One copy will not do when there are so many of us concerned on this side. One copy will do over there for Deputy O'Connell who is the only Member who seems to be interested over there, but one will not do for us. That is by way of passing. The thing that is central to our amendment is that in introducing this we will extract on a reciprocal basis a similar arrangement and commitment from the British Government—that they will incorporate it into their law at least in so far as it relates to this legislation. That is a fundamental part. To do that we have to give the lead. We have given the lead many times in connection with human rights. We would be very glad to give the lead in this connection as well, particularly when there are fundamental matters involved in this legislation.
Might I indicate that, for instance, the United Kingdom have not ratified or adopted Protocol 4 to the Convention on Human Rights? If one looks at the provisions of Protocol 4 one must ask why they did not adopt or ratify it. Some of the Articles of that Protocol may indicate that they do not find themselves able to give effect to these fundamental freedoms set out therein. Article 2 of Protocol 4 might be worth reading in relation to what we are speaking about:
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
I wonder whether or not a person who would be lawfully within the territory in this case and surrendered himself voluntarily into custody could be accorded that right? It continues:
2. Everyone shall be free to leave any country, including his own.
There is an interesting one in Article 3 which says:
1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.
And:
2. No one shall be deprived of the right to enter the territory of the State of which he is a national.
Some concern has been expressed about expulsions from the mainland, or the right of people who are residents of the Six Counties to enter the mainland of the United Kingdom. For the moment I am referring to Protocol 4; perhaps those may be the grounds on which they have not adopted that.
Relating to the whole convention it is vitally important that where we are going beyond the bounds of our own immediate control and responsibility—which I think the Minister will freely acknowledge we are doing here —where we are depending on the "guarantees" of another jurisdiction, depending on the authority and the implementation of that authority of another jurisdiction, then surely we must at least do all possible to ensure that that authority, in that other jurisdiction, will correspond, as Deputy G. Collins has said, at least to the minimum standards which are those set out in the Convention on Human Rights.
If we are literally to take upon ourselves responsibilities for what is done elsewhere, over which we have no control—and that is clearly evident from what emerged in the debate on the first amendment here—then the least we can do is introduce, for those who will be subjected to those procedures, the guarantees of this convention written in that interest, the protection of human rights and fundamental freedoms. I cannot imagine that writing in those guarantees and ensuring those fundamental freedoms could be said to be anything other than basic to a proposal of this nature. It may be argued that possibly some time ago—last year or the year before—had this Bill never arisen we should have adopted this convention and its Protocols as part of our national law. That is a good case. The urgency for it would seem to have arisen. If the relevant provisions were adopted in relation to this Bill, a person could then make a complaint in our courts in relation to infringement of the fundamental provisions of the convention. At present, of course, that is not open to him.
I am commenting now on judicial decisions that have been taken. It is fair to say that our Supreme Court, particularly over the last decade, has shown itself to be particularly sensitive to the fundamental freedoms most of which are incorporated specifically in our Constitution. But even in relation to those that may not be referred to specifically, our Supreme Court, to say the least of it, has taken note of them. On numerous occasions this convention has been referred to in that Supreme Court, by way of guidance, if not direction. It is right that we should acknowledge that our Supreme Court —in accordance with its obligations and the sensitivity it shows for human rights—has taken heed of the principles underlying this convention. Therefore, it would seem to be consistent that we now confer on them, and on our courts, the right to hear complaints based on breaches of the provisions of the convention and its protocols.
It is interesting to read the Preamble to the convention to see what is the purpose behind it, as distinct from the Articles to which I shall refer later:
The Governments signatory hereto, being Members of the Council of Europe,
Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10th December, 1948;
Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared;
That was the purpose of it—that this declaration would secure the universal and effective recognition and observance of the rights therein declared. There must have been areas in the national laws of the member countries, gaps, omissions and so on, which made it necessary to include a provision of that sort. The preamble continues:
Considering that the aim of the Council of Europe is the achievement of greater unity between its Members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of Human Rights and Fundamental Freedoms;
If we are to take that on its face value —and I see no reason why we should not—it says that the more we would adopt this convention, far from creating any divisions between the members, it should mean, on the other hand, further to quote:
... the achievement of greater unity between its Members...
As far as we are concerned with the United Kingdom and ourselves, far from creating any divisions or exacerbating relations between the two countries, it should have the opposite effect.
The preamble continues to say:
Reaffirming their profound belief in those Fundamental Freedoms which are the foundation of justice and peace in the world——
and this is very important
——and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend;
I do not need to persuade the Minister or anybody that what we have at present in the Six Counties of Northern Ireland cannot be described as an effective political democracy. That convention recognises that the very foundation of human rights and fundamental freedoms is, amongst other things, an effective political democracy. To the extent that one does not have it, the obligation imposed on us to secure those rights and fundamental freedoms become all the more urgent and pressing. That makes the argument for the adoption of the convention even more cogent.
Finally, the preamble says:
Being resolved, as the Governments of European countries which are like minded and have a common heritage of political traditions, ideals, freedom and the rule of law to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration,
Have agreed as follows:
It is fair to say that what follows in the various Articles has to be stated by way of general principle and, accordingly, is so stated. When one looks at the general principles outlined, obviously they cannot be specific when talking about how those rights are to be implemented but they can be specific as to the nature of those rights. It is vitally important that we be seen to support those rights in every way possible and anything we do should not in any way be an infringement of those rights.
Article 5 says:
Everyone has the right to liberty and security of person.
Deputy G. Collins referred to these. I merely want to make some reference to the effect they might have on this Bill:
No one shall be deprived of his liberty save in the following cases and in accordance with a precedure prescribed by law.
Deputy G. Collins mentioned the cases. It is fairly clear that the provisions of section 11 of this Bill are not envisaged within the exceptions mentioned in Article 5 of that convention. Here we have a situation where a person in order to exercise rights has to surrender himself into custody. He is thereby obliging himself to be deprived of his right to liberty and security. It is at least arguable that a man obliged to surrender himself into custody, thereby surrendering his liberty, will be deprived of other rights he is entitled to exercise under this convention. That, to me, is certainly against the spirit, if not the letter, of the convention. If it is arguable, then surely the protection should be written in so that those who find themselves in the position I have outlined can feel secure and guaranteed against infringement.
Article 6 of the convention provides:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Will what is proposed here be a fair hearing within the meaning of the convention? Is it a fair hearing if a man may or may not be present when evidence is given against him? If it is not, and it is arguable that it is not, then this convention we have so willingly and zealously adopted should be there as a fundamental protection in our courts for individuals whose liberty we are charged to guarantee in accordance with the law.
Article 6 goes on to say:
Judgment shall be pronounced publicly...
Clause (2) of Article 6 provides:
Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
Clause (3) prescribes the minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
The Minister might have regard to some of the problems arising for citizens at the moment who are deprived of that right.
