Dáil Éireann debate -
Tuesday, 27 Jan 1976

Vol. 287 No. 3

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

Debate resumed on amendment No. 2:

2. In page 2, before section 2, to insert a new section as follows:

"The relevant provisions of this Act shall be subject, where appropriate to the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto.".

—(Deputy G. Collins.)

Mr. Andrews

This is a reasonable amendment. We consider the Bill to be one of the most far-reaching of its kind ever to come before the Dáil. This amendment is couched in unambiguous language. If the Bill must pass through the House, and indeed it must, having regard to the fact that the Government have a majority, it should contain some form of statement of intent to ensure the very minimum standards of human rights. The Convention on Human Rights is a document which clearly sets out the minimum standards required in relation to the treatment of individuals and groups of people. The convention is quite clear in this respect. Article 5 deals with the right to liberty and security of person. I have here a very interesting treatise on the subject by an individual called A. H. Robertson who has made a study of the whole area of human rights. The title of his book is Human Rights in Europe. When one is deliberating on any piece of legislation before this House it is important to quote from documents or books written by people who have a real grasp of the subject. We believe that the Bill, as it stands, does not give people the right to liberty and security of person on the one hand and certainly does not give people a right to fair trial.

As we have already said, we accept the intention expressed in the Bill. There are people who subscribe to the achievement of what they consider to be their particular objectives by the bullet, by the bomb, by kneecapping and so on. We reject that. In Fianna Fáil we seek the achievement of the unity of the island by peaceful means and I think it is a realisable ideal, given the proper climate and atmosphere. While the reasons for the introduction of the Bill may have been bona fide we feel that people who subscribe to murder, to burnings, to the placing of bombs— although they do not recognise the basic tenets of democracy themselves and do not subscribe to human rights of any kind and although they reject the right of people to liberty and security of person and indeed reject the rights of people to a fair trial—nevertheless, as a democracy, we have to give people who are alleged to be involved in these crimes what we consider, by our standards, to be a fair trial. The principle of the law that a person is innocent until proved guilty must be upheld. To ensure those principles and to subscribe to them, Deputy Collins's amendment must be written into this Bill.

The United Nations, in addition to the European Convention on Human Rights, have also expressly declared their intention to set down standards in relation to the liberty and security of the person. The United Nations Declaration proclaimed in Article 3 that everyone has a right to life, liberty and the security of the person. The Convention, having dealt with the right to life in Article 2, devotes Article 5 to the right to liberty. It starts with the affirmation "Every person has the right to liberty and security of person" and then goes on to define the circumstances in which someone might be deprived of his liberty, provided it is done in accordance with the due process, or as the author of the book I am quoting said, "in accordance with a procedure prescribed by law". He then goes on to describe the following cases in the given circumstances: (a) detention after conviction by a court; (b) arrest or detention for non-compliance with the order of a court; (c) arrest or detention on reasonable suspicion or as a preventative measure; (d) the detention of minors; (e) detention for medical and similar reasons; (f) detention to prevent unauthorised entry into a country or to permit deportation or extradition in certain circumstances. The article itself can be dealt with under two different heads. Paragraph 1 defines the cases in which detention is permitted and goes on to define the rights of a person thus detained.

This Bill, as we understand it, does not protect individual rights. We strongly urge the Minister to accept Deputy Collins' amendment as a very basic amendment to the far-reaching consequences of this Bill. I would like to hear the Minister's views on my short submission. I will make other submissions, as will my colleagues, during the course of this debate.

Minister for Justice (Mr. Cooney)

Let me refer to what Deputy Andrews said on the amendment. The tenor of Deputy Andrews' remarks completely overlooks the fact that we in this country, and the people who will be affected by this Bill, do not look to the European Convention on Human Rights for the protection of our personal liberty. We look to our Constitution. That is what gives us our rights and to a far greater degree than these admittedly minimum rights provided by the European Convention. If this Bill is in breach of the European Convention, it is also in breach of our Constitution. I deny it is in breach of either.

It is not the European Convention which gives us our rights or which gives rights to the parties who may be affected by this Bill; it is our Constitution. This is the point which has been overlooked by Deputies. There is not much point speaking in support of an amendment to integrate into our law on convention which is of lesser value from the point of view of the liberty of the individual than our Constitution, which is already our basic law and to which any legislation passed by this Parliament is subject.

Mr. Haughey

On that last point, the Constitution was there when a man named Lawless thought it was necessary to invoke the European Convention on Human Rights to procure justice for himself. I would not like to say whether he was right or wrong in doing that. But he felt that even though the Constitution was there, guaranteeing him certain rights and freedoms, nevertheless, in order to vindicate his cause, he deemed it necessary to go to Strasbourg to have those rights elucidated. I do not think that argument is as forceful as the Minister tries to persuade us.

If the Constitution is the bulwark the Minister claims in this context, why did we sign the Convention on Human Rights? Surely the Constitution merely lays down principles. Here we are dealing with the application and operation of specific legal provisions. The only question to be decided in that regard is whether the Bill as a whole is constitutional. That is the only way our Constitution comes into this matter. The Minister is quite adamant that it is. I suppose that will ultimately be tested. I do not think it is an answer to our case to point to the Constitution when we, with our Constitution, as a nation still felt it necessary to sign and subscribe to the European Convention on Human Rights.

The Minister is in an impossible position in refusing to accept this amendment. Here we are dealing with something of fundamental importance to individual citizens and to our country as a nation, to our country as a member of the European community of nations. Indeed, I go further, we are concerned with the position of our country as a signatory of the United Nations Charter, and a subscriber to the principles enshrined in the United Nations Charter. The European Convention on Human Rights derives basically from the United Nations Charter. I should like to quote for the House something which a former Secretary General of the United Nations said about this whole matter. He said:

The establishment of human rights provides the foundation upon which rests the political structures of human freedom. The achievement of human freedom generates the will as well as the capacity for economic and social progress. The attainment of economic progress provides the basis for true peace.

An Leas-Cheann Comhairle

Will the Deputy give the source of the quotation?

Mr. Haughey

The quotation is from a foreword by U Thant, Secretary General of the United Nations, to a publication of the United Nations entitled "The United Nations and Human Rights" published by the United Nations in New York in 1968.

It is on that philosophy, as expressed so eloquently there by the Secretary General, that the nations of the Council of Europe decided to enact for themselves their own particular convention. That convention was signed on 4th November, 1950, and came into force on 3rd September, 1953. Earlier on in this debate one of my colleagues enumerated the signatories to that convention. It is of very great importance to us to be a signatory to that convention, to be a country which upholds the principles laid down in that convention, to be a country which is prepared to submit itself to the discipline of the convention and prepared, if necessary, to go before the institutions established by the convention. We have done so in the case I mentioned, the Lawless case. We can be proud of the fact that we were, I think, the first European nation to so submit ourselves to the disciplines of the convention, to permit ourselves to be brought by an individual citizen before the Commission and to undertake to abide by its decision.

We are dealing here with something which I see as becoming increasingly important. We are living in a very turbulent world, a world in which there is a great deal of terrorism and violence. I do not mean just our country. I mean the world in general. Anybody looking at the television news in the evening sees one instance after another of violence in one country after another. Very often the entire evening's news is taken up with outbreaks of violence and civil war in different parts of the world. In that sort of situation, the international institutions such as the European Commission and the European Court will, in my view, become increasingly important, both from the point of view of individual citizens and the nations of Europe. Very often they will have to be resorted to in this disturbed and violent and turbulent world in which we are living at present.

I would be very reluctant to see us do anything which would in any way take from the standing and the status of these institutions. In particular, I refer to the European institution with which we are dealing here. On the contrary, in the sort of world in which we are living, we should do everything we can to strengthen the jurisdiction, power and influence of these international institutions. The way things are going, it is quite possible to visualise even one of the nations which has signed this convention having the misfortune to be subjected to a military dictatorship. It is only at a time like that that the worth and the value of these institutions can be seen and recognised. I should like to see us, as a nation, doing everything we can to ensure that their power, scope and jurisdiction are enhanced and increased.

That is why I think the Minister and at least one of his colleagues are making a very serious mistake in seeking to suggest to us that this legislation will serve as a headline for other nations in Europe to follow in their anxiety to combat terrorism. I think the approach should be exactly the opposite. If we are to have anything like a universal attempt to combat terrorism in Europe and in the world—particularly in Europe as far as we are concerned—it is from organisations like the Council of Europe that the effort must originally come. We would all like to see some international, universal attempt to combat terrorism, hi-jacking, and all these other activities with which the modern world is beset today. If there is to be something of that sort, it must begin in an international institution of the nature of the Council of Europe. It is quite absurd to suggest that, because we are enacting legislation to deal with our situation, that would serve as a headline for other European nations to follow.

I could see something worthwhile emanating from the Council of Europe if the nations of Europe got together and decided to try to do something about the situation. That, indeed, is a corollary to our suggestion and proposal that the way to deal with the Irish situation is to establish something which would be on a local level akin to the European Court, and that would be an all-Ireland court. That is the approach we should have to these problems and to this sort of situation.

Our amendment in the name of Deputy Collins has, as I see it, two fundamental purposes. The first purpose is that we wish to declare in effect that, even though we have to enact this legislation because of the difficulties with which we are beset, nevertheless, we do not wish our having to do that in any way to detract from our adherence to the European Convention on Human Rights.

The second purpose I see in our amendment is to endeavour to ensure that we will not in the future as a nation, as a member and as a signatory be brought before the Commission or the court as a result of the operation of these provisions. It is important to realise that the European Convention on Human Rights is a practical document. It is not some abstract declaration without regard for the realities with which European nations are confronted. It seeks to lay down the minimum in regard to human rights, recognising the fact that European nations, any of them at any time, might be confronted with extraordinary situations, might be confronted with outbreaks of civil disobedience and troubles of one sort or another.

It sets out, taking into account that difficulties can arise for any country from time to time, the minimum of human rights which has to be maintained. It is important for us to recognise that that is built into the convention. It is not a convention designed for a perfect world. It is a convention designed for a real world in which difficult, turbulent, violent situations can arise. In effect, it says that even though these situations can arise in any European nation, nevertheless, these minimum standards must be maintained in the face of any problem arising. Any nation in Europe, no matter what the future might hold for it, could sign this convention and undertake the obligations in it. That is very relevant in our case. We have signed the convention and we wish to uphold it. We have an extraordinarily difficult situation but even though we have that situation on our hands, nevertheless, we still can maintain our membership of the convention and our membership of this community in good standing.

I do not think it is valid for the Minister to argue—if he wishes to argue and I am not sure if he does or not—that because of the extraordinary situation which obtains in the North of Ireland we must forget about the Convention on Human Rights. The convention was designed to cope with that sort of situation; it was designed to cope even in the most difficult circumstances. The minimum rights laid down in the convention should and can be maintained.

The second objective in the amendment is that we want to avoid our being brought before the Commission or the court at some future date as a result of the operation of these provisions. It is only wise that we should seek to do that because as I see these provisions it is inevitable that unless something is done about them they are going to result, sooner or later and almost certainly sooner, in some person bringing Ireland before the Commission on Human Rights and before the court ultimately.

Mr. Cooney

That will be the position whether the amendment is accepted or not.

Mr. Haughey

I am trying to make a point. I am maintaining that it is almost inevitable that that will happen. If our amendment is adopted, we can avoid that situation. Our amendment will have the effect of making the provisions of the Bill subject to the provisions of the Convention on Human Rights and the fact that that is written into our legislation will mean that any person who feels aggrieved and who would otherwise have been compelled to go through the long arduous procedure of the Commission and the court will be able to have the matter tested in our courts. That is one of the fundamental purposes of our amendment. We want the provisions of the Convention on Human Rights to be written into our legislation and, therefore, it is something that can be tested in our courts. That is of fundamental significance and importance.

I believe the Minister recognises that there is the certainty that some person who is brought within the ambit of the provisions of this legislation will seek to test them under the convention. We can ensure, by adopting this amendment and making the different provisions subject to the convention, that that person instead of having to go to Strasbourg, will be able to have the matter tested and decided in the Irish courts.

Mr. Cooney

If the Irish courts find against him, will he then not want to go to Strasbourg?

Mr. Haughey

That would be a completely different set of circumstances. In fact, no citizen can go to Strasbourg until he has exhausted every remedy available to him in the Irish courts. I do not think what the Minister has said defeats my argument. My argument is unassailable, that in order to prevent persons who might think they have a case under the convention dragging us before the international institution they will be able to have the matter tested before an Irish court.

My colleagues have made clear the circumstances in which the provisions of the Minister's Bill are likely to come into conflict with the convention. The first area of difficulty is going to arise under Article 3 and it is important that we should understand that Article 3 is not an article from which there can be any derogation. Article 3 says clearly and definitely that no one shall be subjected to torture or inhuman or degrading treatment or punishment. Under Article 5, paragraph (3), I foresee a conflict arising before long. That paragraph deals with the question of an arrested or detained person having the right to bail pending trial. Because of the wording of that paragraph and because of the provisions laid down in the Bill in regard to persons surrendering themselves to the jurisdiction of the court in order to go North to hear evidence, it is almost certain that these provisions will be tested.

Of course, the very, very important item in the convention which is certainly going to give rise to conflict with the Minister's provision is Article 6 and in particular the provision in paragraph 3 subparagraph (d) of Article 6 which states categorically that anybody charged with a criminal offence has the following minimum rights:

to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

I cannot but see that particular provision of paragraph 3 (d) of Article 6 giving rise to litigation. I cannot see how, sooner or later, it is not going to be seen to be in conflict with the provisions of the Minister's Bill and, if that is so, the only remedy open to an accused person would be to start the long trek to the Commission and ultimately to the court, and so on.

If our amendment is accepted, we can deal with that situation in an entirely different way. We can make all the provisions of the Bill subject to that particular provision in the convention and the matter can be decided and settled by the Irish courts, if necessary by the Supreme Court. I should like to put it to the Minister that that is a very persuasive argument in favour of our amendment. I would be very interested to see how he would argue against that.

I should like to suggest that the Government must come out into the open with regard to this question of the convention and the case which this country brought against Great Britain, the outcome of which we are awaiting. I suggest to the Government that they are not doing themselves any justice by being devious in this regard. It is widely known what the present situation is. The Commission has come to a decision. The Commission is bound under the terms of the convention to make a report. That report is submitted to the countries concerned, the high contracting parties, as they are called. We recognise that the Governments who receive those reports are not allowed to publish them and when the reports are received the countries concerned can proceed in different ways: they can have the matter dealt with by the Committee of Ministers or they can have it referred on to the court.

It is widely known in Europe and Council of Europe circles and elsewhere that the Commission has made its report and also that a summary of that report has been given to both Governments so that the Government here and the Government in Great Britain know basically what is in the Commission's report. They should acknowledge that fact to us and should deal openly and honestly with us about this Bill in regard to that situation because it has a vital bearing on our discussion on this Bill. If the outcome of that Commission investigation is, as is widely surmised it is, that our case has been established then we must all look at this Bill in a different light. I suspect that the Government—and I should like the Minister to rebut this if he can— are hoping to get this Bill through and on to the Statute Book before the results of that case are known and I suggest that that is not the way to deal with this Parliament. If they know, and our information is that they do know what is in that report, that a summary of the report has been supplied to them and that they will get the full report in mid-February—that is our information; it is not official information but it is our information through informal contacts and through what is known as the grapevine from European circles—in fairness to Parliament and in fairness to the Irish people and in order that this Bill can be properly evaluated the Minister should indicate to us what is the position in this regard.

We do not want to have a situation where we as Parliament, because of the Government's voting majority, pass this legislation on to the Statute Book and almost immediately thereafter we are confronted with some particularly unpalatable decision from the Commission on Human Rights in regard to those very forces, those very agencies with whom this Bill commits our gardaí and our judges to work in the closest possible co-operation. There will be a very real and definite sense of national dismay if that is the outcome of this particular situation and I think the Minister, if that is his tactics, will find that those tactics will rebound very seriously on him, if he is seeking to push this Bill through, get it safely nailed down on the Statute Book and then take the report of the Commission on Human Rights in his stride.

There are many other things I should like to say about the general provisions of the Bill but I recognise that some of my colleagues wish to speak on this amendment also and I do not wish to detain them but I would just make this further point— and again I have to resort to the Report of the Law Enforcement Commission—I quote from page 18, paragraph 20 where that commission said:

The taking of extra-territorial jurisdiction covering a wide range of offences is unprecedented in common law countries although not prohibited in international law.

They are serious words by the Law Enforcement Commission. They recognise that this is unprecedented and the most they can say about it is that it is not prohibited. They cannot recommend it to us with any sort of wholehearted enthusiasm. The most they can say is that it is not prohibited in international law but it is certainly unprecedented in common law countries.

Surely in that situation where we have that sort of sentiment expressed by the authors of this legislation— and the Minister himself admits that this commission are, in fact, the real progenitors of this particular piece of legislation—with that sort of sentiment expressed by that commission surely it is only wise and judicious of us to write in this sort of protection into our Bill in order to obviate any subsequent embarrassment for us as a nation of being brought before the European Commission, the European Court, the Committee of Ministers and so on. In order to prevent that, we take this simple precaution in writing in those provisions so that they will be seen to be an overriding new element in the Bill which then must conform to the convention.

Deputy Collins has come up with a very ingenious solution that, rather than bring us before the international institutions, the matter can be threshed out in our courts here. These are compelling reasons for the Minister to accept this amendment. First of all we are saying to our fellow nations in the community of Europe: "Look, we have to have this particular unpalatable legislation but we want to assure you that though the situation is serious and tragic, nevertheless we are maintaining the main human rights and freedom laid down in the convention." Secondly, we are ensuring by adopting the amendment and writing the convention into our own law that we will deal with the matter internally and not before the international institutions.

Mr. O'Kennedy

Perhaps the Minister would reply to Deputy Haughey, from the information he has and we have not——

Mr. Cooney

An attempt was made by the Leader of the Opposition to raise that matter and the Chair ruled it out of order.

Mr. O'Kennedy

On instructions, as he admitted himself today, that he should rule it out of order. The Minister is pushing this Bill through before we have available to us what he has available.

Mr. Cooney

I am not saying what I have available to me. The Bill stands on its own feet.

Mr. G. Collins

The Minister is hiding behind the Ceann Comhairle who admitted that he was instructed by the Taoiseach's Office that he was to rule it out of order.

Mr. O'Kennedy

It is crucial to this legislation——

Mr. Cooney

This legislation stands on its own two feet.

Mr. G. Collins

No way. What about the guarantees the Minister is accepting and giving away?

Mr. Cooney

These are constitutional legal quibbles. Deputies opposite do not want the principle of it.

Ruairí Brugha

In view of the fact that it is the Government who are supporting this Bill in the House, it is open to the Opposition to support the amendment to ensure that the provisions of the Convention on Human Rights shall be applied to the provisions of this Act which would relate to an area, Northern Ireland, in which the Act will be applied.

In one sense, what Deputy Haughey is saying is correct: if the Government are pursuing this legislation, it is up to the Opposition to ensure that we at least, as a State, will not be found wrong in relation to the protection of human rights. It is, therefore, reasonable and appropriate that we should pursue this amendment because the whole nature of the legislation is of an extraordinary kind. It has been described by the Commission as unprecedented. The Minister said that the provisions comply with our Constitution and that therefore, the legislation must conform with the provisions of the country which is under another authority——

Mr. Cooney

That is the mistake some people are making. We do not seek to do that.

Ruairí Brugha

We are legislating for something that takes place in another part of the country.

Mr. Cooney

We are making that act a crime against our laws. That is all we are doing and it is completely different from what the Deputy says. We do not take jurisdiction in the other part of the country.

Ruairí Brugha

We are legislating for an act which may take place outside our jurisdiction.

Mr. Cooney

But we are not legislating for another jurisdiction. It is an important distinction, the kernel of the constitutional argument.

Ruairí Brugha

I am not a constitutional lawyer, but I can see very serious flaws in this. I do not want to prejudge the case that has been completed before the international court but it is obvious that human rights have been contravened in that area of this country, and even if one takes into consideration the views of the political authority in the other island which are supposed to operate in that area, it is obvious that that authority and the political parties in the other island agree that ordinary democracy cannot be applied in the area of Northern Ireland—in other words, that when in a normal democracy the majority elected could function, it is generally accepted the majority there cannot be allowed to exercise power.

It is in these circumstances that this Bill has been introduced, because of an abnormal situation, and we in this independent assembly are being involved in that situation, whatever the Minister may say. The Opposition are suggesting that this legislation should include in it, where appropriate, the provisions of the Convention on Human Rights. It is a fact that the very security force with which the Minister has to become involved indirectly through this Bill, the British military, are authorised to engage in search and arrest, which is not part of our legislation or our traditions.

The situation is even a bit more compromising as far as we are concerned in the sense that the same security force have not moved against paramilitaries who have been dictating politically. I do not think I am going outside the ambit of the Bill by referring to them. It is in that sort of situation, where the courts here may require or propose to a defendant that he should surrender himself into the security authority of another jurisdiction, that we are putting forward this amendment. We have heard quite enough in recent times about areas in which human rights are being contravened. We can, of course, admit that a situation can be so unstable, as it is in the area of Northern Ireland, that it would be impossible to apply these particular requirements. We cannot afford to ignore the fact that this State has taken proceedings against the very authority with whom we propose to co-operate because of events which took place in the area under their control a few years ago. No harm could be done by relating the relevant provisions of this Bill to the provisions of the Convention on Human Rights and it is for that reason we put forward this amendment.

Mr. O'Kennedy

First of all, I should like to comment on the Minister's response or, rather, lack of response to the basic reasons we gave for relying on the Convention on Human Rights. At column 241 of Volume 287 of the Official Report the Minister said:

...The only reason why such an amendment would be necessary would be because there was something in our law which did not honour the rights provided for by that convention...

The Minister bases his whole case on that. Only if there was something in our law which did not honour the rights of the convention would such an amendment as we proposed be justified. I want to remind the Minister now of the reasons we gave then, some of which have been repeated today, to which he did not reply. The essential one is that the inclusion of the Convention on Human Rights in our substantive law would immediately involve reciprocal action on the part of the British Government, otherwise the whole purpose of the legislation falls. The Minister says that they will do what we are doing here, that, in fact, they took the initiative and have already passed similar legislation. But we are not just suggesting importing the Convention on Human Rights into our law; we are equally ensuring that by a reciprocal arrangement it will be imported into British law, something vitally important from the point of view of this particular legislation. Now the Minister made no comment on that. I invite him to do so when he comes to reply on this. A crucial issue is involved.

Secondly, the Minister has talked about guarantees. We have no jurisdiction, and the Minister acknowledges this, over the conduct of the police, of the courts or of any administrative organ in either Northern Ireland or the United Kingdom. Therefore, we have a responsibility to our citizens to ensure the maximum guarantees of fundamental freedoms to them under our law. We cannot just stand back and say we have been told they will play fair. I shall not comment on whether they will or not, but the record of the past does not give grounds for confidence. The judgment in the torture case we brought will not, I believe, give ground for confidence. The Minister is prepared to dismiss all this and say he is personally satisfied with the informal guarantees.

Mr. Cooney

We give the guarantees here. I have made that point ad nauseam.

Mr. O'Kennedy

But someone must go up first. If we are prepared to hazard the fundamental rights of even one man then, as a Parliament, we are a failure. We have no right to say to any individual that we will react if that individual is mistreated or maltreated. Were we to do that we would be denying our responsibility here. On that basis we cannot rely on an informal guarantee. That is why we want to ensure that our citizens will have an international tribunal effective from the point of view of the implementation of this legislation. It is not good enough to say that if it breaks down we will not go any further. We have an obligation. Remember, this will be the first time we will deliver people from our jurisdiction to another jurisdiction in custody. We cannot stand back and accept informal guarantees. We cannot discharge our responsibilities towards our citizens on that basis.

Mr. Cooney

People are being delivered regularly.

Mr. O'Kennedy

In custody?

Mr. Cooney

Yes, in custody, to stand trial in other jurisdictions.

Mr. O'Kennedy

That is for trial in other jurisdictions?

Mr. Cooney

A fortiori under this they only go temporarily.

Mr. O'Kennedy

That does not apply. We propose to deliver them into the custody of a police force over which we have no control.

Mr. Cooney

In extradition they are handed over permanently.

Mr. O'Kennedy

Of course, for offences committed in another jurisdiction. That is the purpose of extradition. That is not consistent with this. We propose to hand over citizens in custody for evidence to be taken for trials here. This is totally without precedent. The Minister overlooks reality when he tries to imply that extradition is a precedent. We must be seen to guarantee these rights to the fullest extent possible and the only way we can do that is by reference to an international convention. Our Constitution is not effective. We must operate under a proper legal, constitutional or international structure. We cannot introduce laws on the basis of informal guarantees.

Again, the Minister has argued that fundamental rights are guaranteed in our Constitution. The Minister knows that the provisions of our Constitution in regard to fundamental rights are merely broad statements of personal rights. For obvious and quite proper reasons they do not go into detail as the Convention on Human Rights does. That is understandable. They are even more detailed there than in most constitutions. It is not the purpose of a constitution to specify precise rights; it states the broad principles. For that reason in the Articles of the Convention there are precise specific provisions that will not be so specifically referred to in the Constitution.

Deputy Haughey, Deputy Collins and I referred to this matter. Article 6 (3) of the Convention states, "...that everyone charged with a criminal offence has the following minimum rights ...". All of the rights spelled out are referred to in our Constitution. Section 3 (d) states:

to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

Mr. Cooney

That is a basic fair trial which is guaranteed by our Constitution.

Mr. O'Kennedy

I will give the Minister an illustration of why it is not so basic in relation to this legislation.

Mr. Cooney

The Haughey case clarified that.

Mr. O'Kennedy

Members of the security forces, the police and army will be allowed to give evidence on commission in the North of Ireland because they are reluctant to come down here and give evidence in open court. That is the guarantee and facility provided for witnesses for the prosecution. I do not think they need have any fear about coming forward to give evidence on commission in the North of Ireland against someone who is being tried in the South. Let us contrast that with the case of a witness for the defence who may be living in Belfast and who wishes to give evidence on commission in Belfast when the commission evidence is being taken. Will he have the same feeling of security or guarantee of immunity as a member of the police force or the army may have? If such a person comes south and gives evidence openly at the trial and if his name is published, will such a person have the same sense of immunity as the witness for the prosecution? Is the accused put in the same position with regard to witnesses for the defence as is required under Article 6 (3) (d) of the convention, as is provided for witnesses for the prosecution? I am not firmly stating that he is or is not; I am simply saying that at least it is arguable. Such a provision is not in our Constitution and the Minister should have regard to it.

The crucial point was made by Deputy Haughey. The Minister interrupted at one stage until the Deputy made it clear that what he was proposing would guarantee that the citizen would have the right to sue in our courts for breach of the convention, without having to go to the European Court of Human Rights, without bringing us into international dispute, as Deputy Haughey rightly pointed out.

The crucial points we made were as follows. First, we dealt with reciprocity, the fact that if we do this the British Government will or should do it. We would be setting an example. Secondly, we pointed out that this is the only way we can guarantee anything to our citizens under this kind of legislation. We have an obligation to give those guarantees, not just on the casual basis the Minister has mentioned. Thirdly, that this can be guaranteed by reference to an action brought by our citizens in our courts. On the last occasion I spoke I said that I thought the Minister would readily adopt this.

My personal opinion—had I been in Government long enough I would have argued this: whether it would have been adopted is another matter— is that the previous Administration, even without reprehensible legislation of this nature, might as a matter of principle have introduced into our substantive law the provisions of the Convention on Human Rights, for the reasons outlined by Deputies Haughey and Collins. This would have set a headline for these internationally recognised principles which, unfortunately, are being breached by every government practically every day. They are probably breached by private individuals also but we are concerned that governments act on their obligations.

If we have any feeling for fundamental rights and for the obligations of governments to ensure that such rights are upheld, we should be anxious to set a headline. Are we always to take the craven attitude now adopted by the Government, that we react always to the initiatives of others, or to the lack of such initiatives? Have we no sense of national pride, that we might take such initiatives? I cannot see how the Government would be compromised by doing this. I can only see that citizens' rights, about which all of us are concerned, would be more fully secured. I accept that there might be some difficulty in the discussions we would have to have with the British Government as a result of adopting such measures but the Government's obligations are clear. I can see no reason why two Governments who must work closely together— Governments that have close ties in many areas—cannot ensure that these provisions would not be adopted in the interests of all their citizens.

It is not an implication that our laws or our Constitution is less than perfect. It is no such implication on our part or on theirs. It simply means that when we go into the new area over which our courts have no immediate control that we have such an obligation. Equally, the British Government should have the same obligation in respect of their citizens who might come down here. They cannot discharge it either, except on the informal guarantees our Minister may give them. It is a strange basis on which to introduce such far-reaching legislation. The two Governments should have recognised that and, through the European Convention, guarantee that each of them would be able to discharge their fundamental obligations to all their citizens.

In his intervention during Deputy Brugha's speech, the Minister more or less said that we are not claiming jurisdiction over the North of Ireland or claiming that our laws have effect there. I should like to quote from our Constitution. Article 40.3.1º states:

The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

It is arguable that if we do this on the basis presented by the Minister that we are not acting in accordance with our constitutional obligations. It goes on to say in subsection (2) that the State shall in particular by its laws— this will be one of them—protect as best it may from unjust attack and in case of injustice done vindicate the life, person, good name and property rights of every citizen by its laws. It is not enough for the Minister to say: "If you do not behave on this we will not continue again". In my view that is not what the Constitution envisages.

It places the obligation on us to write into that legislation the kind of guarantee that the Minister says so freely in the House is there but which is not written down anywhere here. We are trying to achieve that by importing the provisions of the Convention on Human Rights into the legislation because the Constitution cannot reach out beyond at the moment, because of the de facto position, to protect those people for what may happen when they are in custody in the North of Ireland.

Surely the Minister should see the validity of that? I will not put myself in the position of a judge but I certainly think it is at least arguable as a legal proposition and counsel could argue with some cogency that we are not in that legislation guaranteeing, as our Constitution demands, that our laws will vindicate the personal rights of our citizens. That is an obligation imposed on us. We cannot run away from it and we cannot deny it. We are obliged under the Constitution to ensure that such is done. I have tried to relate my remarks entirely to what I regard as being our constitutional obligations, our fundamental obligations as legislators. I hope the Minister will, even now, begin to analyse the matter on that basis and not as he did on the last occasion when he answered the case on the basis of arguments which were not made but on the basis of arguments which he presented to himself so that he could answer them quite freely. He ignored the precise issues we mentioned. I would like to hear the Minister's response to the points that have been made from this side of the House.

Mr. Cooney

We have to look at the amendment to see what is the point of it. We are told that it is to import into our domestic law the provisions of the Convention on Human Rights. I have just been reading that convention and it is quite clear to me that the rights which are in it are all enshrined already as part of our law by virtue of our Constitution. Therefore, we are now going to import into our law something which is already there. That would be an extraordinary position to adopt in any legislation.

The European Convention on Human Rights proposes certain rights. We are a signatory to that convention. This means that nothing in our legislation contravenes it and that we honour in our legislation these minimum rights. In my opinion we go further than that. Our Constitution gives a much wider guarantee of freedom and liberties than those set out in the European Convention. The argument has been made that by adopting this amendment we would give our citizens access to the domestic courts to plead a breach of the European Convention.

If the rights given by the convention are already present in our law by virtue of the Constitution the citizen has recourse to the domestic courts in any event if he feels those rights have been breached. We do not need to have the convention embodied in our domestic law to give that citizen rights to go to the court in Strasbourg. Those rights are already there by virtue of our ratification and they have already been exercised. In addition, the fact that the UK, among other countries, have ratified the convention gives this nation a right to go, if we feel that the rights of our citizens in the other jurisdiction are being infringed, to the international institution.

Deputy O'Kennedy said that it would give us an international tribunal if we could embody this into our law with a view to obtaining a reciprocal embodiment in the British Act. He said that this would give us an international tribunal in the event of any breach occurring. We already have that as has been proved by the action that is presently coming to a conclusion and we get nothing more than is already there. It is pointless importing into our law something to give rights which are already fully and freely there both in terms of domestic consequences and extra-territorial consequences. I am not impressed by the arguments. In fact, I am quite disappointed at the underlying theme of the arguments that in some way the rights of citizens here are less than they should be.

Mr. O'Kennedy

The Minister is doing himself less than justice.

Mr. Cooney

During the time the argument went on we were told that we must put this in to ensure a fair trial, the right to examine witnesses, and we must put it in to ensure this, that and the other. These things are already part of our domestic law by virtue of our Constitution. These things are fully guaranteed.

Mr. Haughey

Of course they are but the Minister is bringing a new factor into the situation.

Mr. Cooney

May I go further? This Parliament cannot enact a law which is in breach of the Constitution. It is my contention that there is nothing in this Bill which is in breach of the Constitution and nothing in it will be found to be in breach of the Constitution. This Bill is liable, as any other Bill passed by the House, to be tested on that score before the courts who are charged with determining its constitutionality. If we import into it an omnibus clause embodying the European Convention on Human Rights it will not add to or take from its constitutionality. It is constitutional or it is not. The place in which to have that tested is the Supreme Court. If it is unconstitutional it will not be made constitutional by importing into it the European Convention on Human Rights. If it is unconstitutional it will be struck down and that is that.

I am quite confident that the rights given by our Constitution are wider and broader, much bigger and much safer from the point of view of individual liberty than those given by the European Convention on Human Rights, that those rights are already part of our law, that they are being honoured by this Bill. If this Bill does not observe them it is then liable to be attacked and found wanting by the Supreme Court. If that arises then the Bill falls and further measures will have to be introduced. I am quite confident that this Bill will stand up constitutionally and that the rights which the Deputies on the other side are worried about are not enfringed by this Bill, the right to fair trial, the right of access to the courts and the right to bail. All these things are not infringed and I am quite satisfied with the Bill before the House.

Mr. Blaney

Since the Minister seems to accept and indeed project the idea very strenuously and at some length that all that is being sought is already there why does he persist in this attitude since this side of the House are so strongly of a contrary view? If what is in amendment No. 2 is already covered why does the Minister not satisfy the opposition to the Bill as it stands in this respect by inserting the proposed amendment? Surely the Minister will agree that there is reason for difference in this, that there can be another opinion apart from his own and that the contrary opinion is held very strongly by this side of the House? It should be no problem and in no way would it lessen the intent of this measure by going along with the amendment. If that is merely making doubly sure that the rights of our citizens are guaranteed no harm will be done. On the other hand, if through the absence of the content of this amendment the rights of our citizens may be diminished, as a result of not putting it in, this is something to be deplored.

On the one hand we have a possibility, to put it no further than that, that without this the rights of the citizens are not guaranteed and may be incapable of being vindicated as the Constitution requires, so far as is practicable, and on the other hand we have the Minister saying we do not need this because it is already there. If it is already there and if by agreeing to this amendment the Minister would not be taking from the intent of the Bill why would he not agree to it? Since it is an arguable point and there are two sides to the story would the Minister not agree to this amendment? It takes nothing from the Bill and may add something to the guarantees offered to citizens which, I think, are very questionable in so far as this measure is concerned in many respects. Why can the Minister not agree to the amendment?

Mr. Cooney

There is no point in passing a law that is already there.

Mr. Blaney

This is where the Minister and this side of the House differ.

Mr. Cooney

That is where we have to leave it, so.

Mr. Blaney

Will the Minister concede that it would not in any way take away from the measure? Would it damage the intent of the Bill if it were inserted?

Mr. Cooney

I think it could because it could lead to a very confused position and that would have potential damage within it.

Mr. Blaney

Confused in what way?

Mr. O'Kennedy

How?

Mr. Cooney

To have the Constitution guaranteeing something and then to come in with a piece of legislation apparently guaranteeing the same thing would be a ridiculous situation.

Mr. O'Kennedy

What could happen in practice?

Mr. Cooney

There could be confused litigation.

Mr. O'Kennedy

What does the Minister mean? Would the Minister give us an example of what he means by that?

Mr. Cooney

Deputy O'Kennedy must know that if we were to import into this Bill the European Convention on Human Rights the attempt to make it part of our domestic law when it already accords with our domestic law would be confusing and cluttering up a piece of legislation and interfering with its interpretation, provoking and inviting interpretative actions that would be completely unnecessary.

Mr. Blaney

Surely making doubly sure of something cannot be confusion? Rather should it be clarification. The Minister must be looking at this in a different light from the rest of us in the House. What is being sought in the amendment is an aid to clarification of the intent of this measure. If there was a basis for the Minister's suggestion that the amendment could cause confusion one could only say that his previous argument that what is there does not need to be guaranteed again by this amendment would seem to fall on its face because it is only if there is any doubt about what is guaranteed that this situation could arise. If what the Minister says is the case we might as well have said when it came to the signing of the Convention on Human Rights: "We agree fully with the convention and all that appertains to it but since we already have it in our Constitution we will not sign it". The Minister's argument in this debate makes as much sense as such an argument would have made at the time we signed the convention. I do not know why the Minister should persist in this.

There is a further and more important aspect of the whole matter and that is the reciprocity we hear so much about but see such little evidence of in so far as British legislation is concerned. While the Minister may rely, to my mind dubiously, on what is contained in our Constitution, Britain has no written Constitution. Therefore, it is very important that in any matter where reciprocity is part and parcel of the arrangement what is available should be written in and the thing common to both would surely be the Convention on Human Rights. The way to get this reciprocity in the true sense, in the sense that the Minister indicates to us he expects to get, would be to accept the amendment and put the British in the position that they would have to enact legislation containing a similar provision. In this way the obligation would be placed upon Westminster to give us the reciprocal arrangement and guarantees that are, in the Minister's own view, so much a part of this measure as a whole.

I cannot see why the Minister will not consider that last point and I would like to hear him explain how we can have reciprocity in regard to this or any other law from the British Government when we are relying on the provisions of our Constitution and Britain does not have a Constitution on which anybody there or here can rely. Perhaps the Minister would give us a view on that aspect?

Progress reported; Committee to sit again.