dealing with the amendment of the Larceny Act of 1916, the Criminal Justice Act of 1951 and the Firearms Act of 1925. These are desirable amendments to our ordinary criminal law and should be part of separate legislation. At any rate they are incorporated in this Bill. We have no objection to improvements of the ordinary criminal law of the land and that they be given the full force of the law.
What I want to emphasise in my amendment is that we feel there is a distinction to be drawn between the ordinary criminal law of the land and the special, new provisions being introduced to deal with the trial and apprehension of fugitive offenders. This is a new departure. We want to concentrate the review by the Oireachtas in 12 months' time on how those provisions operate. We have no objection whatever to desirable improvements in the ordinary criminal law being implemented fully. To that extent I would suggest our amendment represents a more rational approach, with due respect to Deputy O'Connell who seeks to include all matters in the Bill — some matters which are desirable — and lump them together with the special provisions to which we take great objection being incorporated in the permanent law of the State without examination by the Oireachtas in 12 months' time.
In regard to the details of the sections concerned, the important sections are 11 and 12 relating to the provisions for the taking of evidence in Northern Ireland, under section 11, and in the State under section 12. The effect of section 11 and the other sections involved is that a man who is free in the State or who has been granted freedom by way of bail order by the courts — in either event, he is a free man in the Republic — may be handed to the authorities in Northern Ireland for the taking of evidence. The dangerous aspect of this is that he may be handed, as a free man in the Republic, into the custody of the police in Northern Ireland; he has no right to be present at the court taking evidence against him in Northern Ireland, except the right to be present in the custody of the police of Northern Ireland. Subsection (2) (a) of section 11 specifically provides that. I suggest that this is a very limited right that considerably circumscribes the defendant's right to proper trial, in particular, his right under Article 6 of the European Convention on Human Rights to have minimum rights when charged with a criminal offence, to conduct his defence in person, to have adequate time and facilities for the preparation of his defence; to examine and have examined witnesses against him in regard to the charge laid against him. I feel I should read paragraph (3) of Article 6 of the European Convention on Human Rights to emphasise my point:
(3) Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
That Article envisages that the accused man will have a free and open right to defend himself, in person, and make all the necessary preparations and arrangements for a fair and proper trial.
Subsection (2) allows the accused the right only to attend to hear evidence against him when he is in the custody of the police of Northern Ireland. This may run counter to an order by our courts granting him bail. The whole purpose of bail is to enable an accused to conduct his defence in a proper manner. This is an entirely new departure in regard to the trial of an accused person and would seem to be in contravention of Article 6 of the Convention on Human Rights. A number of other sections to which I have referred hinge largely on the basic objection I have to subsection (2) of section 11.
We would also like to see section 12 reviewed after 12 months. That section deals with the taking of evidence here for a criminal trial in Northern Ireland. I do not intend to go into the section in detail because I believe it will be largely unworkable. It is very difficult to envisage a situation in which evidence would be taken here in respect of a criminal trial in Northern Ireland because of the enormous difficulties involved in bringing security forces from Northern Ireland into the Republic.
From the point of view of operation, I believe section 11 is the only section likely to be workable and there is a very grave legal objection to the section in that it visualises a free man in the Republic being handed into the custody of the security forces in Northern Ireland. Every accused person has the basic right of being present at the hearing of evidence against him. Being in the custody of security forces to whom he has grave objection will prevent him from organising his defence properly. The alternative is for him not to allow himself to be put into the custody of the police in Northern Ireland.
A totally unconstitutional situation arises, a situation completely contrary to Articles 5 and 6 of the Convention on Human Rights. The accused will not be present at the examination of the witnesses against him. He will not be able to challenge their veracity. The evidence taken in his absence, because of his unwillingness to place himself in the custody of the security forces in Northern Ireland, will be the evidence used against him in the court in this State where he will be charged and tried and the court in this State may proceed to convict the accused on the basis of a written statement of evidence taken in Northern Ireland in the absence of the accused. This is the nub of the situation as I see it.
It is abundantly clear as a result of the detailed exposition by Deputy Collins that we are here moving into new, uncharted territory as far as criminal law and procedure in this State are concerned. It is a fundamental right of any accused person to be present at his trial in order to cross-examine witnesses. The suspension of the provisions of the Criminal Procedure Act of 1967 and many other provisions in this Bill are clearly not in line with the tradition and practice of the criminal law as we know it. The Minister will concede this. He will have to. This is uncharted territory. We are here introducing provisions which limit the rights of an accused while giving to the courts or the police rights they do not now have. Before we write into our statute law something that is inconsistent with normal practice and procedure we should consider the position very carefully and include a power of review for this House. This we must do and this we must be seen to do because it is important not just for the present but for the future record of history.
We may recognise, as Deputy O'Connell said, that we are in unusual and tragic circumstances and the hope is, as he also said, that these circumstances will not continue. The Minister must recognise that these provisions infringe the rights of the accused and I believe the House must be given the authority to come back in 12 months' time and review the operation of these provisions. If we do not do that we are not being mindful of our obligations as a Legislature. We cannot throw away our responsibility. We recognise the Government will push this legislation through. We have made our position clear. We are determined to the best of our ability to oppose infringements on rights or minimise those infringements to the greatest possible extent.
This legislation involves our jurisdiction with — let us face it — a jurisdiction against which, even up to the Order of Business today, we have lodged complaints at the Court of Human Rights, with a jurisdiction against which we have made charges. Under this Bill our agencies will mingle with those agencies against which we have had cause to complain. Under this Bill they will be obliged to co-operate. We still believe these agencies to be less than perfect. Surely, in deference to our institutions and in deference to this House, we must put in some power of review.
This is a new departure. We have no idea how this legislation will work. The Minister cannot tell us and I honestly believe he will not even try to tell us. We have expressed grave reservations. It is significant that Deputy O'Connell has expressed the view he did. I believe that view is representative not just of Deputy O'Connell but of many Members on that side of the House. Our view is known. I believe Deputy O'Connell's view is not unrepresentative. I believe Members on the opposite benches, so obviously absent from the Government benches, would, if they were here, say there is something radically unacceptable in this legislation and ask for a review or some limitation on its application. Our spokesman on Justice has cogently put forward our case. I do not purport to speak for Deputy O'Connell but I understand him to be concerned about the introduction of these procedures and I am of the opinion that he would not object to the Minister's accepting an amendment in the form of that tabled by Deputy Collins. It would be very undesirable for us to let this through as it is in the knowledge that never again may we have an opportunity of endeavouring to avoid the defects which we believe will arise in the course of this legislation. It is all right for the Minister to say that in the event of the manifestation of certain defects he will bring the legislation back to the House but while we have confidence in his integrity, we must ensure, as the legislative assembly, that the legislation will be brought back if necessary. That is the purpose of the amendment and we urge the Minister to accept it.
So far the debate has ranged widely over the Bill. I expect this is because the sections that are under debate, in so far as Deputy Collins's amendments are concerned, are at the heart of the Bill.
During the Second Stage debate Deputy O'Connell indicated his anxiety that the Bill should be of a temporary nature. My recollection of the debate at that stage is that he raised this matter in the context of his being of the opinion that certain of the amending sections were repressive and he drew attention to the heavier penalties being introduced by way of the substantive criminal law amendments. The Deputy raised the question as to whether the onus of proof was being shifted in relation to firearms offences. I dealt with those points in detail when replying to that Stage of the debate. I said then that it would be clear to the House that the substantive amendments to the ordinary law are desirable and are not draconian. By definition all criminal law is repressive in that it endeavours to repress crime.
The amendments to the substantive criminal law are good because they remove anomalies and leave the law tidier and more acceptable in so far as lawyers and others are concerned. Such people will be able to see exactly what is involved. By tidying up the definitions and making the penalties more consistent with the crimes, certain technical difficulties and anomalies are being removed. The penalties provided for are maximum ones but it will be a matter for the court, within the maximum, to apply the penalty appropriate to each case. As I also indicated on the previous occasion the question of the burden of proof is a technical matter and there is no question of an accused person being asked to prove his innocence. I had thought that I had removed much of the Deputy's anxiety in regard to that aspect of the Bill. From what Deputy Collins has said I understand the Opposition to be in agreement with me in so far as the amendments being made to the substantive criminal law are concerned. The Deputy said he would have preferred to see them in a separate Bill. I should not quibble with that but since this vehicle presented an opportunity for making the amendments, we took advantage of it for that purpose.
I suggest that the features of the Bill which concern Deputy O'Connell will not be such as to cause him concern when he considers what I had to say in reply to the points he made on Second Stage.
The parts of the Bill relating to the taking of evidence on commission are temporary because they exist only for so long as the Special Court is in existence. Once the Special Court is disestablished this provision falls. The principle of extra-territoriality remains. After the disestablishment of the Special Court, the trial of an extra-territorial offence will have to take place in the courts here and in these courts all the witnesses concerned would give evidence. We all look forward to the time when circumstances in our country will permit of the disestablishing of the Special Court. When that happy day comes, these provisions for taking evidence on commission, although remaining on the statute book, will be inoperable because the Special Court is the tribunal specified in the Bill.
We cannot blind ourselves to the fact that we are living in an awful time in this island. The phrase "unusual circumstances" has been used by people on the other side to describe current times but that phrase is much too mild because we are living in a time when horrible acts of savagery are being committed. If some of the people who commit those savage acts flee to this jurisdiction I do not think we could hold our heads up among civilised nations unless we were able to take action to bring them to justice and make them amenable for those acts. Because of the nature of the extradition code, the law prevents them from being handed back to the jurisdiction in which they committed those crimes. Therefore, I hardly think that anybody would quibble with our taking steps to rectify that situation.
We must examine the mechanics by which we propose to deal with this situation. Having regard to the realities of life on this island it is unreal to think that many people from the North who would be involved as witnesses to some of these savage acts and, consequently, who would be required to assist in the bringing to justice of the perpetrators of these acts, would not be apprehensive about coming to this jurisdiction because they consider — but consider wrongly — that this jurisdiction is inimical to them and shows that the people here show support for the people who commit these savage acts. These witnesses would be concerned for their safety so it would be closing one's eyes to reality to assume that in all the circumstances they would be prepared to give evidence.
There is no point in providing for the trial of savage offenders unless we provide for a system whereby evidence can be taken against them. It is clear that our courts cannot be given jurisdiction to compel witnesses to come from another jurisdiction. Therefore, unless we have the provision for the taking of evidence on commission the Bill will be useless.
However, while providing for the taking of evidence on commission we write into the Bill, too, strict safeguards to ensure that any such evidence will be full and fair from the point of view both of the accused and of the prosecution, in regard to legal representation and in regard to the presence of the trial judges, giving them a right to ask whatever questions they consider necessary, subject to matters of privilege and so on.
The point has been made that the Convention on Human Rights has been breached. I deny that there is any such breach and I am confident that should anybody attempt to test the Bill on those grounds, his case will fail. If an accused person wishes to go North to hear evidence being taken on commission he must do so in custody. During my Second Stage speech I dealt at some length with the reason for that. What is important is that while in custody the accused would be guaranteed immunity. This provision is written into the Bill and into the reciprocal legislation. He is guaranteed immunity from all proceedings, civil or criminal, while in custody for the purpose of evidence being taken on commission. The Opposition spokesmen so far have not referred to this provision. The guarantee is one that is backed by the full resources of this State. Should there be any breach of it either in the letter or in the spirit, the reciprocal arrangement must cease to operate. This is the sanction to ensure that the guarantee of immunity will be maintained and observed in the spirit and in the letter.
It needs to be emphasised that that guarantee of immunity is there, that an accused person is not being asked to go in custody to the other jurisdiction. If he wants he can go with a guarantee of immunity from all proceedings, civil and criminal, and that includes questioning and interrogation. That immunity must be honoured in the spirit and in the letter. It is important that this be said because that kernel point was glossed over or omitted. Certainly it was not advanced by any speaker on the other side——
When we come to the section we will refer to it. It was not appropriate to do so.
I look forward to hearing it.
I referred to it on Second Stage.
The other point made was that if an accused person decides not to go across for the taking of evidence against him his right to a fair trial would be impugned and thereby diminished. This overlooks the point that if he decides not to go, notwithstanding the very clear guarantee of immunity that is given, he is entitled to be represented by solicitor and counsel who may be representing him at the Special Court here. If we have a situation where an accused person may go with a guarantee of immunity, or if he does not go himself he can send his solicitor and counsel — he can also bring his solicitor and counsel with him — it is unreal to argue that should he decide not to go and not to send his solicitor and counsel that thereby he is denied a fair trial. We must have a sense of realism about this.
I am not terribly impressed with the arguments that he is being asked to deliver himself up to a jurisdiction with which we are in contention before the Court of Human Rights. That is unreal in view of the very proper statement attributed to the Leader of the Opposition last week in Brussels when he called for the support of people on both sides of the Border for their respective security forces. The time has come when the acts of savagery have reached such a pitch that we have to face up to the reality, which is that either we fight against anarchy or it overcomes us. This is part of the fight against anarchy.
It is an important Bill because I think it will end the scandal of the fugitive offender. "Fugitive offender" is a legal term to cover a savage terrorist and that is the kind of person we are after. When one reads the offences covered by this Bill one sees there is nothing there about the person making political speeches or holding political views. They are specific criminal law offences — murder, manslaughter, arson, kidnapping and false imprisonment. They are a horrible litany of offences that are well nigh a daily occurrence in Northern Ireland. If we down here can assist in any way towards the ending of that regime of terror up there we have an obligation to do so.
I concede that this is a novel procedure in our criminal law but we are dealing with a unique situation that can only be solved by devising a novel solution. However, because it is a novel procedure it is not to say it will be unworkable or bad. I have demonstrated here that there are safeguards to ensure that the novel procedures prescribed will not in any way infringe or diminish a person's rights, whether under the Constitution or the European Convention. It is quite clear they are there. In addition, the measure must be of a temporary nature because these novel procedures only subsist so long as the Special Court is in existence. Once it is disestablished these procedures fall and extra-territoriality in the ordinary way resumes. If there is an extraterritorial offence for which extradition is not possible, it can only be tried in the courts here provided the witnesses from the other jurisdiction are prepared to come down here.
I sympathise with the arguments that because it is novel there should be a time limit of one year but it is closing one's eyes to the reality of the situation in this island. The proper time limit is the existence of the Special Court. It was established in the past for the special need of this island to deal with emergency situations and when they ended it was disestablished. The same will happen this time and all of us fervently wish the sooner the better. That is the proper time limit rather than writing in one year. It could be asked why not write in two years or six months? Who is to say what is the proper time? We cannot foretell the future. The time limit should be the existence of the Special Court and that is what is in the Bill.
I have heard the Minister on the points raised but in general what he had to say was an effort to justify the Bill more or less on the basis of a Second Reading speech and it was only in the last minute of his contribution that the matter of a time limit was dealt with.
My mind goes back to this House in May, 1972, when, in a situation of considerable emergency, I had to promote a Bill that subsequently became the Prisons Act, 1972. The circumstances in which that Bill was promoted were that there had been a serious riot in Mountjoy Prison instigated by members of the IRA. A great deal of damage had been done in the prison and, in fact, it became so seriously damaged that it could hold only a comparatively small number of prisoners although its population at the time of the riot was several hundred. We were faced with the specific problem that we had about 40 or 50 prisoners who were dangerous subversive criminals and we had no suitable accommodation for them because of what they did in Mountjoy.
It was clear that the rebuilding of Mountjoy would take several years at least and the provision of other prison accommodation in the State that would be suitable to hold prisoners of that kind would take some years. I introduced a Bill, the effect of which was to allow me to transfer certain types of dangerous subversive prisoners to military custody because of the situation that had arisen in Mountjoy. Military custody was not the kind of custody we were talking about here, the military custody of the British Army or the Special Armed Services. It was the custody of our own Army, in particular the military police of our Army who were subject to the discipline of their own officers who, in turn, are subject to the Government and this House and, where appropriate, they are subject to the civil jurisdiction of our ordinary courts. It was a totally different situation from this.
There could have been no serious belief on the part of anyone in this House that our military were going to ill-treat in any way anyone transferred to military custody under that legislation. However, at that time there was great opposition to the Bill from those who now sit in Government and those who support them. There were very strong suggestions that while the Bill might be necessary for a short time because of what had happened in Mountjoy it should be only for a very short period. Amendments were put down by people who are now members of the Government seeking to limit the operation of that Bill; in one case it was suggested it should be for three months; in the case of another Member who is now a Minister six months was suggested and another Member suggested 12 months.
I said the best estimate I could make at that time, acting on the basis of the advice available, was that it would be at least three years before suitable alternative accommodation could be made available for the prisoners in question. I suggested to the Opposition that, while I did not see the necessity for a time limit because I did not see anything in the Bill that needed curtailment or was in any way dangerous or inimical to human rights of those who might be affected, in a spirit of compromise I was prepared to put a three-year limit on the Bill which was the period I was advised was the minimum necessary. That was not acceptable. The very strong opposition to the Bill continued and I was in the position that we had approximately 40 men in custody in the Curragh.
Strictly speaking, their custody was not lawful because they were, effectively, in military custody although they were, technically, in civil custody because we had two prison officers there to try to give a veneer of legality to the whole situation. Notwithstanding the fact that that was well known the opposition to that Bill continued on the grounds that it was highly undesirable and so on. Finally, on the third morning of the debate I came in here and said to the Opposition that the Bill was terribly urgent, that I was prepared to make a reasonable sort of compromise that was anyway possible in order to try to secure its speedy passage. I agreed to a two year limit on the Bill although I knew at that time it would be inadequate.
That was finally agreed to. As far as I recall the Fine Gael Party did not vote against the Bill and some Members of the Labour Party did. The Bill passed later that day and passed through the Seanad the following day. I viewed with no little amusement, indeed with some irony, my successor, who led the opposition to that Bill and who called for a very short life to it, coming in here in 1974 and asking the House to agree, by way of a further Bill to the extension of the Act of 1972 which the House very readily agreed to. There was none of the histrionic nonsense on that occasion that we saw in 1972 because we saw, as I forecast at the time, that the need was still there.
I believe it is only now, four years later, that suitable alternative accommodation is becoming available and that a new prision is nearly complete in the Curragh. I do not know if it is proposed to extend the 1972 Act, as amended by the Act of 1974, further. Certainly at that time the necessity for time limits on Bills of almost any kind to deal with security matters of the sort we are talking about for the most part in this Bill was very clearly felt. The present Minister for Justice was to the forefront in making the arguments for a time limit on the Prisons Act, 1972 even though its only purpose was to put a certain limited number of prisoners into the custody of the Army.
I ask the House to contrast the provisions of that Act with what is before us today and to look at what is here. If the positions were reversed and I had the temerity, as Minister for Justice, to introduce a Bill of this kind does not everyone here, including the Minister for Justice, know very well what Deputy Cooney's reaction to such a Bill would be? The outrage and the horror that would be expressed hardly bears imagining if we have any memory at all of the outrage and horror that was expressed from these benches between 1972 and 1973.
Although we think much of this Bill is wrong and is unworkable we have not put up any obstructive opposition to it. We have criticised as we thought it necessary to do so. Our criticisms are those of many sections of the general public but they have for the most part been disregarded. There is one final gesture at least we can make in relation to the Bill, if we are unable to stop its passage because of the operation of the Government Whip, notwithstanding the feelings of various Deputies on the Government side, that is we should seek now that some time limit be put on the Bill, not on it as a whole, as Deputy O'Connell suggested, but on certain parts of it, not because they are novel but because they are the sort of things we do not think should exist permanently as part of our criminal law.
Deputy Collins has been very careful in amendment No. 4 not to make it a blanket amendment of postponement for 12 months but simply to pick out sections which are unusual or unique to which objection is taken. The objection that is taken to several of those sections by us is not based on what they are endeavouring to do and in many cases is not based on the principle of what is involved. Our objection is based on the methods which it is proposed to use allegedly to achieve these ends. It is worth nothing that the only really substantive thing the Minister said at the end of his reply to Deputy Collins was that there was already a limitation, so far as the taking of evidence in Northern Ireland was concerned, under section 11 because it could only come into operation while the Special Court was sitting and the Special Court would only sit when a declaration was made by the Government under the 1939 Act. He said that was not a permanent state and, therefore, to some extent the procedure was subject to that limitation in time and when things quietened down sufficiently in the country to enable the Special Court to be disestablished then these provisions would no longer form part of the law. The Minister may well have unwittingly misled the House in saying that because the way he said it gave the impression that not alone section 11 but all the other sections, which are set out in Deputy Collin's amendment, would not operate.
Let me clarify the matter by saying that I said that the extra-territorial offences, which are those created by sections 2 and 3, would continue to operate.
I am glad the Minister has clarified that because I believe some Members of the House may well have had the impression that all these sections would lapse if and when the Special Criminal Court lapsed. I was going through the sections while the Minister was speaking on this point and the only one which would lapse is section 11. Therefore, we would have the position that sections 2, 3, 12, 18, 19 and 20 would continue in force irrespective of whether or not the Special Court was sitting. Some of these have very serious and long term effects. For example section 18 takes away the right of the defendant to require the attendance on the taking of depositions of a witness against him. That is a very serious matter.
It is not an absolute ending of that right. It is only provided that the justice is satisfied that the person is outside the jurisdiction and it is not reasonably practicable to secure his attendance.
The only way the justice could be satisfied, with the greatest respect to the Minister, that it is not reasonably practicable to secure the attendance of a witness is when the witness is outside the jurisdiction and the subpoena or a witness summons cannot be served on him. All a witness, who does not want to give evidence, has to do at a deposition here is simply stay outside the jurisdiction and he cannot be served. The justice cannot but be satisfied then that it is not reasonably practicable to secure his attendance before the justice for his examination. If he is outside and stays outside the jurisdiction, the justice must be satisfied that it is not reasonably practicable to secure his attendance.
Every time one reads this Bill one sees more in it, unfortunately; not more things that would help to counter violence or subversion in either part of this country, but things which could be used — and for all I know and we must assume will be used — in relation to cases which have nothing to do with so-called political violence and subversion. For example, it could be a case of a man who was up for a non-violent crime or alleged offence which has nothing to do with violence, subversion or anything of that kind. If, for example, some person makes an allegation to the police that somebody else has defrauded him and makes a long statement to that effect, and the Director of Public Prosecutions serves that statement on a defendant in a book of evidence, and if the person making the statement decamps to Northern Ireland or England, and if the defendant — as he is perfectly entitled to do — requires that man to swear to the truth of what he has alleged in his statement, his right to have him there is taken away permanently by section 18, because that section is not subject to the limitation in time that the Minister is talking about. In my view, the Minister cannot be so insincere that he wants that kind of thing to happen. I believe that, no less than myself or Deputy Collins, he does not want that to happen and he has a way of ensuring that it will not happen, that is, to accept amendment No. 4 in the name of Deputy Collins.
If it is objectionable in principle, as the Deputy seems to be arguing, allowing it on the statute book for a year does not meet the Deputy's objection. His amendment should be to repeal it entirely.
There are many things in this Bill which I would like to see repealed entirely but we clearly have no hope of having them repealed. The Minister is adamant about that. If the Minister is agreeing now to take out section 18, which I urge on him, we would gladly withdraw the amendment so far as it refers to section 18. When the Minister considers the effect of section 18 he may well agree with me that it is highly desirable that it would be withdrawn. Section 11 is the only one which is subject to the rather indefinite time limit the Minister referred to. We should look at the reality of the situation here at the moment.
Can any of us seriously say that we believe the Special Criminal Court will not exist in six, 12 or 18 months' time? Can any of us seriously say we believe there will not be a need for this court in six, 12, 18 or 24 months? I do not think we can. It has existed for over three-and-a-half years. I am afraid the general security situation of the country as a whole is not improving. Some recent events would lead one to believe that it is rapidly disimproving and is a great deal worse than it was some years ago. Is it not illusory for the Minister to suggest that in a sense there is a time limit on section 11, because in practice it might not operate for a number of years to come? All of us would fervently wish that it were not so, but if we are honest with ourselves we can see the Special Criminal Court still existing in this country in several years' time.
I do not want to refer again to all these individual sections which have been referred to by Deputy Collins and the Minister. We will have the opportunity of debating the merits or demerits of each as we go along. It suffices to say that there are sections here which are unusual, to say the least of it, unworkable unquestionably and it is widely believed that several of them contravene the European Convention on Human Rights. There is doubt about the constitutionality of others. These beliefs are pretty widely held by diverse groups throughout the country. In all the circumstances, the least that might be done is to put a limitation of time on the operation of some of those sections.
If 12 or 24 months prove to be too short, the Minister can come back here as he did in 1974 and extend the period. There probably would not be any great opposition to a reasonable extension if it were found necessary. But to leave these things as a permanent part of our criminal law in my view is quite wrong. The Minister suggests that, if anybody believes the European Convention on Human Rights is contravened by some of the sections included in Deputy Collins's amendment, we should test it. That is a rather facile suggestion, to say the least, on the part of the Minister. As far as I recall we, as the Government of Ireland, started the action against the Government of the United Kingdom in the summer of 1971. We are now in January, 1976 — four-and-a-half years later — and we have not got even the preliminary decision as yet. We have it from the papers because it seems to have been leaked all over Europe. Maybe the Minister also has it because the questions were refused today. They were not allowed let alone answered. Officially we have not the preliminary decision.
It is still sub judice.
The decision of the commission on this matter, so far as one can draw an analogy with our own law and legal procedures, is roughly equivalent to the decision of a District Court in an indictment case, in other words whether there is a case to send forward for trial.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
I was referring to the Minister's suggestion that there should be a reference to the European Commission on Human Rights and, I suppose, subsequently to the European Court for a ruling as to whether or not certain sections of this Bill which are included in those enumerated in Deputy Collins's amendment did or did not contravene the European Convention on Human Rights. I am not certain at all that there exists in the European Court the same type of procedure as we have in the High Court or the Supreme Court here, where a citizen is entitled to bring what is called a declaratory action in the High Court for a ruling as to whether or not a section is ultra vires the Constitution or otherwise ineffective.
I believe that such a right very probably does not exist in the European system and the only person who could in those circumstances take action in the courts would be somebody who was physically interfered with in such a way that he believed or alleged that his rights under the European Convention were infringed and that interference was done under a section in this Bill which he felt contravened the Convention.
As I pointed out before the interruption, even if a case was started immediately after the passage of this Bill — we have the experience of the case taken by the Government here against the British Government in 1971 which now after the passage of four-and-a-half years still has not got to the stage of a decision on the preliminary question of whether or not there is a prima facie case to send to the court to try — it is quite illusory for the Minister to suggest to this House or to anybody who might be affected under this Bill that they have any useful way of going to the European Court on Human Rights to have any part of this Bill, or this Act as it would be then, declared to be in contravention. It would be several years before any decision would be made there, and whatever terms of imprisonment might be imposed on someone under this legislation might well have long since expired before any decision would have been obtained in Europe. We have complaints from time to time of delay in the law in this country which are sometimes quite justified, but the sort of delays we know are a pale shadow of what appears to be accepted as normal in certain of these European institutions.
As I say, I do not want to go into the various other sections in detail now. I propose to avail of the opportunity to speak on them as each one comes up. But I do want to remind the Minister for Justice that in 1972, on a Bill the importance of which was only a fraction of this and under which the potential danger to the rights of the citizen was nil, because they were simply being transferred from the custody of our own prison officers to that of our own Army, he made a stronger case than anyone else for the necessity for a time limit, and in order to meet him and to meet his colleagues who are now in Government, I agreed to a time limit even though I know it was too short, and I was justified in my belief and knowledge that it was too short, because ironically my own successor, Deputy Cooney, had to extend it.
The circumstances there bear no relationship whatever to the circumstances of what is contained in this Bill, and if there was a need for a time limit on that Bill, which I did not altogether accept but which I did agree to at the time, there is certainly ten times more need for a time limit on this Bill, not on the whole Bill because some of it relates to the normal substantive criminal law—and that is recognised by Deputy Collins—but on certain sections of this Bill on which very clearly there is need for a time limit. I believe some of the sections should not be in it at all; I made that clear, but if we are going to be lumbered with them anyway, let us at least not be lumbered with them forever but let us have some reasonable limitation on the period of time for which they will form part of the law of our country.
We are dealing with two amendments together, that put down by Deputy Collins and an amendment put down by Deputy O'Connell. I suggest that the case for our amendment in the name of Deputy Collins is by far the strongest and merits very serious consideration by the Minister. If it comes to the point, I will certainly vote for Deputy O'Connell's motion in the event of Deputy Collins's motion not succeeding, because, while amendment No. 4 is the more desirable amendment to adopt for reasons which have been very fully explained, I still see considerable merit in Deputy O'Connell's amendment in principle.
The philosophy behind both amendments is the same. I see it as a wish to express a positive distaste, not necessarily for this legislation, but for legislation of this order. I think that sort of distaste is shared by all right-thinking legislators. No legislator likes to deal with repressive legislation of any sort and everybody, including the Minister, admits that this is repressive legislation. We would all prefer to deal with law reform, enlightened improvements to our body of law, better family law, laws to bring about improved social justice in different areas.
Unfortunately, it is not a perfect world and unpalatable things have to be done by legislators in the public interest from time to time. We have had to do them when we were in Government. I personally had to do them when I was Minister for Justice. In the order of things, every Minister for Justice, even in the most civilised country, will have to do things from time to time which are unpalatable and distasteful but necessary. That is the way in which we should approach this legislation. By adopting either of these two amendments we can indicate that this is not the sort of legislation we want to pass.
If it has to be done, and if the Executive in the full discharge of their responsibility insist that this legslation be passed, we are entitled to ask the Government to indicate that they do not like it any more than we do by putting a limit to its duration. I think it is a very fair proposition for us to put to the Government that the Government and the Opposition should, in effect, say to the nation: "This legislation is deemed to be necessary in the interests of public safety and public welfare, but it is of such a nature that it is not the sort of legislation we would like to see in permanent form as part of our statute law. We will get rid of it at the earliest possible moment and we will write into it the date of its own expiration." That is a fairly common practice in democratic legislatures. It is one which we should certainly adopt on this occasion.
The objection to Deputy O'Connell's amendment is that there are some sections in the Bill which the Minister for Justice has told us, and quite rightly so, constitute normal improvements in our criminal law. They are the sort of amendments to the criminal law to which any Minister for Justice in any legislature which was anxious to keep up with the times and have a modern corpus of statute law would be giving effect. Personally I am delighted to see the section dealing with aggravated burglary which is becoming a very serious menace particularly in this city. Deputy O'Connell's amendment would have the effect of bringing these sections to an end after 12 months as well as all the other sections. To that extent I think our amendment is preferable. Our amendment would have the effect of bringing the unrepresentative and undesirable sections to an end after 12 months, while leaving extant those sections which constitute normal improvements to our criminal law, and to which nobody has any particular objection.
Here I might say—and the Minister has admitted this—it would be infinitely desirable if these normal improvements to our criminal law were incorporated in a general reforming statute. Criminal law being so important, and having the impact it has, should not be dealt with in any tinkering way. Whereas one can sympathise with the Minister's wish to avail of this opportunity to effect these specific improvements, nevertheless, on the whole, I think everyone would prefer that, if any changes in the criminal law were to be made, they would be made in a comprehensive integrated statute where everything could be seen side by side with everything else.
That is the way to reform any branch of the law and particularly it is the way to reform the criminal law. In any event, the Minister has availed of this opportunity—and nobody will object very strenuously to what he has done—to make these changes. While Deputy O'Connell's amendment would have the effect of bringing these changes to an end, as well as the Bill as a whole, I would certainly be prepared to go along with his amendment in my anxiety to ensure an expression in this House that this is not desirable legislation and that the House is prepared to tolerate it and put up with it only for the minimum amount of time necessary. I suggest that is the way in which Deputies should approach these two amendments.
I am reinforced in my wish to have a limitation of duration written into the Bill by studying the document, the report, from which this legislation emanates. This legislation is a concept of the Sunningdale Agreement. It was agreed at Sunningdale that the legal problems raised at that time should be referred to a very special, expert and high level commission. They were so referred and a commission were appointed and duly reported. I want to refer the House to the report of that commission. It is the Law Enforcement Commission Report which was made to the Minister for Justice of Ireland and the Secretary of State for Northern Ireland. I quote from paragraph 2 of chapter I of the report. These distinguished lawyers said:
It is essential, in our opinion, that the practical measures that are taken should not infringe the right to a fair trial which each jurisdiction cherishes and which is protected by the Constitution of Ireland or by any international convention or declaration to which either Government is a party.
Paragraph 3 states:
At the outset we appreciated that we were being invited to consider how best to introduce into the two legal systems some special and limited provisions to deal with a special problem. Accordingly, we have accepted as our basic premise that any proposals we make should be precisely defined and should not extend beyond the need created by the problem.
They are very important sentiments expressed by that commission. They were very clearly directing their minds to a particular situation of limited duration. Admittedly nowhere in the words themselves do they indicate that the measures they propose should be of limited duration, but I think it is implicit in what they say. I should like at this stage to give another quotation from what they said in support of that:
Though the problem is urgent and serious its solution requires not far-reaching law reform but immediate practical measures to bring a limited, though very dangerous, class of offender to justice.
In that quotation there is a clear indication that the Law Enforcement Commission did not particularly like the proposals they were making, but were prepared to put them forward for precisely defined objectives and not to extend beyond the need created by the problem. We can find in those words very real justification for asking the Minister to make the provisions of this Bill of a temporary nature. The commission were anxious to deal with the brief handed to them by the parties who came together in the Sunningdale Agreement, and no more. They were putting forward proposals which were limited. I suggest limited in power, limited in their ambit, and also, I believe, implicitly in what they say, limited in time.
The Minister, by way of interruption, posed the question to Deputy O'Malley: if the Bill is objectionable in principle what is the point of making it temporary?
On a point of correction, that was in relation to a specific section.
I just want to deal with the general argument. It is justifiable, sometimes, to accept things which are objectionable in principle but in doing so to make it clear that they are only being accepted under duress because of the situation and that they will be got rid of at the earliest possible moment. It is legitimate for us to argue here that because the Bill is objectionable in principle we should seek to have it dispensed with at the earliest possible moment.
The Minister, in opposing the amendments, made three points and I should like to deal with them now. He dealt with the question of the Special Criminal Court and in that regard his argument is double-edged. Some people have criticised the Bill in general on the basis that it institutionalises the Special Criminal Court and the Minister has been at some pains to rebut that accusation. In dealing with these amendments today he said the Bill was, in effect, temporary because the special provisions in it in regard to the taking of evidence in the North of Ireland on deposition are contemporaneous with the Special Criminal Court and if the Special Criminal Court is stood down those provisions disappear with it. That is the position.
If the Special Criminal Court no longer exists the power to take evidence on desposition in the North of Ireland goes with it. The Bill will continue to exist and be operable by the ordinary courts but that particular power goes at the same time as the Special Criminal Court goes. Surely, if the Minister wishes to argue that that situation makes the Bill temporary in itself, it is equally valid to argue on the other side that that situation creates a need to keep the Special Criminal Court in existence. I am sure we all agree that the provisions of this Bill would become largely inoperative if the power to take evidence on deposition in Northern Ireland was not included in it. If those powers are to go when the Special Criminal Court goes there is every reason on the part of the Executive to wish to keep the Special Criminal Court for as long as possible if only to keep those provisions in existence. I suggest to the Minister that his argument that because the provisions in relation to evidence on deposition will disappear with the Special Criminal Court is one in favour of regarding this Bill as temporary does not stand up.
The Minister referred to a point which the Parliamentary Secretary to the Taoiseach, and myself, adverted to during the Second Stage debate. Both sides see this point from different aspects. The Minister, in arguing for the provisions for the taking of evidence on deposition said it was possible to visualise situations where witnesses from the North of Ireland would not be prepared to come here because they would be apprehensive and, therefore, it would be difficult to institute prosecutions. That is a valid point but if it is valid from the point of view of prosecution witnesses it is more valid from the point of view of defence witnesses. Surely the Minister must see that if a person is prosecuted here and the witnesses on whom he could rely to clear him of the charge were apprehensive about coming here it is a more serious matter than the failure of prosecution witnesses to come here and assist in the prosecution of the charge. The Minister is resorting to very double-edged arguments in this regard. One of the criticisms made against the provisions of this Bill as far as the accused is concerned is that the accused will be unable in certain circumstances to get witnesses to testify on his behalf because of the situation that prevails in the North of Ireland.
Defence witnesses can also be heard on commission in the North if they do not wish to come down here.
I know, but I am dealing with the Minister's point in regard to witnesses coming down here. The Minister used the argument about prosecution witnesses being apprehensive.
Or defence witnesses; it applies to either.
But it is more important in the case of a defence witness.
I agree it is equally important but in the case of prosecution and defence witnesses if they are apprehensive their evidence can be taken on commission in the North.
We are on some common ground there. The Minister thinks that from the point of view of the prosecution this is a danger and I suggest it is a more serious danger from the point of view of the defence. The Minister sought to persuade us that an accused person could quite safely go North to sit in at the taking of evidence on deposition in his own interest.
On commission. The Deputy said, "on deposition".
That is an important aspect of the Bill. It is crucial to the Minister's defence of the provisions that an accused person can go North and be present when evidence is being given against him and taken on commission by the commissioners. The question that arises is: would an accused person be prepared to go to the North? Could he travel North with a feeling of safety and security? The Minister has told us that there are all sorts of guarantees. The big argument he used to persuade us that everything was all right in this connection was that if these guarantees were not adhered to, if the authorities in the North do not honour their obligations, the whole thing will break down. Surely, in support of that, if the Bill was declared to be of limited duration and could only be extended by this House is that not a persuasive argument to everybody concerned, whether they are Northern authorities or not, to ensure that the terms of the Bill are scrupulously and honourably adhered to? From that point of view the amendments which seek to place a limit on the duration of the Bill are worthy, and from that point of view, apart from any other, the Minister would be entitled to support either of the amendments.
I have other arguments to make in favour of the amendments but I will refrain from doing so because they would touch on the European Convention on Human Rights and we will be dealing with that aspect on Deputy Collins' other amendments, Nos. 2 and 3. Therefore I do not wish to be repetitive, but I wish to say at this stage it is our view that in many respects this Bill is undesirable and that it should be seen to be terminated on its face.
One of those compelling reasons is that we are founder signatories in good standing, something we can be proud of, of the European Convention on Human Rights and we should be totally averse to doing anything to affect our international reputation in that regard. I am afraid this Bill in many respects brings us in conflict with the convention.
For that reason the Bill should be seen to be of a temporary nature. I will not elaborate on how the Bill is in conflict with the convention because we will have an opportunity of doing that on amendments Nos. 2 and 3. I have outlined the perfectly valid ground for making the Bill of a temporary nature and for supporting either amendments Nos. 1 or 4, depending on how much importance you attribute to keeping in being ordinary changes in the criminal law.
Apart from the arguments made by Deputies Collins, O'Kennedy, O'Malley and Haughey, I strongly support the amendment in the name of the spokesman charged with the shadow portfolio of Justice. The arguments already made by the Deputies mentioned do not need repeating and I will not take up the time of the House doing so.
However, it is well we should make it clear that in some way we have been charged with trying to hold up progress on the Bill. The Leader of our party made the position clear in that respect. I would remind the House that the Bill was sent to the Seanad and ordered to be printed on 10th April, 1975, and that here we are dealing with the Committee Stage only, almost a year later. Therefore, when somebody suggests that the Opposition are attempting to delay the progress of the Bill and examines the progress of the Bill from its initiation in the Seanad, down through the slow tortuous legislative pipeline to the Dáil, it will be found that it is the Government who must be considered guilty of delaying the progress of the Bill. If the legislation were of such urgency, why did the Government not give it priority in the House? We know the Government's legislative record since they came into power almost three years ago, a pretty dreadful record.
The Leader of the Opposition indicated on behalf of the party, who subscribe to his view, that we are not against the intention in the Bill of bringing to justice those who are guilty of crimes either in the name of the UK according to the Loyalists, or of the Republic by those who describe themselves as Republicans, but a real case has been made for an annual review of this legislation.
The history of the administration of justice in the North East of Ireland in the past six years has been dreadful, to say the least. To have any meaning at all, justice must be seen to be applied equally to all sections and there is no gainsaying that justice was not applied equally according to the concepts of the democratic nations. There was a deliberate effort made by the Government in an artificial State deliberately to preclude the minority from all opportunities, a deliberate and successful attempt to exclude the minority from an equal application of justice, to exclude them from positions of prominence which by ordinary decent standards they had the ability to attain.
It has been well settled on this side of the House that we have no time, good, bad or indifferent, for the bomber, the murderer, the kneecapper, the sectarian assassins of whichever side of the so-called sectarian divide. It has been suggested by Deputy Haughey that when times were tough in the climate of the nation we introduced what might be considered in times of peace to be repressive legislation. Sometimes the climate of the nation demands that legislation be brought in to protect democratic institutions. If it was necessary to introduce legislation of that sort, Fianna Fáil were never found wanting. That is what sickens me about this Government. Day in, day out they set themselves up as a law and order Government as if they cornered the market on law and order. Nothing could be farther from the truth. Any Government charged with the governing of a country must as a matter of duty protect what they consider to be the best interest of that country and its people whom they represent.
I am anxious that the Deputy confine his remarks to the amendment before the House.
It is something that grates on me when I hear the Taoiseach snarling about law and order. One would imagine he should receive daily honourable mention for so doing.
We say that not even the minimum standards required by our adherence to the European Convention on Human Rights are incorporated in this Bill. It is as well to put on the record a communiqué of the Council of Europe dated 21st December, 1971, not to be published before Thursday, 23rd December, 1971 entitled "Ireland Against the United Kingdom". It is an important document because it strengthens the argument put forward by this side of the House in regard to the minimum standards of human rights demanded in legislation even in times of difficulty. This document is available to any Deputy in the Oireachtas Library, to anybody who may be interested in researching matters of this nature. There is no answer to this document in relation to the need for an annual review, as is sought in the Fianna Fáil amendment in the name of Deputy G. Collins. I would urge the House to consider the Fianna Fáil amendment very seriously, with its call for a 12-monthly review of the legislation proposed by the Government.
This communiqué sets out very briefly that on the 16th December, 1971 the Government of Ireland filed with the European Commission on Human Rights an application in accordance with Article 24 of the European Convention on Human Rights. It continues to say that the Irish Government first refers to the Civil Authorities (Special Powers) Act, Northern Ireland, 1922, and the connected Statutory Rules, Regulations and Orders and submits that this legislation is in itself a failure by the United Kingdom Government to comply with the obligation in Article 1 of the convention to secure to everybody within its jurisdiction the rights and freedoms defined in Section 1 of the convention. It further says it is also submitted that the methods employed or permitted by the United Kingdom Government in the implementation of the legislation constitutes an administrative practice in breach of Article 1.
The communiqué goes on to say:
The application then refers to certain deaths in Northern Ireland in August and October, 1971, and it is submitted that this constituted a breach of Article 2 which guarantees the right to life.
The application further refers to the taking into custody of persons on or after 9th August, 1971 under the Special Powers Act and alleges that they were subjected to treatment which constitutes torture and inhuman and degrading treatment and punishment contrary to Article 3 of the Convention. In support of this allegation, and particularly as regards about 90 cases, the Irish Government has submitted statements, medical evidence and the text of the Compton Report.
I am afraid the Deputy is getting away from the amendment before the House.
I am not getting away from the amendment.
The Chair has stated that it is not relevant to the amendment before the House.
No, Sir, it is relevant and I shall make it relevant. I have not been allowed complete my argument——
The Deputy will not circumvent the ruling of the Chair.
On a point of order, this is so interesting and pertinent to the matter before us that the members of the Party putting it through should be got in to listen to it.
I think the Deputy is definitely on the way back.
A quorum?
Perhaps they might contribute something.
I think Deputy Coughlan made a remark the last time asking who wanted it.
I take it the Deputy is calling for a quorum.
Yes.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
At any rate, I am delighted to see that the Government have a quorum. Deputy Bruton says I am wasting time. Before he goes perhaps he would like to hear a dissertation on the length of time it took this Bill to come before the House. I have already put on the record who was and who was not wasting time.
It is an insult to the House, a Cheann Comhairle, the remark by Deputy Bruton that the quorum bells were just a waste of time. I heard it said from here.
I assure the Deputy I heard no such remark.
I heard it.
I did not.
Well, I did, Sir, and I was further away from him than you.
That is a reflection on the Chair.
What about Deputy Bruton's remark?
It ill behoves any Deputy of this House to dispute the word of the Chair but, coming from where it does, it is not unexpected.
I have assured the Deputy I did not hear that remark.
Deputy Bruton has not time to waste.
I was just quoting from the communiqué which set up the case of Ireland against the United Kingdom. I seem to have run into some difficulty as to whether I should be allowed by the Chair to continue along those lines. It seems to me that the full content of that communiqué issued by the Council of Europe has very strong relevance to the case I make for the Fianna Fáil amendment in the name of Deputy Collins. It seems to me the document summing up the reason for taking that case has considerable relevance and considerable merit in its relevance.
The fifth paragraph states:
The Irish Government also claims that internment without trial, as carried out in Northern Ireland... constitutes a violation of Article 5 (which guarantees the right to liberty and security of person) and Article 6 which guarantees, inter alia, the right to a fair hearing by an independent and impartial tribunal of the Convention.
Finally, the application submits that the exercise by the United Kingdom Government, and by the security forces under its control, of its powers to detain and intern persons is carried out with discrimination on the grounds of political opinion and is thus a breach of Article 14 of the Convention (which prohibits discrimination on various grounds) in connection with Articles 5 and 6. Similar allegations are made in respect of the exercise of the powers to search homes and certain other matters.
The penultimate paragraph of the document is as follows:
Under the provisions of the Convention the Commission will first have to decide on the admissibility of the application. If the application is declared admissible, the Convention will then, in accordance with Article 28 of the Convention, establish the full facts of the case and at the same time will be available to the Parties with a view to securing a friendly settlement of the case on the basis of respect for human right.
Of course, the friendly settlement situation has not arisen. The matter has gone to full decision and that is another day's work.
If no friendly settlement is reached, the Commission will make reports on the cases to the Committee of Ministers of the Council of Europe. It will then be for the Court of Human Rights or, if the cases are not brought before the Court, for the Committee of Ministers, to decide whether or not there have been violations of the Convention.
The leader of my party, the Leader of the Opposition, Deputy Lynch, was prevented by the Chair today from asking a question as to whether the final report had come and was available to the Government in connection with the case of Ireland versus the United Kingdom. That was ruled out of order by the Chair. That is the Chair's prerogative and it is not my intention to question his ruling on this occasion. Nevertheless one can only speculate as a result of what one reads in the newspapers as to whether in fact this decision is available to the Government. We believe the Government have the decision but they will not publish it because it does not suit them to publish it during the course of the debate on this Bill.
I am sorry to interrupt the Deputy but the amendment before the House deals with the period during which the legislation will be in force and I would be grateful if the Deputy would relate his remarks to the subject matter of the amendment.
To return expressly to the amendment, having put on record the reasons for the taking of the case of Ireland versus the United Kingdom, it appears to me that if a situation existed as set out in that communiqué in the North East of this country in 1971, it is possible the same situation could arise again in 1976, 1977, 1978 and 1979? We, a sovereign state, had to take a case against another sovereign state. In those circumstances the Fianna Fáil amendment must be seen in its true light. Injustice was worked to the nth degree. It was alleged by one Government against another that they breached article 2 of the Convention on Human Rights which guarantees the right to human life. Having breached that Convention the allegation quite clearly is that that Government are guilty of of murder. Article 5 deals with the liberty and security of the person. Article 6inter alia, deals with the right to a fair hearing by an independent and impartial tribunal.
I accept that this Bill is designed to deal with people who, it may be alleged, commit the various crimes set out in the Schedule: murder, manslaughter, malicious damage, offences agains the person, explosives, robbery and burglary, firearms and so on. One of the real beauties of real democracy — I mean beauty in its real sense — is its subscription to the rule of law. That rule of law should be applied impartially. Everyone should be given a fair hearing. That is something that should be insisted upon. Despite the fact that there may be lawful allegations against some who would try to drag down this country, they are nevertheless entitled to a fair trial. It may be alleged that they did not give those they killed or maimed any trial whatsoever. Accepted, but nevertheless we must adhere to certain minimum standards of justice and of human rights and we believe this Bill must adhere to the rights set out in the European Convention.
I am afraid, Deputy, we are dealing with the amendment now. This is not the occasion for a Second Reading speech. The Deputy is not relating his remarks to the amendment.
On a point of order, is it in order for a Member to give reasons why the particular section of the Bill should have a time restriction?
Of course it is, but the Deputy is straying very far from the amendment before the House.
One has to interrelate a complex and confusing situation. I am posing the question whether there is a possibility that a situation which arose in the past may not arise again in the future.
If we are to deal with that part of the country against which these allegations are made, allegations which we believe will be substantiated and if we believe that that situation may exist again, should we not have a review of the legislation as set out? There is an unanswerable case to be made for such a review. It is not good enough for the Minister to dismiss the amendment proposed by Fianna Fáil simply by saying that some parts of the legislation as enshrined in the Criminal Law (Jurisdiction) Bill, 1975, will fall when the Special Criminal Court goes into a limbo. It was not our desire that there exists an instrument such as the Special Criminal Court but the exigencies of the time demanded that such a court be set up and in those circumstances we realised where our duty lay.
I support strongly the point of view expressed by Deputy O'Malley in connection with the facilities in respect of prisons sought by those who were then in Opposition in relation to a time limit on the legislation that was going through the House. Apparently those people had great difficulty in accommodating their former liberal consciences in relation to a reasonable request that the provisions of that Act remain in existence legally for three years. After considerable pressure and requests they conceded that a review in relation to that legislation should take place after a period of two years. I recall clearly that Deputy O'Malley, as Minister for Justice, leaned over backwards in that regard. However, the former liberal consciences had to come before us cap-in-hand in 1974 asking that that legislation be continued, legislation to which they objected strongly at the time of its introduction. I support this amendment in the name of Deputy Collins.
We have indicated clearly our objections in principle to this Bill and we have stated our reasons why it will be unworkable in the situation that exists on this island. In his amendment Deputy Collins indicates the sections to which we have particularly strong objections, but our difficulty as an Opposition is that since the Government have a majority the Bill is likely to be passed. Therefore, we are obliged to endeavour in so far as possible to persuade the Minister to limit the functioning of the Bill and, in particular, those aspects of it that we see as most objectionable. Deputy O'Connell has expressed reservations in relation to the entire Bill. However, there are some sections of it to which no reasonable person could object. For example, section 5 represents an improvement on the Larceny Act, 1916 and strengthens the criminal law code in that respect. Similarly, the following section, which relates to the same Act, will strengthen also the functioning of the criminal law.
Again, section 21 can hardly be objected to. But having regard to our reservations on the Bill in general and apart from the case that we shall be making in regard to other sections relative to the Convention on Human Rights, our concern is that if the Government are to insist on putting the Bill through its duration should be as limited as possible.
The Minister has said that he does not see the need for the amendment proposed by us since the use of the Bill will be limited to the duration of the existence of the Special Criminal Court. But he knows that that court would not be likely to be in existence were it not for the situation that exists in the Northern part of this country. Since the best efforts of all those trying to bring that situation to some sort of resolution do not seem likely to be rewarded, it is not likely that the Special Criminal Court will cease to exist in the immediate future. So far as any reasonable person can foresee it may be years before that court, which most democratic people would regard reluctantly as being necessary, will no longer be needed.
It is possible to justify the existence of an instrument of that nature if we are to have regard to the defence and protection of our democratic institutions, but I cannot apply the same criteria to the sections of the Bill that are referred to in Deputy Collins's amendment since those sections relate to the introduction into our law of extraordinary legislation. It is legislation that is fraught with the greatest dangers in many respects.
In his earlier reply the Minister referred to remarks made on this side of the House in regard to section 11 and said that the defendant in surrendering himself or having to surrender himself voluntarily to custody of the security authorities in the North of Ireland would have immunity. As I understand the situation there could be many people liable to some form of prosecution who would not believe what the Minister is saying with regard to immunity. He may be quite right but he should remember that we are dealing with human beings in a human situation, with the sense of credibility of any individual placed in such a situation. It is reasonable to assume, as speakers on this side inferred on Second Stage, that there can be no doubt about the lack of confidence many people would have in the state of law as it exists in the North of Ireland, and the fact that there are cases before the Court of Human Rights at the present time bears that out.
Amendment No. 4 in the name of Deputy Collins is a reasonable one in view of the grave doubts, uncertainty and fear which can exist in persons regarding what might happen to them in the circumstances set out in section 11. I would urge the Minister to give serious reconsideration to it. I am sure he must feel a strong sense of reluctance about a Bill of this kind. As Deputy Haughey has pointed out, we would support the amendment put down by Deputy O'Connell because it expresses the same kind of reservation, although it does not go as far as the amendment put down by Deputy Collins.
The fundamental difficulty we have with regard to legislation of this kind, particularly the sections referred to in the amendment, is the uncertainty regarding political and, to some degree, other laws in the area concerned to which this legislation is directed. Therefore I would urge the Minister to give consideration to the very reasonable amendment put forward by Deputy Collins on behalf of our party.
This time I shall be as simple as I can in my contribution so that it will not go over Deputy Collins's head. He will be able to assimilate what I say——
I hope it has a little more in it.
On the last occasion the Deputy did not like what I said. There were a number of points raised since I last intervened. However, many of them were not relevant to the amendments in that they were arguments for the deletion of the sections covered in Deputy Collins's amendment rather than arguments for giving those sections a temporary life. They were arguments to show that the sections were bad and objectionable, arguments which the Opposition probably believe were good ones but with which I do not agree.
When speaking on the section providing for the person being taken in custody to hear evidence on commission, Deputy Ruairí Brugha said that in effect people will not avail of that right to go in custody because of the situation we are in. When it suits the book of the type of person with whom we are dealing he will know very well what is meant by a guarantee of immunity and will be quite prepared to go if it suits him. We are dealing in this Bill with savage terrorists. The point I am making is that the argument made is one for deleting——
It goes to the root of our argument. If it is a savage terrorist it is one thing——
Perhaps I should say alleged savage terrorist?
The person accused.
Yes, a person accused of savage terrorist offences.
If the people concerned are savage terrorists there is no argument.
We want to make sure that if they are accused of savage terrorist offences and if there is a case against them they will not escape through any kind of legal quibble or anomaly in the sense that the extradition laws are incapable of delivering them at the moment. The arguments go to the principle and the merits of the Bill, not so much to the question of the time limit. Some arguments were specifically on that point.
Deputy O'Malley used the rather odd argument that some years ago he had a Bill which we opposed and sought to have amended to have it made a temporary measure. At the time he warned that this was a bad proposal and he said that he was proved right subsequently when there was a change of Government and I had to seek an extension of the legislation. That seems to be an argument in favour of what I am proposing, not to make the mistake that Deputy O'Malley thinks I made then of having a time limit. I could not see the relevance of that argument this afternoon against what I am proposing. It supports what I am proposing. It is clear that the situation which that Act dealt with has carried on longer than anticipated and it meant coming back to the House. We should learn from what happened and not attempt to put in a time limit that would be unreal and unrealistic. That is the lesson to be learned from that episode.
Progress reported; Committee to sit again.