Before I reported progress yesterday I was dealing with submissions made by Deputy Blaney in relation to Deputy Collins's amendment which seeks to have the Convention on Human Rights incorporated in the Bill. I was making the point that the amendment was unnecessary and that, in effect, it would be seeking to make a part of our law something which is already part of it. To say the least this would be an unusual position. I made the point that the worries and dangers which the Opposition advanced as being the reasons behind their amendment were groundless because the liberties which they seek to protect and preserve by the amendment are already protected in a larger and more thorough way by our Constitution. Any person who feels that his liberties are being infringed has his remedy in our courts. Our courts have always been jealous of the liberty and rights of the individual as the pattern of judicial decisions from the commencement of this State show clearly.
I submit that it is a groundless fear to say that in some way there will be a lessening of citizens' liberties unless the amendment is passed or unless the European Convention on Human Rights is incorporated in the Bill. In the unlikely event of the Constitution giving inadequate protection to any citizen and if that citizen wants to rely on the convention he can do so. He can pursue his remedy, not in a domestic court but before an international tribunal. As Deputy O'Kennedy said, it is something to be desired that there would be access to an international tribunal. The fact that we have ratified this convention enables any citizen of this State to pursue his remedies on foot of the convention before the appropriate international tribunal.
In the unlikely event of a citizen not getting justice in a domestic court he has the right to go before an international tribunal but I consider that the protections afforded by our Constitution are much wider. Deputy O'Kennedy complained that the Constitution does not particularise the rights it guarantees. No constitution does that. It guarantees the fundamental rights and then the courts vindicate those rights in their judicial decisions and this has been the pattern. We had a more recent example when two women sought to vindicate their right to act as jurors and while that right was not specifically spelt out in the Constitution nevertheless the Supreme Court found that it was a constitutional right. Similarly, while bail is not specifically mentioned in the Constitution nevertheless when the test case on the question of bail was heard some years ago the Supreme Court found that there was a constitutional right to bail.
I have complete confidence in our Constitution, in our courts and in our traditions to be satisfied that the rule of law will prevail. To suggest that the Bill needs the protection of the European Convention on Human Rights is to unwittingly take from our Constitution and from the jealous tradition of our Supreme Court in guarding the rights afforded by that Constitution. The point was made by Deputy O'Kennedy that we have our Constitution and our rights but that the Bill in some way infringes on them. My answer is that if this is so—which I deny—the courts are there. The position in relation to this Bill is exactly the same as the position in relation to any piece of legislation that may be passed by this Parliament. The courts are there to test and scrutinise every piece of legislation and if legislation is found wanting in terms of its constitutionality it will fall, become void and if the Parliament of the day want the measure it must be amended and reintroduced so as to comply with the constitutional guidelines found by the court.
The rights of the citizen are in no way more protected by accepting this amendment than they are without it because those rights are already adequately guaranteed by our Constitution and will be vindicated as the need may arise by our courts. I am quite satisfied, and I submit that the House should be satisfied, that the amendment is unnecessary. If in the unlikely event of our domestic tribunal not satisfying an aggrieved person, he has his opportunity to go before the international tribunal where he can seek redress if there is a breach of this convention. However, the history of individual applications shows that it is unlikely that this country, because of the guarantees of the Constitution, will be in breach of the convention if the matter had been found to be constitutional. In my view the Lawless case is an example of this. I am satisfied with the protection already afforded within our legal system and by our ratification of the European Convention on Human Rights. I was asked why had we ratified the convention if we did not need it but I cannot see the force of that because we are part of a larger international community and not all jurisdictions have a legal structure in which the rule of law as we know it operates in the way we know it. We have had examples of citizens of this country who have been in detention in other jurisdictions for what seemed to us to be inordinately long periods without trial.
It is important when an international convention of this type is negotiated that all countries would subscribe to it so that the convention would have a high moral force on all the nations who might be subscribing to it. Our subscribing to it, because the rule of law prevails here and is seen to prevail, gives us a certain moral authority in the European Community and makes our subscription to the convention desirable and helpful from the point of view of human rights. I do not admit it is an argument to say that we did not need to subscribe to it. I think we had an international obligation and of course the fact that we were able to subscribe to it was a vindication of our legal system, because we could not have subscribed to it unless our legal system was such as to comply with it and that we were able to subscribe to it without in any way amending our legal system or our basic law.
The point has been made that one of the motives behind the amendment is that if it is accepted there will be a compulsion or a persuasive force on the UK Government to incorporate a similar provision in the reciprocal Act. I cannot answer for another government, but the guarantees and protection given by the convention are extant in the UK, and because the UK have ratified the convention, and should there be a breach of the convention on the part of that Government, any citizen within that jurisdiction has his rights. Not only that but the other countries who are parties to the convention have rights under it as well. We have shown that those rights exist by ourselves taking action for a breach of the convention. The sanctions and the protection which the convention imposes are already existing in both jurisdictions by reason of the fact that both have ratified the convention, and it does not add to any citizen's position or status or increase the measure of protection available to him to accept this amendment. Our citizens are already adequately protected by virtue of our ratification, and as has been exemplified, any country can make a complaint against another country who is a signatory and the matter would then be investigated with all the consequences that come from it. This has been demonstrated as being real protection.
The two sections in the convention which have been brought before the House are Articles 5 (3) and 6 (3). Article 6 (3) deals with the right of a person charged with a criminal offence and provides that a person will have the right to be informed promptly of the offence charged against him, to have adequate time and facilities for the preparation of his defence, to defend himself in person or through legal assistance of his own choosing, to have witnesses against him examined and to be able to obtain witnesses for himself, to have the assistance of an interpreter if he cannot understand the language used in the court. I submit that all those rights are present in the fullest degree under our system and will continue to be present in cases coming within the ambit of this Bill.
To be informed promptly in a language which he understands of the nature and cause of the accusation against him is traditional, basic to our legal code because an indictment must set out fully the charge and must be precise in charging an offence known to the law. To give adequate time and facilities for the preparation of his defence: again this is a basic part of the conduct of our criminal trials, that adequate time is afforded to the defence counsel to prepare their defence. Quite commonly an adjournment is granted as a matter of course and there is no opposition from the prosecution provided, of course, the application isbona fide.
To defend himself in person or through legal assistance: this right is not interfered with in the Bill. An accused may go north for the taking of evidence on commission which, thought connected with it, is not part of the trial. It is important to remember that technical distinction. If the accused wishes to be present he may do so and he is given immunity while present. It may be argued that the fact that he has had to surrender bail and go in custody is in some way a diminution of his rights to defend himself, some lessening of his position. That situation is analogous with the person surrendering bail to stand trial before the court —it is not part of the trial but it is connected with it. I cannot see any difference in quality between surrendering bail for the purpose of taking evidence on commission and doing so for the purpose of the trial. It will be argued that one incident takes place within the jurisdiction and another outside it. I do not see any difference provided the immunity is there.
Another part of the convention lays down the right of an accused to defend himself or to be defended by legal assistance of his own choosing. This right is not infringed in any way because the accused is entitled to have the assistance of a solicitor and counsel at the trial itself and at the taking of evidence on commission. In that connection I might mention that at the taking of evidence on commission in the North the accused is entitled to have present the same solicitor and counsel as would be available for him in the Special Criminal Court in this jurisdiction. A misunderstanding has arisen that because of the lack of reciprocal rights of audience that would not be so. The taking of evidence on commission is not part of the trial though it is connected with it. The lack of right of audience does not apply and accordingly the accused can be represented at the commission by the same solicitor and counsel who appear for him in the court here. Therefore, there is no lessening of his rights or interference with the right. The convention lays down the right to legal aid if the interests of justice require it. Legal aid is available normally here. When this unhappy dispute with the Bar Council ends, legal aid will be available as part of our legal system.
The convention lays down that an accused person is entitled to call witnesses in his defence and to cross-examine prosecution witnesses. The point has been made that somehow witnesses will be apprehensive about giving evidence and that if the trial is in the South a witness who is prepared to come from the North to give evidence on behalf of a defendant will be in some way prejudiced or put in danger. I do not see why that should follow. I presume a witness would come down to exonerate somebody and I do not see why he should be in fear in coming South to exonerate a fellow citizen. If he is fearful of what might happen to him in the South, he may opt to give his evidence on commission in the North. He is in the same position as any witness anywhere—he is entitled to all the protection of the law. If he does not want to reveal his name and address it is a matter for the court whether he should be compelled to do so.
I do not see that there is any distinction being made between defence and prosecution in regard to the adducing of evidence. The rights which the parties have to produce witnesses and give evidence on their behalf are not taken away by this Bill. The Bill is very specific in ensuring that the same rights obtain for the defence as for the prosecution and I submit, once that is the situation, there is no breach of the convention. If any person affected by this Bill finds the rights given by the convention are breached he has his remedy. He can take this Government before the international tribunal in Strasbourg and he also has his rights in the domestic courts because, if any rights are breached, it will be quite clear the Bill is unconstitutional. I am satisfied on the very strongest advice given me that this is not so.
The other article mentioned as affected adversely by the Bill is Article 5, paragraph 3. That article provides that everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of the article, referring to lawful arrest and detention, shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and, shall be entitled to trial within a reasonable time or to release pending trial and release may be conditioned by guarantees to appear for trial. What that article gives is a right to speedy trial and a right to bail pending trial. I submit there is nothing in this Bill which in any way infringes the rights given by that article. The right to speedy trial is there and, if speedy trial does not take place, there is the same redress available as is available under the criminal code. The accused is entitled to go to court and protest and, if the trial is not proceeded with, the proceedings will be struck out. This has happened in the past when there was undue delay. Again, there is the right to bail. The case has been made that the right to bail is infringed because, if the accused has to go north to give evidence on commission, he has to surrender his bail. I see nothing different in that situation from that of the accused having to stand trial in the custody of a prison officer in the domestic court. I would be quite happy to argue that this does not in any way interfere with the right to bail as defined by the Supreme Court. I am quite satisfied, too, that there is no breach of Article 5 in this Bill and, as I say, if there should be a breach, a citizen has his remedy both domestically and in the international tribunal.
It has been suggested that the Bill by requiring an accused to go in custody is in breach of the convention. This suggestion overlooks two important factors. The first is, as I have already said, in factual terms the Bill does not breach the convention because the accused can be there in person with immunity and advise counsel and examine witnesses or have them examined on his behalf. He is in custody only for the purpose of taking evidence on commission. He has immunity. I have indicated that the guarantee for that immunity is the power that remains to the Executive here to say: "Stop. No more action in this particular arrangement because it has not been honoured". Deputy O'Kennedy made the point that this is all very fine for the second person but what about the first when there has been a dishonouring of the immunity? All I can answer to that is—it is the same with any citizen's rights—give him the right. I have a right to stand up here or outside and make a speech. That is a right given to me by the State and the fact that it is given to me by statute guarantees that right and, should that right be breached, the State will intervene and the proper sanction will be applied. That is the position with regard to any right. The question of the enforcement of a right depends on its observance and its being honoured. All one can do is give the right and then provide the sanction to ensure its observance. That is the way any law is enforced. You provide for its observance. That is the point.
The Opposition have overlooked the fact that there is another convention in existence in Europe under the auspices of the Council of Europe, namely, the convention dealing with mutual assistance in criminal matters. The date is 1959. This specifically provides for the taking of evidence on commission abroad for criminal trials. It is, therefore, contradictory to say the Convention on Human Rights is breached because we provide for the taking of evidence abroad on commission when the same forum that provided the Convention on Human Rights has also been the author of another convention providing precisely for that which the Opposition say is breached by the first convention.