To resume in the simpler terms I was using before we adjourned, so that I will not go over the head of Deputy Collins——
Criminal Law Jurisdiction Bill, 1975 [Seanad]: Committe Stage (Resumed).
Good man—that is most gentlemanly of the Minister.
I was making the point that I was pleased with Deputy O'Malley's argument in relation to the Prisons Act, which was repeated by Deputy Andrews. He made the argument that when he was piloting that Bill through the House the Opposition insisted on a time limit being put on it, and he pointed out how unwise it was of the then Opposition because the then Opposition finding themselves in Government had to come before the House seeking an extension. I agree entirely with Deputy O'Malley and accept his strictures that a suggested time limit was unwise. I entirely agree with Deputy O'Malley that it is by experience we have to learn. It is a lesson that could be applied to this Bill. It would be unwise to attempt to put a time limit on this Bill.
Deputy Haughey made the point that the Law Enforcement Commission report talked of a limited measure and that implicit in that report was the meaning that the Bill should be of a limited nature. Deputy Haughey interpreted that to mean limited in point of time, among other things. It would be fair to say that the report of the Law Enforcement Commission also spelled out and recommended that there should be extraterritorial jurisdiction and recommended also the taking of evidence on commission in criminal cases. Of course, they had good legal principles on which to base those recommendations, which are the ones now translated into this Bill. But it is straining the wording of the commission's report to suggest that "limited" in the sense in which it was used by the commission could refer to placing a time limit on the operation of the Bill. I think they used "limited" in the context of the emergency situation with which they were asked to deal and for which they were asked to suggest a solution, it being part of the emergency on this island arising out of terrorist activities, chiefly in the North and partly in the South. In that sense, it was a limited solution to deal with that emergency but not limited in time, because the only limitation in regard to time is the length of the emergency. That is what must be the limiting factor in the context of time.
That is why I am not disposed to accept these amendments. I think that the proper limitation in terms of time is the ending of the emergency, when the need for this legislation will have disappeared. This legislation is needed to deal with the emergency we have at present. When that emergency disappears, the need for an amount of legislation will disappear because the Special Court will disappear. That is the ending that would be relevant. That is the time criterion that would be relevant in this context. With respect, I think Deputy Haughey was straining the wording of the report of the Law Enforcement Commission when he suggested that it could be interpreted as lending weight to the arguments of the Opposition for a specific time limit.
Deputy Haughey also criticised the criterion of the end of the Special Court as being the limiting factor on the operation of this legislation. If I did not misunderstand him—he can correct me on this—I understood him to say that I was, in fact, making a double-edged argument. I was saying that, when the Special Court falls to be disestablished, this legislation, in so far as the commission procedure is concerned, will fall also because it cannot be operated without the existence of the Special Court. Of course, it will be an action of the Government that will end the courts operation, because an order disestablishing it will have to be made. But it is circumstances, circumstances pertaining to this island at the particular time which will determine whether that order is to be made. Any Government in power, no matter from which side of the House, would be only too anxious to disestablish that court and to see the day come when it could be disestablished. I am sure it is not suggested that a Government would wish to continue that court in order to keep the provisions of section 11 in being because, if the circumstances are such that the court can be disestablished, then the circumstances will be such that the problem of the fugitive offender will be with us no longer.
I was glad to hear Members of the Opposition accept and praise the provisions in the Bill amending the substantive criminal law. I take the point, and I concede that it would have been perhaps nicer to have had a special Bill for that purpose. This vehicle was available and the amendments were highly desirable. It would have been wrong to put them off until we had an opportunity of having a special Bill. My experience of initiating legislation is to seize the opportunity when it comes. It is in that context that these amendments to the criminal law are made in this Bill. I am gratified that they are accepted and, indeed, welcomed because, when this Bill was first published, many commentators seized on these substantive amendments of the criminal law and criticised them as being repressive and Draconian, whereas they are not. They tidy up the criminal law and make it applicable to the requirements of the age.
I am satisfied that the prudent time limit on this Bill is not some arbitrary date, whether it be six months, a year, 18 months, or even two years. I am satisfied that, having regard to the need for which this Bill has been introduced, the time limit is the ending of that need. That can be established by the ending of the Special Criminal Court. We will all know when the emergency on this island has ended and when the need for this type of legislation has ended. That is when the Bill will end. That is already written into the Bill. That is as it should be. To suggest or prescribe what must be an arbitrary time limit would be wrong. Again, I would refer to the arguments made by Deputy O'Malley to reinforce that.
I am sorry the Minister is not prepared to accept my amendment. There are a few points I may have overlooked when I spoke initially. It is a very dangerous precedent to introduce, shall we say, emergency legislation like this and to use that opportunity to bring about major changes in the substantive law. It is a bad atmosphere in which to discuss this, because it should be part of a comprehensive Law Reform Bill. Major changes in the law should not be discussed with this measure and I cannot accept that.
Changes in the substantive law should be discussed on their merits, debated and introduced irrespective of this measure. I should not like to be associated with any use of emergency legislation like this to bring about such changes. We could readily introduce the necessary legislation within a year or two years as is envisaged. There is nothing at all to prevent the Department of Justice from investigating this, introducing such separate legislation and debating it on its own merits. I am not saying that the changes proposed in this Bill are wrong. But I am saying we should not discuss them in a highly emotive atmosphere like this, when we talk about the North, bombers and terrorists. It is very wrong to do so. There are many dangers in changes in substantive law we should like to debate and argue on their own merits. Because of that, I cannot see the logic in the Minister's statement that this is the time to introduce it. I say it is not the time to introduce it and it should be brought in as a separate Bill for discussion.
If we are not careful, we will get an erosion of our liberties, our rights and so on under the guise of a Bill introduced for an emergency. We had a declaration of emergency in this country by way of a temporary Bill in 1939 or 1940 which is still on the Statute Books 35 or 36 years later. That is very dangerous. There are tremendous powers enshrined in that emergency Bill vis-à-vis the Constitution. The powers granted in that Bill, in that emergency, supersede all other laws. It is a very serious matter. I cannot accept that this Bill will disappear automatically. We will not have the North and its problems with us forever. To my way of thinking, that is the suggestion of the Minister, that this must be permanent because the problem will always be with us. My argument is that it will not. I think we will come around to a situation in which people will see the logic of having an ordered society. I do not think this is the answer to it. We should legislate for that situation. If it continues, there is nothing to prevent us introducing appropriate legislation. We are a democratic institution. We can introduce any legislation at any time and have it debated here. We may have a completely different situation in a year or two years' time. We could debate it then but I am very loath to give Ministers, or the Oireachtas, powers like these. The Minister says that prisoners going into custody in the North will be guaranteed immunity with regard to questioning and interrogation.
It is not even that.
The Minister mentioned this. The SDLP rejected the RUC. That is the first point. They say they are a discredited force. We will be handing over to them certain persons; we will give those persons into the custody of what the SDLP say is a discredited force. I wonder what has happened to that discredited force since the security forces in the North were brought before the European Court which has changed them? Has there been a Bill of Rights in the North? Has everything altered? I do not think so. Of course, there is terrorism and we have done nothing to bring about a proper state in the North acceptable to all. All we are doing is bringing in this repressive legislation. Can the Minister tell me there is a restructured RUC? It is not restructured. Far from it. Yet the Minister says we have absolute guarantees. Guarantees given by whom? Britain gave guarantees for 50 years in the North but those guarantees counted for nothing where civil liberties were concerned. That is the situation that developed. What guarantee has the Minister got if he sends someone into the custody of the security forces in the North? Of course, we have bombers and anarchists and terrorists. We also have people who have not been found guilty of any offence who will be handed into the custody of forces about whom the Minister will give guarantees. I cannot accept that unless the Minister can tell us that this is acceptable to both the majority and the minority in the North and acceptable to the parties representing the minority. If we have that guarantee, then by all means hand them into the custody of the security forces but, until we have that guarantee, I have grave doubts about all this.
This is a very important matter. We are talking about security forces and we are making sure everything will be all right. It is nonsense to say everything is all right. It is not all right. We should be pressing the British Government for a restructured security force to make this acceptable. When we do that we can be logical and give guarantees, but we cannot give guarantees at the moment. We must have some time limit. Everything has a time limit. The amendment asks for one year. At the end of the year the position can be reviewed and we can discuss the matter all over again. If the situation worsens, we can bring in more legislation to deal with it. I cannot accept the argument that this is a good time to make changes in substantive law. Hitler convinced the German people it was a good time to make changes in substantive law and that proved a most dangerous exercise for democracy. I would not like to be assosiated with legislative measures on the basis that we will change them when the opportunity calls for change. I prefer to discuss changes in substantive law on their own merits.
Has the Minister no comments to make on what Deputy O'Connell has said?
I made my arguments. I repeated most of them and there is no point in repeating them a third time.
Has the Minister got guarantees that there is a restructured RUC into whose custody we will be handing accused people, not guilty people? The Minister said guarantees in respect of interrogation and questioning. He used those two words. I wrote them down.
It is provided in this legislation and in the reciprocal British measure that a person going into custody for the purpose of attending the commission is guaranteed immunity from all proceedings whatsoever, civil or criminal, and that includes interrogation and questioning.
Where does it say that?
You cannot have a guarantee about interrogation or questioning. How can you?
The answer is that immunity from all proceedings, civil and criminal, are guaranteed. This was raised in the Seanad at some length. I was asked did this include questioning and interrogation and I said it did because these are part of a criminal proceeding, and immunity, as I understand it, clearly covers them. It is in that context I introduced this.
How can you get a guarantee about questioning and interrogation?
The guarantee is for full immunity and, as far as this Government are concerned, that includes immunity in regard to interrogation and questioning. Should there be any breach of that immunity the reciprocal arrangement comes to an end.
What guarantees have we got? Have we got an independent tribunal to adjudicate as to who is in the right?
If we say that there is a breach of immunity that is sufficient. We do not have to go to any third party. If this Government, or any other Government, feel there has been a breach of immunity, then the Act becomes no longer operable and no more people are sent North and there is no more evidence on commission.
If the UUUC forced the British Government to bring about a return to the old Stormont régime, is the Minister satisfied that full guarantees can be given to accused people?
This guarantee is given not by the UUUC or by Stormont—
Who is it given by?
——but by the British Government. Will the Deputy let me finish? These guarantees are enshrined in reciprocal legislation. If they are not honoured in the spirit and the letter, then the procedures prescribed in this legislation will no longer be worked. What greater guarantee can one have than that?
The Minister is sure the British Government can carry out their guarantee in the North.
If the immunity does not operate, then the Act no longer operates.
The British gave a reciprocal guarantee and the Minister is satisfied with that. Remember, their unwritten Constitution gave guarantees with regard to civil liberties and civil rights throughout the United Kingdom. The British gave these guarantees. Were the British able to enforce those guarantees of civil rights in the North for the past 50 years, civil rights that are included in their unwritten Constitution?
The Deputy misunderstands the position. What we must guarantee here is that a person going to the North will be immune from civil or criminal process so that all that will happen is that he will attend at the commission, listen to the evidence and return here. That is what we wish to achieve but if it is not achieved the arrangement ends. It is in ease of the other jurisdiction that this operation should continue. So one must assume that they will ensure that the immunity they have provided for will be honoured.
In those circumstances what means have we of getting the necessary information from the accused in the North? Must we go through a long process of taking evidence from him or how do we decide whether any statement he makes is correct? Do we send our people up North for the purpose of such an investigation?
If, after being in the North for the purpose of attending at a commission, an accused returns here and makes certain complaints, any such complaints will be assessed here and on our assessment will rest a decision as to whether there was a breach of the immunity.
Has any machinery been set up for investigating such complaints? While it is possible to have to deal with pathological liars, should we not have machinery for investigating complaints by accused persons? Any such process of investigation could be of long duration. In dealing here with those legal aspects I consider myself to be inadequate in that I am not a lawyer——
The Deputy is doing fine.
——but it is reasonable to ask whether there is machinery for investigating the types of complaints we are talking about. Also, I might ask how long any process of investigation would take. Might it not be drawn out over a long period and might there not be as many as 20 accusations to be investigated? In the meantime do we continue to send more accused persons up North or will it be the position that on receipt of the first complaint, we call a halt to the sending of any other accused persons to that jurisdiction? Any investigation of a complaint could take as long as a year. In the meantime would the reciprocal arrangement be discontinued?
There is no reciprocal agreement. Although the Minister says that in the event of a breach of the immunity provision the arrangement breaks down this will still be the law so far as we are concerned.
The reciprocal arrangement is in the British Act. The point about the investigation is that if a complaint is made, it is investigated by the Garda here. I could not describe in precise detail at this stage the mechanics of any such investigation. It would depend on the facts of the situation and I would be prepared to rely on the good sense of the authorities here to enable them to judge whether the complaint was, prima facie, well-founded. If it was considered to be well-founded, I can assure the Deputy that nobody else would be allowed North.
How would the Minister know whether the accusation was well-founded?
I would rely on the Garda.
If a person who is accused is delivered into the custody of the RUC and if, on his return he has complaints to make to the Garda, how are the Garda to investigate these complaints? The accused may not be able to express himself very well. Can the Garda go up North for the purpose of any such investigation and, if so, who do they investigate there? Alternatively, do they write to the chief constable informing him of the complaints they have received to which they might receive a reply informing them that there was no foundation for the accusations? What is involved here is the question of civil rights. The liberty of the individual is of the utmost importance. I uphold the premise that a person is innocent until proved guilty.
In the event of a person not being able to express himself very well, the Garda might take the attitude that he had no complaint to make. It is not good enough for the Minister to say that the Garda will be able to assess the accuracy or otherwise of any complaints. I could not support that sort of situation. I shall not support it. We are enacting laws that will affect people's rights and we should be able to guarantee those rights. Britain was very quick to bring their Doctor Cassidy case before the UN Commission but did not bring any of the Northern Ireland cases of torture before that Commission. I am no Republican but I am very concerned with the question of rights. What we are doing here is taking a lot on face value and this concerns me greatly.
The Garda have not the evidence at their disposal to allow them to assess the veracity or otherwise of complaints. Neither have they the means of investigating such complaints unless we provide the means by which they could go to the North and interrogate those persons there who are accused of ill-treating someone from this part of the country. These may be members of the RUC or of the Army but it is important that the situation be clarified. I should be dubious about relying on the Garda to assess complaints.
I would have complete confidence in our police force to make a proper assessment of a complaint like that. I would have complete confidence in their judgment and discretion and in their experience of investigating such matters. In the event of a complaint being made, obviously what would happen would be that facilities would be sought to investigate it and, if these were not forthcoming, the complaint would have to be regarded as well-founded, and, then the reciprocal arrangement would have to be ended. On the other hand, if the facilities for investigation were afforded and if, after investigation, a report was made and considered by the Government, a decision would be reached as to whether the complaint was well-founded. If it was considered to be well-founded, the reciprocal arrangement would come to an end.
Is that embodied in the Bill?
The Deputy has read the Bill and he should apply his common sense to it.
As a non-lawyer perhaps my reasoning is somewhat irrational but I am entitled to my method of reasoning. The provision to which the Minister has referred should be incorporated in the Bill. I am not casting any aspersions on the Garda although that was what the Minister inferred. All I am saying is that they have not at their disposal the means for investigating those complaints by reason of the fact that they have not access to every aspect of a case of accusation of torture or ill-treatment. Anyone's judgment can be misleading if the necessary information is not at his disposal.
How long would it take for a case to be investigated? Would the investigation take the form of a letter initially to the chief constable who might reply to the effect that the letter was receiving attention? If, some time later, there was no further correspondence from the authorities in the North, might it be the case that the Garda would send a reminder to which might be received the reply that the matter was receiving attention and that they would write again in due course? That sort of situation could continue for a further six months and meanwhile a number of other accused persons could be sent to the North. The Minister means the best and the intention is good but in practice it is not like that. Meanwhile, ten others may go up North and the letter we receive does not stop them. Where is that incorporated in the Bill? Where is that protection and guarantee? Let us stop the hypocrisy and talk straight. We know the way civil servants work—they have to work like that. They acknowledge a letter sent to them.
The situation is that the person concerned may make an accusation against unknown people; he may not have their names and addresses. He is making accusations without being able to substantiate them with regard to identification. Will the Garda take him up North and ask him to pick out a person in an identification parade? I am not a lawyer but I am talking about a matter of common sense. It may happen that the person accused may be ill and what will happen in that case? A person from the South would not know where he was taken and his accusation cannot be substantiated because he does not have the names of the people accused. Will the Garda ask him to provide further information? This is important because they would be obliged to ask that. I am not casting any aspersions on the Garda but I know of their limited functions in a situation like this. They would ask for further details. The situation is that the person is not able to provide more information because he does not know where he was when in the North. In such an instance will the case be dropped?
The Minister has given all that he can give but I do not think it is good enough. We should have further answers and I am going to debate this all night unless we get better answers.
The picture the Deputy has painted presupposes that down here all of us are knaves or fools, that we are going to be codded up to our two eyes in the aftermath of a complaint. It has been implied that when a complaint is made we write a letter, that we get a letter back, that nothing happens for six months but that in the meantime the whole thing goes gaily on and that people are sent North. I have already said to the Deputy in explicit terms that if such a complaint is made it will be investigated and the facilities to make a full investigation will have to be provided. Pending completion of that investigation, no more people will be sent North. Obviously, we have to make sure that the guarantees given were not dishonoured and, if we find that they were dishonoured, then the arrangement as regards people going North stops.
The amount of investigation to be carried out in any particular case so that the complaint can be properly reported on will be for the Garda to decide on the facts alleged in that case. It is rather pointless for us here to be hypothesising all sorts of situations. That is a futile kind of exercise. What we have to do is to be satisfied that the principles are right and I am quite satisfied the principles are right. There is a guarantee of immunity and the sanction to enforce that guarantee is non-operation in the working of the reciprocal arrangement. If we are satisfied the guarantee is not being honoured in the letter and the spirit, we do not work the arrangement any longer. To ensure our satisfaction, we will have to be offered and will ask for the fullest facilities necessary to establish the validity or otherwise of any complaint. If we do not get those facilities, it will be taken as an act of bad faith so as to justify the ending of the arrangement.
I cannot go into details of imaginary cases at this stage but the Deputy can be quite certain that the position of an accused person in the North will be that he will be guaranteed immunity both in the letter and in the spirit. Should there be any breach of that guarantee—I would consider a breach of that guarantee a failure to allow full facilities to investigate an allegation of maltreatment—the Deputy can take it that the reciprocal arrangement will have to be at an end.
A constituent of mine was wrongly imprisoned here—it was a case of mistaken identity—and it took 14 months to get final satisfaction from the Department of Justice, and we did not even get it then although we wrote to the Minister. I know he is a very busy man but 14 months went by in the case I have mentioned. I kept sending reminders —I am sure the Minister remembers the case.
I do not. Perhaps the Deputy would remind me later.
I have reminded the Minister on many occasions. The matter went on and on——
The Deputy has been quite dishonest about this matter of reminding me.
The Minister will have to take my word.
Did the Minister suggest the Deputy was dishonest?
In this matter.
The process of law can be time-consuming and long-drawn out. The Minister has said we cannot bring up hypothetical cases. We must talk about what may happen. Legislating in this House is a very important matter and we must be serious about it. We are obliged to consider every eventuality and in every Bill, no matter how good, we must consider how it may adversely affect other people. To my mind the guarantees are not sufficient. Britain guaranteed freedom of speech and civil rights throughout the United Kingdom. I do not have to say how bad things were in the North. The North is the responsibility of Britain because she has jurisdiction over it. Again, we are accepting her word that everything will be all right and I am not happy in my mind about it.
We do not have to take Britain's word for it. If they do not keep their word, we have the remedy.
I have shown that the remedy we have is ludicrous. I have shown it does not mean a thing. Do we apply it immediately after the first case?
Of course we do.
It is ludicrous because the first person in custody will come back and say the whole thing is a charade. An IRA man who goes up North will come back and make profound allegations about torture, brutality and all that. The Minister has said that when those allegations are made we do not proceed, that the whole business is wiped out——
While the facts are being investigated—quite obviously.
In my simple way I have shown the Minister it is not possible to investigate because we do not have access to the source of the problem and the source of the problem is when the person goes into custody in the North. I am not talking about a hypothetical situation. The Garda have not access to the source of the problem where the so-called torture or brutality took place——
Yes, questioning and interrogation. How could we investigate when we do not have the means? We do not have the means to do that. This is a badly drafted Bill if it provides for that. The Minister can say now that he will do this, that we have means of doing it, but what he has said to me so far is far from satisfactory and he knows it.
I am quite satisfied that the guarantee of immunity given is adequate and can be enforced.
The Minister must have information which is not available to the Oireachtas. He must have come to some arrangement. The Minister must have some arrangement whereby the Garda have access to information in the North. If the Minister stands up in the House and makes a statement saying that he is satisfied, he must back it up. It is not good enough for any Minister to say something like that unless he backs it up. I will not accept it otherwise.
It is unworkable.
I have already indicated the reason I make that statement. The Bill and the reciprocal British measure provide immunity from all proceedings while the person is in custody. That is a guarantee that is given. The sanction to enforce that is that the jurisdiction which complains of the breach of the guarantee would no longer work the reciprocal arrangement. That is the sanction and that is the muscle to ensure there is no breach of the immunity. I am quite satisfied with that muscle. If there is a breach of immunity, that is the end of it.
The Minister mentioned questioning and interrogation. He has no guarantee of that. He should not say that unless he has some information which is not available to the Oireachtas. When the Minister says it includes interrogation and questioning does he honestly believe he has that guarantee? I know I am annoying the Minister.
I am not annoyed. I am glad of the opportunity to clarify the Deputy's mind.
The Minister is not clarifying it for me. I do not represent lawyers. I represent the ordinary people in the street and they would not be happy with that statement. This country is made up of ordinary people and the Minister should not shake his head at them.
I represent my constituents, too.
Is the Minister happy that they are satisfied?
I am happy.
This is a very fundamental point. The Minister used the words "questioning and interrogation". I do not know how any lawyer, garda or anybody else could be satisfied that he has such a guarantee. The Minister has not satisfied me on that point.
It is not in the Bill.
It certainly is not in the Bill.
Deputy Blaney wants to intervene. He has prompted Deputy O'Connell on that point.
It has been bothering me all night how little the Minister has said. He has nothing to say to justify this atrocious legislation he is trying to foist on the House. During this discussion not one Member of his party has shown his face in the House except when I called a House several times. These are the people who are allegedly backing the Minister. I am totally against the Bill in principle. There is no need to go over that now; there will be plenty of opportunity during discussion of the sections to go over it in detail. This Bill brings discrimination to a point we have never known on this side of the Border. It has been commended to the House by the Minister with his tongue in his cheek, talking about how satisfied he is with the undertakings he has got. He knows as well as I do that no matter what any Minister says during the course of the passage of legislation it does not count for anything when it comes to the interpretation of the law as it ultimately goes on the statute book.
This legislation, if it is passed as it now is, will be interpreted only in relation to what is in it and not in regard to what the Minister says he believes he is being told by somebody in Westminster or elsewhere. The Minister is conning the House when he tries to persuade Deputy O'Connell he is satisfied that these undertakings will be kept, that there will be a recognition in spirit in so far as the guarantees of immunity are concerned. The Minister must think we all came down in the last shower if he thinks that is any guarantee in these circumstances where we will not be dealing with our own judiciary or police force but with those outside this State as now defined. This is a discredited police force, one which has shown over the years that it cannot be trusted, and a judiciary composed of political hacks, who were appointed as such. To those we may arrest here on the acusation of the police up there we say: "Go back up to your accusers. Go into custody with your accusers. You are guaranteed immunity, even from questioning and interrogation". The big guarantee we are told, is this. If this Government are not satisfied that such immunity is granted in law and in spirit to any accused foolish enough to return up there to his accusers, then the whole arrangement will cease to operate until the matter is investigated; or if it is found that such immunity has not been granted and observed in the letter and the spirit then we will cease to operate this reciprocal arrangement altogether.
It is all very well for the Minister to talk in those terms. It is all very well for a member of the Minister's party backing him in the House or any other Member to accept the Minister's assurances on this matter. But it is the accused person who must accept the Minister's word in this matter. The accused person has only the Minister's word to accept. Yet he knows well that time without number our courts interpret the law as it is on the statute book regardless of what any Minister promoting that legislation may have said in the House, regardless of how he may have put a slant on it or how he saw it operating. That does not matter at all. It is how the judiciary will interpret this legislation in the courts that will matter.
The Minister knows this better than I do, because he has been a practising member of the legal profession for many years. He knows the record of what was said in the House during the passage of any legislation by the Minister promoting it is of no use on behalf of his client unless it is in conformity with what the legal people in our courts and in other courts determine.
In regard to the accused person who goes back to his accusers and voluntarily hands himself over into their custody, is the Minister really satisfied that this is the quid pro quo, that this matches the situation where we would not have witnesses available to come from the Six Counties into our courts because of their apprehension for their own safety? They would be apprehensive of coming to our courts to help prosecute a person accused in our courts at their behest and on their evidence. While they are apprehensive about that, while we are prepared in this House to make special laws to enable them to give their evidence in the Six Counties territory, we say that that is balanced by the accused being given what is his natural right, something that will come to be accepted as his legal right: that he may be present when the evidence is given. He is guaranteed immunity while in the custody of his accusers.
This is the most daft situation which ever came before any legislature, never mind here. The Minister is aware that these people make accusations. We are prepared to deal with the powers that be in the Six Counties whoever they may be — we know what they are today and what they were yesterday and we do not like them, but we do not know just who or what they will be tomorrow. We say to them: "What you cannot do yourselves, we will do for you. You make the accusations and the requests here and we will pull them in. We will then go to the Six Counties, sit in your courts and listen to the bribed evidence of your own informers"—it is not beyond them to do that as various reports over the last five or six years have shown. "We will do all that for you because you are afraid to come down here lest something might happen to you." If we cannot guarantee their safety coming to our courts to give evidence to prosecute those whom they accuse of acts committed in the Six Counties, why should we take away the natural and legal right of an accused person to be present at his own trial, which is, in effect, what we are doing? We are saying to them: "You are free to go up there. In fact, we advocate that you go there, but first you must be handed over in custody to your accusers, to those who hounded you out of the Six Counties and who want to wring your neck."
We have been told that this Bill has been copperfastened and is to be accepted and believed because the Minister has been assured by some person or persons, through the agency of the British Government, that they — the British Government — will ensure that that immunity is observed in the spirit, in the letter and in the law. It was asked in the last few minutes who are these people who are giving these assurances which the Minister is passing secondhand to this House. None other than the British Government who have taken over part of our country and held it in bondage down the years, who have given guarantee after guarantee and reneged on every guarantee so far as the minority are concerned. These are the people whose word we are now taking. We are attempting to do their dirty work for them and give it a gloss it would never have if they tried to do it themselves in their own courts with trumped up evidence, informers' information and paid witnesses to give evidence to make the charge stick.
Are the people who were put behind bars, the hundreds who suffered in the internment camps, not the prime examples that we as a Government took issue with the British Government and went to the Court of Human Rights? If that is the sort of people we were dealing with then — and there is no reason to believe they are any different today — surely we are prostituting ourselves in doing this and trying to put a facade on it that because the accusers are afraid to cross the Border to make their own accusations stick, to do their own dirty work, we are going to do it for them and give the accused the right of attending his own trial but in the custody of his accusers. How can there be justice there? How can there be any faith in the mind of any accused, no matter how innocent he may be, when he is going back to face people who will give evidence on oath before a member of the courts of the Six Counties; people he has probably run from because he knows them?
This is the situation in which we find ourselves tonight. Either of the proposed amendments is at least some acknowledgment to the outside world that many of us are totally opposed to the whole idea of this legislation. Even our Government who are proposing it on behalf of our people are not satisfied that all is well in the Six Counties. If this Bill is passed as it is, with no strings attached, it is an acknowledgment to the world at large that we in this Parliament acknowledge the justice, the impartiality, the uprightness, the honesty and the fairness of the Establishment in the Six Counties today. We are doing this at a time when we have not yet heard the findings of the court to which we appealed and to which we gave the overwhelming evidence which showed that those who were lifted — many of them innocent with no charges sustainable against them — were tortured and died of their torture. These are the people we are dealing with today but we could be dealing with worse tomorrow because of developments, political or non-political. We could be dealing with a more diehard extremist outlook in the Establishment than anything we have ever known. Yet we are trying to get this Bill into legislation without any time limit, regardless of how the situation may change.
We are being asked to regard the people in the Establishment in the Six Counties as above board, as equal to our judiciary and Garda force. That is why we are trying, even at this late stage, to devise some means whereby, if it must go through by weight of numbers whipped into the lobbies behind the Minister, there is some point in the not-too-distant future when we will either have an opportunity of reviewing it or it will come to an end and if it must be extended, it can be extended only by further legislation and in the light of experience gained in the interim period.
If the Minister cannot guarantee the safety of the witnesses who come to our courts to help prosecute an accused because of accusations made in the Six Counties, no doubt by the Establishment, why should any citizen of this country, North or South, be handed over to the tender mercies of those same people, those same accusers, in the Six Counties merely because they have not the guts to come into our courts to give their evidence standing up straight and without any hoods on their heads?
How are we to be satisfied, as Deputy O'Connell asked, that where an allegation is made after such a visit — if such a visit is ever made to a Six County court to take evidence on commission by an accused — as to the substance or otherwise of an allegation made by such prisoner while in custody in the Six Counties that he has been ill-treated?
The Minister said these guarantees of immunity include questioning and interrogation. Do they include the hooded treatment, the sound treatment, the SI treatment which leave no physical evidence whatsoever? How are we to be satisfied that those who operated such outrages in the past will not do so again to people we hand into their custody for the purpose of appearing at their own trial?
If we were to write 20, 30 or even 40 more pages into this Bill, it would mean nothing. There is not even an attempt to write anything into the Bill that anybody could hang his hat on to challenge this matter. We are to take it by way of assurances given by a Minister — no doubt in good faith so far as the Minister is concerned. How far has he been brainwashed? As a member of the legal profession how can he accept assurances from the people in Britain or their agents in the Six Counties in the circumstances I have outlined? How can you accept these assurances and try to convince the Members of this House that they should accept these assurances from these people or their agents who have proven over the years that they can never be trusted? How can we trust them now?
Why the revised urgency to get this Bill into law? Why has it ever come before us? And since it is before us, can the Minister not listen to the common sense of the Opposition who have spoken here tonight and put a limit on the time for which this legislation is to operate? The Minister should ask himself how he could ever come to the conclusion he has expounded here tonight that assurances from a British Government or their tools in the Six Counties can be relied on. It absolutely amazes me that a legally trained man like the Minister for Justice could swallow that sort of hogwash and use his undoubted ability and eloquence in this House to try to get it across to those uninitiated in the intricacies of the law and the legal system either here or elsewhere that these verbal assurances spoken here and written into the record of this House are worth the paper they are written on, which he knows they are not.
The Minister says categorically that if an accused person comes back after one of his safaris to the courts in the North for evidence to be taken against him, and makes a complaint, until such a complaint has been investigated fully and conclusively — I take it that means to a conclusion whether satisfactory or otherwise — no further accused persons will be sent up North. In other words, no further cases will attempt to be tried in our Special Court here. The Minister is saying that if one such case comes back and says: "I have been brutally treated" in any respect whatsoever, the Minister will set in motion this mystery machinery which to his mind is a satisfactory and full method of investigating the complaint of such an accused, and that until it has done its work to a conclusion there will be no further cases brought before our Special Court at the behest of the authorities in the Six Counties.
Such an assurance is not worth the paper it is written on, because it is not the Minister for Justice who will be operating the law. It will be his Special Court, his special branch, his gardaí and other officers of the law and the judiciary. They will be operating the law as it emerges from this House on to the Statute Book, disregarding what the Minister or other members of the Cabinet may have said as to the manner in which the machinery will be used. Therefore, the Minister should not persist in saying that the fears expressed by various Deputies here are unfounded.
If this is the best the Minister can do by way of assurances, he should drop this Bill altogether. He should phase its withdrawal as he phased its introduction into this House. It would be the best thing that ever happened, because if we do not introduce a time limit or provide for a review in a short time ahead, then we are acknowledging as never before the entity known as Northern Ireland and acknowledging as never before the existence of a judiciary in the Six Counties and regarding it as impartial. Above all, we are giving our stamp of approval to the totally discredited RUC, and we are saying to the British occupation forces, to the special branch, to the SAS and other such kindred spirits who move around the Six Counties and the Twenty-six Counties, as the Minister is, I am sure, aware.
I am not.
Then the Minister should be. These are the people of whom we are saying: "We trust you to the extent that we take your evidence in your own courts on commission to prove the case against those whom you accuse but have not been able to catch". The Minister, in spite of that, is not prepared to put a time limit on the provisions or provide for a review as has been sought in amendment No. 1 put down by Deputy O'Connell or what has been sought in amendment No. 4 in the name of Deputy Gerard Collins which refers to the outrageous sections, Nos. 2, 3, 11, 12, 18, 19 and 20.
Surely the Minister is flying in the face of all the knowledge and evidence over the years when he makes these statements about the effect of the law rather than interpreting in detail what the law will be if this Bill goes through unchanged, and this is what the Minister should and, I hope, will give us in respect of every line of the Bill. This is what this House is entitled to have from the Minister who is promoting this legislation so that we may examine it, and discuss it, and probe it before it goes further. Even though we may be totally opposed to it, that does not take from us the right to have every last comma in every line explained by the Minister, as to its legal effects and not as to how he thinks it will operate, or what arrangements he has made for its operation with his counterpart either in the Six Counties or across the water. That is what we should be talking about rather than what the Minister has been saying here.
If we wanted any further evidence from the Minister as to the hollowness of his own assurances, what better evidence is there than the fact that it has taken almost five years — and there is still no conclusion — to get from the European Court on Human Rights a decision on our accusations against the British about their maltreatment and their malpractices and their abuse of prisoners in their custody and in the custody of the forces in the Six Counties? If it takes that long to get a decision from the court I have mentioned, how much longer would it take to get satisfaction from the people in the Establishment in the Six Counties, to whom the Minister or the British Minister must have recourse if any investigation is to take place consequent upon an accused person who has been in custody in the Six Counties, but came from our courts, making a complaint when he returns? What sort of hearing will his allegation get? What sort of investigation can it possibly be given?
Can the Minister write into this Bill by way of amendment words which will ensure that the assurances he has given will be real so far as such persons are concerned? Unless he can do that, he is doing a disservice to this House and to the name of this State and the standing of its law. Nothing he may say as his best belief in any way equates with what should be written into the Bill, if it can be written in. If it cannot be written in, he should tell that to the House, and tell us the reason why, and he should scrap the Bill which would be the sane and sensible thing to do.
I recognise that the Minister's intentions may be good. When we were in Opposition, and when we were fighting the Forcible Entry Bill, which we fought very vigorously, if I may say so, we got an assurance from the then Minister for Justice that that Bill would not be used against an ordinary homeless person who might squat. The Minister was in Opposition then too and he was very vocal. Let us not kid ourselves.
He knows that assurance was given by the Minister. It is on the records of the House. That Forcible Entry Act is now being used against people who squat. The Minister's statement in the House counts for nothing. He said the Forcible Entry Act would be used against subversives. It is now being used against homeless people who find an empty place and squat.
I was hard on the Minister some time ago but he has not given any satisfactory answers to my questions. He could not substantiate any of his statements. Does he not think my amendment is reasonable? I am suggesting that the Bill should be reviewed in a year. It would expire in one year and we could come back here and have a simple resolution passed by both Houses. There is nothing wrong with that. The Minister said he is against the amendment because in the Bill there are changes in the substantive law. We are prepared to sit extra days if a Law Reform Bill is introduced. The Minister's parliamentary draftsman could draft one. I believe we need this protection that the Act will be reviewed in 12 months' time.
Will the Minister assure us that he will put down an amendment to the Bill building in a safeguard for innocent persons? People are innocent until they are proved guilty. Will the Minister provide a proper means for investigating complaints to satisfy my mind and the mind of the ordinary person? If he could do that, I would be very happy to support him. He will have to give that assurance. Otherwise I will vote against him. I will feel justified in voting against him on this. He has not given any satisfactory explanations. He has just said he is satisfied.
If he says he has and can prove he has secret information and assurances from the British Minister and the British Government that is all right. I do not think he has. He is basing his case solely on the word of somebody up there. There is no safeguard for persons who make accusations of brutality, ill-treatment or torture. If the Minister will bring in an amendment to meet my point, I will support him.
I want to make a point arising out of what the Minister said in reply to Deputy O'Connell. It seems to me that the Minister has forced himself into an absurd position in attempting to reply to the valid points put forward by Deputy O'Connell. The Minister is now taking the position that, if any accused who has gone to the North of Ireland for purposes of being present at the taking of evidence on commission, returns and complains about his treatment, that will immediately bring the Bill to a stop, and that nobody else will go North under these provisions until that complaint has been investigated. If we were seeking any evidence at all that this Bill is totally unworkable, that statement by the Minister proves that it certainly would not operate, or that it would operate only for a very short time indeed.
In fairness to the Minister, I do not think that is what would happen, that once one person made a complaint that the guarantees of immunity had not been adhered to the Bill would come to a complete stop. I do not think the Bill can come to a complete stop. It is fallacious for the Minister to make that suggestion to us. He has argued very trenchantly against Deputy O'Connell on the basis that, at the first element of dissatisfaction that arose here as to this question of the guarantees of immunity, the Bill would cease to operate. However, statute law does not work that way. Even if the Minister were totally dissatisfied about the way our witnesses were being treated when they travelled to the North, this Bill would still be on the Statute Book and there would be an obligation on the authorities here to operate it.
We have a very conscientious Attorney General at the moment who, because he thought his duty indicated that he should do so, and because he felt the statutory law obliged him to do so undertook a prosecution against some unfortunate family planning association. The fact that he was laughed out of court did not alter the merits of the case. I maintain that the Minister cannot give that reply validly to Deputy O'Connell because, no matter what happens in the course of the operation of the Bill, the Bill still remains law.
If, under sections 2 and 3, someone commits an offence there will be an obligation on the Minister's Department, the Attorney General and the whole legal process here to have a prosecution instituted in those circumstances even though they may be totally dissatisfied about the situation in regard to guarantees of immunity.
At first sight one would be inclined to take the following words in section 11 at their face value: "while he is in custody in Northern Ireland for the purpose of the taking of the evidence, he will be immune from detention and any kind of suit or legal process, in respect of any cause or matter, civil or criminal, arising before his arrival in Northern Ireland for the purpose aforesaid". If one reads the section more carefully one will see that all that happens is that where a court makes an order under this section it shall inform the accused that while he is in custody in Northern Ireland he will be immune from detention. There is no guarantee in the Bill of anything. The court here, in making an order to enable an accused to go north to hear evidence, will inform him that this is the position.
The Minister should tell us where the guarantee about which we have heard so much is; where is the guarantee of immunity? We should be clear about the fact that it is only immunity from detention and any kind of suit or legal process; it is no guarantee of immunity from questioning. That is not in this section although the Minister reads it into it. The Minister has not satisfied anybody in the House that he is justified in reading immunity from questioning into the wording of this section. Section 11 only provides machinery for the taking of evidence and provides an obligation on the court here to inform the accused that he shall be immune. It is a completely different thing to inform an accused that he shall be immune and guaranteeing him immunity.
Unless there is something in the British Bill from which this guarantee of immunity can be derived — if there is the Minister should tell the House about it — how can our legislation guarantee behaviour by agencies and forces in the North of Ireland? It cannot and, in fairness to the Bill, it does not purport to. The Bill just states that the court shall tell the accused something. As Deputy O'Connell has pointed out there must be some follow up to that; there must be some machinery or agency whereby that guarantee is operative in the North of Ireland. I do not know if it is in the British Bill, and if it is there I should like to hear about it.
If there is no such immunity anywhere I do not see how any accused person can be expected to go to the North to be present at the taking of this evidence. If a person cannot go north to be present at the taking of the evidence on commission with absolute immunity then the Bill breaks down and becomes completely unacceptable.
Would the Minister not have thought it advisable to make available to every Member a copy of the British Bill so that we could be assured about certain points?
That could be arranged.
It is a pity it was not arranged at the beginning. We have been talking about a British Bill having things built into it and saying that we are sure of this reciprocity but we have not a copy of that Bill.
We are at a very early point of the Committee Stage, but we will get copies of the British Bill as soon as possible.
The British Bill does not have it, anyway.
I should like to refer to the equivalent British Bill, the Criminal Jurisdiction Act, 1975, and to paragraph 4 (2) of Schedule 4 which deals with the attendance of an accused. It states that so long as an accused is in Northern Ireland pursuant to this Part of the Schedule he shall be kept in custody, and that while being kept in custody he shall be immune from arrest or detention, and from any other proceeding whatsoever, related to any criminal or civil matter which arose prior to his arrival in Northern Ireland in custody.
It does not have it.
That is the immunity given by the reciprocating measure. The guarantee of that immunity is the Executive action by this State in the event of there being a breach of the immunity. That is what I have been arguing all along, but Deputies on the other side are not prepared to accept this or cannot see it. Immunity is given and the question then arises of the guaranteeing of that immunity. The immunity is given in black and white in this.
In respect of interrogation and questioning?
May I finish? The immunity is given in the British Bill and I have read out the text granting that immunity. What now arises is the guaranteeing of that immunity to ensure that the immunity given by the British Parliament is honoured in the spirit and in the letter. The guarantee is action by this State should it be dishonoured, the action being an ending to the reciprocal arrangements for the taking of evidence outside the jurisdiction. That is the guarantee. In other words, the arrangement whereby people are sent to have evidence taken on commission comes to an end; that is the guarantee.
The Minister is very naive to swallow that.
Does that require a change in the Act?
The Minister said that stops people going north, but that does not bring the Bill to an end; it only means that an accused is denied his right to be present at the hearing of the evidence on commission.
The Deputy is being unreal. It is quite clear that should that situation arise — I think it is an extreme situation — prosecutions for extra-territorial offences will no longer be mounted because they cannot be continued if they involve evidence on commission. That is the long and the short of it.
Would there not be a statutory obligation on the Attorney General to institute them under the Bill?
There would not because there would be an Executive arrangement whereby the book of evidence on which a prosecution will be founded has to be received and then passed to the law officers. The Executive can intervene at that stage.
Having read out what he did is the Minister now going back on his statement that questioning and interrogation are not included?
No. I am not.
Therefore, my hearing is bad. Did the Minister read that out?
I will read it again. The British Bill states that while being kept in custody a person shall be immune from arrest or detention and from any other proceeding whatsoever related to any criminal or civil matter. The words, "any other proceeding whatsoever", include interrogation.
They do not. The Minister is a lawyer.
That is what I am telling the Deputy.
The Minister tried to put a full stop after "proceeding" but there is not a full stop. Would the Minister read that again because it is important?
It states that while duly kept in custody a person shall be immune from arrest or detention, and from any other proceeding whatsoever, related to any criminal or civil matter which arose prior to his arrival in Northern Ireland in custody.
And the Minister is assuring the House that that prevents a man from being tortured, ill-treated?
Of course it does. That is the immunity that is granted, and it is full and total.
Is he immune from interrogation or brutality?
Is he immune from ill-treatment?
Is the Minister saying that is built into what he has quoted?
I will ask another lawyer to stand up and guarantee that.
What the Minister read referred to proceedings relating to something or other, and I should like to know if the Minister is telling us that his interpretation of that, from a legal standpoint, is that it includes questioning, interrogation, hooded treatment and sensory deprivation, which is one of the new ones? Are all these things included and is total immunity guaranteed? This refers to proceedings. Surely the proceedings talked about there are legal proceedings, criminal or civil, that might be taken?
The immunity given is total, and a person cannot be interfered with when in Northern Ireland. Otherwise there will be a breach of the immunity given and of the guarantee.
The Minister charged Deputy O'Connell with raising a hypothetical situation. The questions raised by Deputy O'Connell were very practical. The Minister is the one who is coming back with hypothetical situations. He keeps relying on the broad statement that the immunity is total. I have taken a note of the British Act which is almost the same as this Bill, with slight changes in the order of words. It does not give the total immunity the Minister said it does.
Let us be frank and face that. It is immunity from detention, from any suit or legal process, in respect of any cause or matter, civil or criminal, arising before the matter reaches Northern Ireland. It is immunity from proceedings or detention. There is no suggestion, and I do not see how the Minister can suggest in this House because he is cornered, that this gives immunity against ill-treatment or against interrogation. He must know that people have been interrogated before proceedings were instituted, or without any proceedings. Does it, for instance, give immunity of a kind that will forbid him being left in solitary confinement while he is in custody?
It is ridiculous for the Minister to say these immunities are there. They are not. I will come back to what Deputy O'Connell has said. He asked a practical question. The Minister had said that where such a complaint arises he would have the matter investigated by the Garda. Deputy O'Connell asked how. That is no hypothesis. What power of investigation have the Garda or can they have or will they have to investigate a complaint and form a conclusion that would satisfy the Minister?
The question posed by Deputy O'Connell is no hypothesis, but the Minister has left a very hypothetical situation in the air when he comes back to say that he will take a decision as to the continued operability of the Act on the basis of satisfactory investigation by the Garda in a jurisdiction in which they have no control. What we are trying to do here in the two amendments is to provide that the Act be operative for a period of 12 months so that we who have this responsibility can come back after 12 months and hear the Minister say it has worked or it has not worked because these imperfections were there. Then we will take the responsibility to extend or to finish the legislation one way or the other.
It is ridiculous for the Minister to say that he will decide on the basis of Garda inquiries, when they have not got the information directly available to them, whether the Act remains operable. That is not discharging the Minister's function which we are trying to help him to do through these two amendments, both of which are quite clear. We do not like the Bill, but we are asking that we have a look at it after one year and then let us decide. In the course of the entire evening the Minister has not argued against the amendments or given one cogent reason why they should not be accepted. There is the suggestion about the Special Criminal Court, that the Act would last only as long as the Special Criminal Court. That, of course, is nonsense. That court was in existence long before the Bill came into being and it may be in existence for the purposes of dealing with what is happening in this jurisdiction long after this kind of need is there.
The Constitution provides for it.
Why do not we write into this Bill what is needed in its own right and not relate it to another provision in another Act? That is not good law, and the Minister must recognise it and at least give us a chance to discharge our obligations in a year.
What Deputy O'Kennedy is saying is that certain consequences might flow from this Bill because the Garda cannot or would not have power to investigate a particular complaint, that there is no mechanism written into the Bill for such investigation. There is not, because the reality of the situation would be that a complaint is made, facilities to investigate it would be requested and, if they are not forthcoming, the complaint stands and that ends the reciprocal arrangements. That is the guarantee. If these facilities are forthcoming, they will have to be forthcoming to the extent requested, required or needed by the Garda to carry out the investigation to their satisfaction. I cannot see how putting a time limit of a year on the Bill would improve it if there are all these fears of terrible things happening. If they are to happen they could happen within a year.
They have happened.
What if the facilities are delayed?
I have already indicated that if facilities are delayed the Act would not be operated until such time as the complaint has been cleared up to our satisfaction.
Is the Minister saying that when this Act comes into force it can be stopped?
Will the Deputy hear me out? Does he want to hear me out? If a complaint is made and the facilities are not given or are only partly given, and the investigation drags on, then, should any cases have arisen in the meantime, there will not be the reciprocal arrangements in relation to those until such time as the matter under investigation has been cleared up one way or the other. A suggestion was made that if the Bill becomes law it will not be possible to postpone it. I am saying it will, because starting proceedings under this Bill involves Executive action on receipt of the book of evidence from the North by the authorities in the South and then its presentation to the prosecution authorities. The Executive will have power to intervene to ensure that no other cases come for prosecution until such time as any outstanding complaint comes to be cleared.
What does the Minister mean by saying facilities will be made available? A complaint by an accused to the Garda of ill-treatment in the North while he was in custody there has been made. The Garda ask for facilities. Could the Minister elaborate on his statement on that?
The Garda will have to be afforded the facilities they need to enable them to investigate a complaint, whether by taking statements or by questioning people. I cannot envisage what the facilities might be until we would know the circumstances of a particular complaint, but the Garda will have to be afforded the facilities they would require to deal with a particular complaint.
If an accused person said he was ill-treated or tortured and he makes a statement to the Garda, that would be the normal procedure. The Minister envisages that he would make a statement to the Garda, that would be the normal procedure, and the Garda would write to the North. Would the Minister say then that facilities would be afforded if the Northern authorities institute investigations in the North? If they say: "We are investigating the matter" would that constitute facilities being provided; would that negative the Act? If they said: "Our investigations are commencing" and the Minister does not hear further for two months would he consider that would be sufficient to warrant breaking the whole agreement, the reciprocal arrangement with the North?
It would not necessarily warrant the ending of the arrangement. What it would do is postpone action under the reciprocal arrangement, pending the completion of the investigation. It would be a matter for the Garda as to the mechanics and how they would carry out their investigations, and I would leave that to their professional judgment.
Would the Minister be satisfied if the Northern authorities then wrote back and said: "We are satisfied that the allegations are without foundation"? If, the following day, a letter arrives from the Chief Constable in the North saying: "I am fully satisfied that the allegations are without foundation", would the Minister be satisfied?
That would be a matter on which I would take Garda advice. They would have to have some indication of the depth and extent of the investigations made.
The Garda have no way of knowing. The authorities in the North could just as readily sit up all night investigating these, 24 hours of the day, and write back the next day saying: "Our investigations are complete; we are satisfied". How would the Garda know that that investigation was an intensive one and justified a letter from the Chief Constable in the North stating that? Let us be honest: how would the Garda know whether or not that letter meant anything?
What we are now debating is the quality, efficiency and sufficiency of the advice the Garda will give to me in a particular case. That is something I do not think one can debate in vacuo, so to speak. It is something one can assess only in a particular case when the whole thing lands on the desk of the person responsible. I cannot say that, in a particular case, the Garda advice would or would not be taken. The whole thing would have to be read in the circumstances of that case and considered as a whole. For me to say — in the example given by the Deputy — that the Garda would or would not be satisfied is not appropriate. I do not know what reaction the Garda would have to any information they might receive. It would be a matter for them, or whoever would be the competent authority, to come to the Minister with a report and their views on it. Then a political decision would be made.
It seems to me the Minister is either being very naïve about this or he is saying: "There will be no such complaints made so the matter does not arise." The Minister is naïve to think that the Garda could assess a letter from a Chief Constable stating that. They could not assess that no matter how well trained they were. One would need to be a Garda Commissioner to make an assessment of a letter saying: "We are satisfied there is no substance in the allegations made by such and such a person". Or the Minister seems to be assured in his mind that everything is so hunky-dorey in the North, that the security forces there are above reproach; that everything brought before the European Commission on Human Rights by this Government was wrong; we must make "reparation"—if I may use that word because it is a very important one. Therefore, we were wrong in our accusations that it was an ill-considered move to make; everything is right in the North; the SDLP are wrong; they are misguided; the security forces are normal, it is a properly structured force acceptable to everyone; these accusations made over the years are wrong, there will be no question whatsoever about ill treatment, brutality, torture, interrogation in depth, call it what you like. That is what the Minister is saying.
I should like to take the Minister upon a point he made just before the adjournment. I had said that the reason why — if the Government were insisting on this Bill — the Opposition were seeking a time limit on specific aspects of the Bill specified in the sections referred to in amendment No. 4 put forward by Deputy G. Collins was because I doubted if, in the current situation, individuals would voluntarily submit themselves to the custody of Northern security authorities. In answering that the Minister said, I think, that the sort of people who would not want to surrender to the custody of the Northern authorities would be the sort of people who were guilty of very grave offences. I think the Minister used the word "savages". I think Deputy Haughey agreed with him in regard to the particular type of offence.
Rather than convicted.
I intended putting a question to the Minister regarding the Schedule to the Bill before we took this amendment because it is a very broad Schedule. But, in the course of the past 15 minutes, the Minister has said that the procedure under this Bill will be that the Executive will decide on prosecutions sought, I presume, by the Northern authorities. The words he used were "the Executive can intervene".
Does the Minister mean that the Government here will decide, on this very broad Schedule, whether a prosecution sought by the Northern judicial authorities will be based on some criterion? If so, I think we should know what.
I raised the question of Excutive intervention in the context of the reciprocal arrangement coming to a standstill in the course of investigation of a complaint made by a person who had gone North in custody. The Deputy can take it there would be no intervention in regard to what prosecutions would or would not be mounted in the normal operation of the arrangements. It would be only in the usual instance of there being a complaint investigated with regard to infringement of the immunity that the Executive would intervene to call the arrangement to a halt and ensure that no books of evidence coming down from the North were acted on pending that investigation. In the normal way, the books of evidence would be dealt with by the law officer, who would assess them in the same way as the book of evidence coming to him in the ordinary way. He would assess that book of evidence, draw up the indictment on foot of it and give directions for prosecutions.
I thank the Minister for clarifying that point. That confirms that what I said earlier is correct—that the decision to prosecute, or to have a prosecution taken here, will be one made outside the legal jurisdiction of this State.
Of course, a political decision.
No, it will not, Deputy. What will happen is that there will be a person in this jurisdiction against whom allegations are being made; he will be alleged to have committed an offence in the other jurisdiction. In the normal way the book of evidence will be prepared — it will have to be prepared in the other jurisdiction because that is where the offence was alleged to have been committed and that is where the evidence will be available. That book of evidence will be submitted to the police authorities here who, in turn will submit it to the law officer concerned, who will then assess it. The law officer here will then decide whether or not a prosecution lies. If a prosecution lies, he will also decide what are the charges and he will frame the indictment in the normal way as if the matter were initiated here.
I am glad the Minister has cleared up that point. That leaves it with the Attorney General to take a decision on the basis of the book of evidence. Is that correct?
Yes, the law officer.
The Director of Public Prosecutions?
It is the Attorney General in this Bill. Prosecutions cannot be proceeded with except with his consent.
So the Attorney General will be able to take a decision independent of the Northern authorities?
I am glad the Minister has cleared up that point. With regard to the question of confidence on the part of an individual in the Northern Ireland security forces and his willingness to surrender himself to them, I believe such confidence cannot be generated by anything that may be said by the Minister, by the Government or by those in Northern Ireland. It is a question of public belief in the stability or otherwise of the existing situation there. To generate confidence and enable this Bill to function would require a major political change and that change has not yet taken place. There are good reasons why individuals might lack confidence in the impartiality of the authorities in Northern Ireland. There is enough evidence, for example, in the failure of British security there to uphold the Executive in the past 18 months. There is, too, the case in which the British authorities in regard to an individual sought by them alleged that individual to have been in Britain on a certain date while the Irish security authorities said that on that date they were interviewing the particular person here. I submit there are good reasons for a lack of confidence in the security authorities. That is one reason why the Opposition are seeking a time limit on the Bill.
I agree there are certain persons who do not have confidence in the security forces in Northern Ireland. That is a fact. On the other hand there have been appeals from a wide spectrum of political, clerical and lay opinion both here and in Northern Ireland for support for the security forces in Northern Ireland, the latest being that made by the Leader of the Opposition in Brussels. We have to have a balanced approach to this.
May I ask the Minister to quote the source? Was that a British Bill?
Is the wording identical?
It may not be exactly word for word, but the meaning is the same. I am satisfied about that.
Would the Minister confirm that so far as the Bill is concerned it offers no protection whatsoever? Our laws offer no protection whatsoever to a person travelling to Northern Ireland in the particular circumstances.
The Minister admits that.
The Bill protects someone coming down here from the North.
But a person going from here to the North has to rely on their Act for the immunity the Minister is guaranteeing. It is a very interesting situation. Our Minister for Justice is giving us guarantees here on the basis of something in a British Act of Parliament. That is a very interesting situation. Apart from that, the Minister in his reply satisfied Deputy Brugha, but he did not satisfy me, about this question of the Act coming to a stop. The Minister suggested a very nice, open, honourable process would take place. The book of evidence would arrive from the North and the Attorney General or the Director of Public Prosecutions would study it and decide whether or not a prosecution should take place. That is nonsense. That is misleading the House. What would happen would be the book of evidence would be concocted by people about whom we would know nothing and it would be sent down here and if it contained a prima facie case, concocted or otherwise, the Director of Public Prosecutions or the Attorney General would have no option but to prosecute.
And that is where our court would intervene. There would be no point in the authorities in the North concocting the book of evidence when it would have to come before our courts for scrutiny and with a full trial on it. Deputy Haughey is clutching at straws in making an argument like that.
It is the Minister who is clutching at straws.
Of course this Government cannot grant immunity—I want to make a distinction here between granting and guaranteeing where our writ does not run. Likewise, the British Government cannot grant immunity where its writ does not run. What we do is guarantee to our subjects the immunity granted by the British Government. Likewise, we guarantee immunity here to persons coming south. They are interlinked. If one falls the other also falls.
The immunities written into this Bill and the UK Bill do not cover interrogation and questioning and for the Minister to suggest he has got some informal guarantee which extends what is in the Bill to cover these is not in accordance with reality.
I have just read again the section in our Bill:
while he is in custody in Northern Ireland for the purpose of the taking of the evidence, he will be immune from detention, and any kind of suit or legal process,
If the Minister says that includes questioning and interrogation then even my very elementary knowledge of the law is gone haywire.
The Bill gives immunity from any legal process. A fortiori there is immunity from any illegal process if questioning and interrogation take place as part of the legal process.
The Minister is not talking to a lawyer. I am not a lawyer. Let us skip the jargon and talk ordinary English.
I thought I was speaking English.
Has Deputy Crowley joined Deputy Blaney?
Let us keep to the Bill or we will all start mixing it and, if we do that, we will make no progress.
I am sorry this is a sensitive matter for Deputy Blaney.
The Minister was not very humorous with Deputy O'Connell this evening.
The House does not seem to want to hear the Minister.
On the amendment now. Come on.
The Minister invites trouble.
May I apologise to Deputy Blaney? I did not realise it was such a sensitive issue. May I say to Deputy O'Connell the position is that the immunity is from arrest or detention or any other procedure relating to any criminal or civil matter?
Would custody mean detention?
Of course, it must.
But we are told that although in custody a person will be immune from detention.
Some time ago Deputy O'Connell asked me not to use legal jargon, but I shall have to do so now to explain the difference. If a person is kept in custody, he is not free; he is under the control of police.
But he is immune from detention.
He is immune from arrest or detention. In that context "detention" means imprisonment or can mean detention of a juvenile in an institution for juveniles. When we say that a person is immune from arrest or detention we mean that he cannot be detained subject to any legal process.
But he is still in custody, or will he be booked into an hotel in the North?
Obviously not. Deputy O'Connell is being farcical about all this. A person goes into the custody of the police in the North, but there is a legal difference between that and being in detention in the legal sense.
But the Minister said that detention meant custody. When the Minister says that a person is immune from detention does that mean that he is immune from interrogation and questioning?
I do not know how I can explain this to the Deputy. The position is that a person is given immunity when he goes into the other jurisdiction, that is, immunity from any legal process.
Are investigations legal? Is torture legal?
But we are told that a person will be immune from legal process.
Everyone is immune from illegal process.
The Minister must be allowed to give his explanation: otherwise, there is no point in questions being put to him.
He is confusing the whole issue.
I am not confusing anything. The position is clear. By definition there is no right to do anything illegal. Consequently it is not necessary to give immunity against something which there is no right to do. The distinction here is that the British authorities or the authorities here could have the right to take proceedings, civil or criminal, against a person coming into their custody, but they are prohibited from availing themselves of that right by reason of the guarantees of immunity, and that is what must be provided for. There is never a right to do anything illegal or extra-legal in respect of a person coming into the jurisdiction, so one does not have to provide against something that is illegal.
So there is no need for a guarantee against questioning or interrogation?
I am not saying that. Deputy O'Connell may interpret me in any way he wishes but I shall not accept his interpretation.
Therefore, there is no need for guarantees against torture, brutality or ill-treatment since all of these things are illegal.
There is no need for immunity against them since such deeds are already illegal. We are constantly mixing up immunity and the guaranteeing of immunity. The law provides immunity against something that is illegal. The question that arises is the guaranteeing of that immunity. Let not the Deputy mix up the two concepts. The guarantee of immunity against legal or illegal process is contained in the action that each Government can take against the other.
Let me put it this way: a person is immune from torture, brutality or ill-treatment, and all we are doing is guaranteeing that immunity?
That is so.
Can the Minister say where in the Bill is that guarantee provided for? Have we anything other than the word of the Minister in Britain? We must remember that the record to date of those authorities from whom we are taking this written assurance leaves much to be desired. Would the Minister agree on that?
The guarantee of the immunity is contained in the fact that if the immunity is not honoured the arrangement will not be operated. That is a mutual guarantee. If we abuse the immunity we cannot expect co-operation from the other side, and vice versa. That is the guarantee.
Surely this whole thing is one-sided. Is it not discrimination at its worst? Regardless of whether we limit the provision or provide for its review after a year, in practice it will operate only in so far as the minority in the Six Counties are concerned and may be used, falsely or otherwise, by the authorities in that part of the country. There is no question of reciprocity or of the agreement having any meaning in so far as this legislation is concerned. The whole thing is an empty, useless operation, merely a bit of window dressing to give the impression that the other side are giving us something. They are giving us nothing. We are the ones who are giving all and are exposing our citizens to the dangers inherent in sending them up North in order to give them the opportunity of being present at their own trials when evidence is being taken on commission. We are doing this because the accusers are afraid to cross the Border to give evidence here. Why should we in practice wipe out the absolute right of any person being given every facility to defend himself at his own trial? Telling them that they may be present at the hearing of evidence on commission is not fulfilling that right. A person who has suffered for many years at the hands of the establishment in the Six Counties or whose family have so suffered, may decide finally to leave and come across the Border, but if he is accused by the authorities there the Minister tells us on the one hand that the process that would go into operation would be something to be determined by our courts while on the other hand he tells us distinctly that the process would be at Executive level. Which is it to be? Will the matter be one for the courts or will it be one for the Executive here? Obviously, it cannot be both.
To make the distinction for the Deputy—the legal decision as to whether a prosecution will be taken is for the law officers of the State. I indicated that there might be Executive intervention in the circumstances where there was a complaint of breach of immunity in the North, where there was bad faith in the operation of the legislation. In that situation clearly political considerations would come into being. We would point out to the other authority that this was a reciprocal measure, that until we were satisfied there were clean hands on both sides, the legislation could not be operated down here. In that situation it would be a political intervention, but in the absence of bad faith in the operation of the legislation in the North it would be a routine matter between the law officers.
I should like to raise the matter of a person who might go to the Six Counties to hear evidence against him. To whom does such a person make a complaint on his return to custody on this side of the Border? Does he complain to his solicitor, to the warder in the prison in which he is held in custody, to the courts when and if he is brought before them, to the Minister or to the Garda?
He could make a complaint to any or all of the persons mentioned by the Deputy.
Therefore, in that event the ultimate decision as to whether the complaint is worthy of investigation will be a political decision?
It is not whether it is worthy of investigation. Every complaint will have to be investigated, and it will be a matter on which the Garda will advise the Minister of the day.
I should like the Minister to clarify his interpretation of the other situation, namely, whose responsibility will it be to take action on request from the authorities in the Six Counties to arrest and to take into custody a person accused of some offence named in the Schedule to this Bill?
That would be a matter for the Garda.
Let us consider the situation where a case is brought as a result of a request from the authorities in the Six Counties and where an accused person is brought before us here and where, in accordance with the rights given in this Bill—which are much less than his natural and legal rights should be—he goes to the Six Counties to hear the evidence given on commission against him. If while in custody he is abused in some way or thinks he is, or if he alleges he was so abused even though he was not, he makes a complaint accordingly, that is pursued to its conclusion by the Minister and his Department and until they are satisfied that it has been concluded in a satisfactory manner no other case will be taken in our courts on foot of a request from the Six Counties. The Minister has said in regard to complaints that ultimately it will be the Government or the Minister who will make a determination as to whether investigations have been properly concluded but, on the other hand, he has told the House that no other cases will be taken while the investigation is proceeding. However, on the third stage we find it will not be within the competence of the Government to decide that no other case will be taken while the first case is being investigated.
I have said that it will. Clearly there is a political element involved at that stage. If there is a reciprocal arrangement and there is bad faith being shown by the other side in the operation of it the Government here would indicate to the Government in the other jurisdiction that we were suspending the operation of the legislation, that requests for arrests or prosecution could not be dealt with until the matter was cleared up. It is as simple as that.
Let us suppose that there were 20 complaints in the course of a week or so and that 20 people were picked up. If the first person comes back and makes a complaint nothing is done about the other 19 people until the complaint is pursued to a conclusion that is satisfactory to our Executive. If it takes one year to do that, will the other 19 people be held in custody or will they be let out?
Obviously they could be on bail because of our laws regarding bail. If they were arrested before that stage is reached, they would be on bail.
Would they be on bail until the Executive are satisfied that a proper investigation of the first complaint has been concluded?
Yes, but it would have to be done speedily.
It could take ten years.
That is ridiculous. We must be reasonable about this matter.
The Minister indicated that this debate was nonsense because some speakers asked questions that he considered foolish although they appeared quite sensible to me. If a person is in custody in the Six Counties during a hearing of evidence against him on commission, I take it from what the Minister has said that such a person is guaranteed immunity from detention and/or arrest. What difference does it make when a person is in custody whether he is guaranteed immunity from detention and/or arrest, because, for all practical purposes, he is in detention? What is the difference there? What is the purpose of the guarantee and who will it satisfy? Secondly, how can the Minister in his capacity as Minister for Justice in an Irish Government suggest to this House in furtherance of his arguments to put through this proposed legislation that we are doing it on a reciprocal basis with what has happened in the British Parliament when in practice, as distinct from theory, this law is only intended and will only operate where the minority in the Six Counties, those of republican outlook, are concerned? Why should we set up this paraphernalia in order to deal in a discriminatory fashion with those who have been so long discriminated against on the other side of the Border? That is what we are doing.
On the other hand, can the Minister visualise a situation where an alleged loyalist terrorist is being hounded so diligently by the forces of the Crown in the Six Counties that he must jump across the Border rather than be caught? If such a situation should happen by mistake, as when the British Army frequently make mistakes about the Border and cross into our side, if an extreme loyalist terrorist with a price on his head in the Six Counties is running from the RUC and the UDR—of which he may be a member in good standing—can the Minister see such a person brought before the court as a result of a request from the Establishment in the Six Counties? Of course, such a person would jump at the chance of going before his own courts, these impartial courts presided over by the impartial judges and before which will come the impartial RUC, the Special Branch, the SAS and the British Army to give evidence against him. He will be quite happy going back to the North with the guarantee of his immunity, as mentioned by the Minister, not only from arrest and detention but from any danger of being beaten up, hooded or any such other atrocities committed against so many of the minority in the past. That is in the extreme, exceptional case where, by mistake, he crosses the Border rather than be chased by them, if they were chasing him. We know this and the Minister knows it. The facts are there for anybody to see that the forces of law and order in the Six Counties stand completely discredited. The Minister knows that in relation to the percentage of the population in the majority and the minority in the Six Counties when one takes the number of those interrogated into account one finds that the percentage is doubled in the case of the minority as against the majority. If we look at the 1,500 dead we find a similar situation whereby the percentage of Loyalists killed is only half that of the minority in the Six Counties.
However, if one is not satisfied with that one has only to look at the people prosecuted for serious offences in the Six Counties and look at the table of sentences handed out to people convicted over the last four to five years. What do we find? We find, again, that the number brought before the courts on serious charges in the Six Counties bears no relationship to the percentage of the bodies to which they belong, the majority or the minority. Their numbers are in converse ratio again to the actual numbers on the ground. If further evidence were needed as to the lack of faith in just treatment for all in the Establishment in the Six Counties we have only to look a little further and examine the records where there have been convictions. What do we find? We find that the sentences delivered are approximately half if you belong to the majority in the Six Counties as against the minority. How then can the Minister, or anybody else, come to any conclusion other than that the Establishment in the Six Counties are no better than they ever were and that there is no possibility of fair play or equal justice for all in that quisling state?
The Minister should be taking that into consideration at this late stage instead of involving himself unnecessarily in guarantees in relation to verbal assurances which he may have in relation to something over which he has no jurisdiction. The Minister would be much better employed if he added up the things I am talking about, went back to the Government and asked them to look again at this Bill. How can one expect to get fair play for all from the SAS, the British Army, the UDR and the RUC in the Six Counties when one knows their record in the past in relation to the minority? The Minister, in relation to this Bill, is giving in to the British Government and the Establishment in the Six Counties.
I am amazed at the Minister.
It is to deal with subversives. It is to deal with those people who have committed the most serious offences against innocent people.
The Minister should cop on more quickly than many others, not only because of the obligation on him to be aware of and keep in touch with various agencies working in the Six Counties, about what is actually happening. Surely he has obtained information from all those sources? Unless they are deliberately misleading him he must be aware of the situation as it now is and as it has been in the past. I remember the attitude of the Minister for Justice on a particular night in this House in relation to another Bill before he was stampeded with others into accepting it. I refer to the Bill which was introduced by the Fianna Fáil Government. The Minister was then a strong upholder of the views I am putting forward today.
I am opposed to the Deputy's point of view.
It was the Minister's point of view on that occasion. We know what happened that night after the bombing took place in this city. The Minister has brought in this Bill to satisfy the British Government and the Establishment in the North.
We want to deal with those who use the bomb, the bullet and the gun.
The Minister will not do so with this Bill. He will just satisfy the British Government. How will he deal with the SAS? Has the Minister found any evidence as to who planted the bombs in Dublin?
No evidence whatsoever.
Has the Minister found any concrete evidence as to who planted those bombs?
No evidence whatsoever.
I hope the Minister will not try to suggest that it was the IRA who planted those bombs.
There is no evidence as to who was responsible.
No, but the Minister goes out of his way to satisfy the British Government.