Dáil Éireann debate -
Wednesday, 28 Jan 1976

Vol. 287 No. 4

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

Debate resumed on amendment No. 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.)

Minister for Justice (Mr. Cooney)

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 is bona 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.

Mr. O'Kennedy

That is inaccurate. It is not precisely the same thing and the Minister knows that.

Mr. Cooney

The European Convention on Mutual Assistance in Criminal Matters specifically provides for the taking of evidence on commission.

Mr. O'Kennedy

Does it provide for the accused to go in custody?

An Ceann Comhairle

Deputy O'Kennedy must allow the Minister to make his speech. The Deputy will be afforded an opportunity of speaking.

Mr. O'Kennedy

It is for the sake of accuracy. One expects accuracy from the Minister.

Mr. Cooney

It is quite ridiculous to say the Convention on Human Rights is breached because we provide for the taking of evidence abroad on commission.

Mr. O'Kennedy

That is not accurate.

Mr. Cooney

It is quite a regular practice for Deputy O'Kennedy to interrupt when he does not like an argument.

Mr. O'Kennedy

No, when the Minister is wrong. It is not an argument. It is fact.

An Ceann Comhairle

Deputy O'Kennedy must desist from interrupting.

Mr. O'Kennedy

A Cheann Comhairle, you are very testy this morning.

An Ceann Comhairle

This is Committee Stage and the Deputy will be afforded every opportunity of making his argument.

Mr. Cooney

The Convention on Mutual Assistance in Criminal Matters has been ratified by members of the Council of Europe and eight of the nine have ratified the Convention on Human Rights.

Mr. Blaney

Is Britain among the eight?

Mr. Cooney

I have not got the eight signatories but Britain is one of the signatories of the Convention on Human Rights.

Mr. Blaney

Is she also a signatory to the other convention?

Mr. Cooney

I will check on that. She is a signatory to the Convention on Human Rights. The Law Enforcement Commission has also pointed out that the taking of evidence on commission is used in other countries in criminal cases. It is no novelty as far as we are concerned in civil cases. I am quite satisfied that the protection sought by this amendment is already present in our domestic code. Acceptance of it would simply mean putting into the Bill something that is already part of our law, a pointless sort of exercise and tantamount to saying that the Constitution shall be read as part of this Bill. The amendment is unnecessary.

Mr. Blaney

One would find the Minister's arguments quite convincing if one were dealing with a like situation in both parts of the country. Of course we are not. We are here proposing to take certain actions in dealing with specified offences committed either here or in the Six Counties and we are doing that on the basis of reciprocal law in the jurisdiction of the Six Counties' courts. That territory does not provide justice to all its people. It never has and obviously it never will. Therefore, all of the Minister's arguments do not apply in this case, good and sound as the argument may appear on face value.

The Minister has spoken about witnesses for the prosecution and for the defence having the same kind of rights. He said that witnesses coming South, particularly defence witnesses, will have nothing to be afraid of in coming down here to give evidence to exonerate an accused person here, and even if they have such fears they have the option of giving evidence on commission in the 6-county courts. So far as defence witnesses are concerned, there will be fear regarding retaliatory measures that may be taken against them in the Six Counties. Whether they give evidence in the South directly to the court, with or without their names being published in the newspapers, they will be known and will be marked down for treatment afterwards.

This is where the Minister's case falls. He is trying to make it appear to be a normal situation but it is a totally abnormal situation where the accused, guilty or alleged guilty of offences as scheduled, will be of one particular political or religious persuation. Except in the most extraordinary, accidental situation, we will not find a loyalist accused of any of the scheduled offences being apprehended in the South—he will not be here—and brought before our courts. We are providing a measure that will apply only to those of the minority in the Six Counties who are accused of any of the scheduled offences and who come here or are found on this side of the Border. To say that it is a reciprocal measure, that there is any parallel here as against what will happen in the Six Counties or what will be provided for by British legislation, is hollow and empty. There is no parallel and there is nothing reciprocal about it; we are providing for a situation where in all practical cases it will be a member of the minority in the Six Counties who will be before our courts. We will be acting on an accusation of the powers-that-be in the Six Counties to bring that person before our courts. The accusers will be afraid to come South to give their evidence but yet we go to all the trouble and paraphernalia of taking evidence on commission in order to secure these people who are afraid to come here to give evidence.

We are told that the provision regarding the giving of evidence on commission is a fair and equal one as between prosecution and defence witnesses. It is all very well to say that the defence witnesses can come here or give evidence on commission in the Six Counties because they will have nothing to fear, but there is no provision in this measure that can secure their safety after they give evidence in a case where we prosecute someone at the behest of the authorities in the Six Counties.

We cannot do anything about this. Perhaps by pushing this amendment some little assurance can be given that would help to provide some protection outside and beyond the courts in the Six Counties that have shown themselves to be partial and rigged in most cases in matters of a political nature. If we can push or persuade the British authorities to do likewise, we will have gone some little way to even the balance, which is totally imbalanced at the moment, between the rights available to the accused whom we may prosecute at the behest of the six-county authorities and the prosecution who have nothing to fear in coming here or in giving their evidence on commission in their own jurisdiction.

The Minister said that Britain is a signatory to the Convention on Human Rights. We understand that and Ireland is a signatory to that convention also. However, since they have not a written constitution, is there any reason why they should not be persuaded—we should insist on it—to legislate as we are doing in order to give persons in their jurisdiction in the Six Counties the right to proceed under their laws rather than, as the Minister so glibly said, that they would have the right to take their action to the European Court of Human Rights? Five years ago Ireland took Britain to the European Court of Human Rights but we have not yet got a result of any of the proceedings, although it is suggested that the Government have got the results of the report. The public have not been told but that is not the point. Five years after the event we have not been told the conclusion of the complaint and to use that as an example of how it could work is an argument against the Minister's statement this morning.

There is no point in talking about the right to go to the European Court of Human Rights when it has taken five years so far for this country to get any decision regarding its complaint against Britain or to get a report of the proceedings and even when we get the report it does not mean that we have got a decision on anything. All it will do is confirm what we know already, namely, that brutalities have taken place under the jurisdiction of the British in the Six Counties. It will only highlight the reasons why we should not proceed with this measure. We are proceeding with this legislation on the spurious basis that there will be parallel legislation from Westminster in relation to the Six Counties where law as we know it, and justice as we expect it, does not operate. We should keep this clearly in mind. If we did this we would not be wasting our time in providing this measure here.

The Minister talked about the accused handing himself over into custody, surrendering his bail, and said there is nothing wrong with going into the jurisdiction of the Six Counties and having his rights of listening to his own trial. He will not opt to go if he has any brains at all because, whether guilty or innocent, once the figner has been pointed at him, whether proved or not, he is already a marked man so why put himself into the hands of those who have pointed the finger? If we are to make our own deductions, those who make the accusations are suspected of being involved in the wiping out of people to whom they can get them. That is finger if they can get them. That is one of the reasons why we find a number of people coming across the Border from the Six Counties, getting out of that territory because they know they cannot expect a fair trial once the finger has been pointed at them.

They also know that even if, having been tried in the Six Counties, they are exonerated there are those in the community there who will not necessarily accept the exoneration of an accused and will carry out their own sentences in their own way, as we have seen happen too often in the past. We are dealing with a most unusual and extraordinary situation which is not to be confused in any way with the very nice acceptable type of situation the Minister has been talking about, dealing on a reciprocal basis in regard to these matters with another sovereign State. We are dealing with an appalling situation. We are dealing with a situation where we are likening ourselves to the set-up in the Six Counties. If we are to operate our courts and our laws parallel to the manner in which the courts are operated in the Six Counties then all I can say is God help the courts on this side of the Border in the administration of justice in the future if we are to take our pattern from what has been passing for justice and administration of law in the Six Counties over the years.

The Minister talks about the same rights for the defence witnesses and the prosecution witnesses. Why should we provide this whole paraphernalia merely because it is evident that those who make the accusations that will bring about prosecutions in our courts under this measure are afraid to come across the Border to give their evidence? It is in order to accommodate these people that we are providing this paraphernalia which has in-built in it the gravest dangers and the certainty that there will not be fair trials. Trials are incapable of being carried out in a fair manner, not through any necessary lack on the part of our courts or our peacekeeping forces, but because we are dealing with an extraordinary set-up in the Six Counties, for which there is no parallel here, no parallel in the administration of justice and no parallel in the everyday situation obtaining here and there so how can we with any feeling of security or honesty offer this measure to be enacted into law and expect that it will be in any way accepted in a general manner by our public as a fair measure?

Surely if the law we enact, before it ever goes into operation, can be seen plainly not to provide the normal safeguards for the administration of law, particularly to people that will be accused under that law, then it is bad before it starts. I assert that this is a bad measure, that it is one that we should not be discussing at all and that in asking to have the amendment accepted we are only doing the least that can be done to improve what is a bad measure as it stands, to give some little assurances in it that are not otherwise available and can be seen not to be available.

The Minister suggests, as he has done time and again, if what has been said from this side of the House proves correct in one case then it is all over because we will stop operating and that is really the end of the matter. The Minister says, to a degree truthfully, that all he can do is provide the safeguards. He says we cannot go beyond that in ensuring that the first case may not work out that way but it is because of our inability, outside our own jurisdiction, to ensure that the rights the Minister writes into the measure can be secured for the accused that there will be no accused opting to take up those rights, the right of being present at his own trial, in this case be present in the Six Counties jurisdiction, while evidence is being given on commission.

We come very quickly to the point where what we are providing here is theoretically acceptable in a normal situation as between two sovereign States but clearly is unacceptable in our circumstances when it relates to the Six Counties administration and unacceptable in this specific instance on the basis that the accused is not being given the right in practice, though in theory, to attend and be present at his own trial. That is the practical situation. If this were being done for any really good solid reason it might be understandable and could conceivably be acceptable. The accused's basic right of being present at his own trial to all practical purposes is being denied him in this case because his accusers are afraid to come here and give evidence in our courts. Surely we are crawling on our bellies to these people and ignoring the rights of the citizens of this country, resident in the Six Counties, who had to bail out of there because of harassment by the forces of the Crown. Others, because they were unable to vent their spleen on them, as they have left, will make their accusations and allegations. Under this measure we will act, bring them before our courts and say they will get a fair trial. They can go to hear the evidence against them on commission in the Six Counties but, of course, they will not go. They would be right fools if they did. If the Minister is not aware of the reasons why they should not go, they are so aware, to the degree that they will not tempt Providence by handing themselves back into custody of those they know from experience are called peacekeepers but who are anything but, when it comes to dealing with the minority in their jurisdiction.

The basis of the Minister's operation is to provide theoretical rights for the accused persons who will invariably be from the minority in the Six Counties. They will have been accused by the authorities in the Six Counties and have come across the Border. They will be apprehended here because of allegations made in the North. Theoretically the Minister is providing the basic rights for such an accused to be present at his own trial. The damnable thing is that this is being done merely because the people who make these accusations are cowards and are afraid to come into our jurisdiction to give their evidence and nail the person they are accusing.

An Ceann Comhairle

I am sorry to interrupt the Deputy but he seems to be indulging in a lot of repetition. What we are hearing now is tantamount to a Second Reading speech rather than a speech on Committee Stage. I would be grateful if the Deputy would relate his remarks more closely to the amendment before the House.

Mr. Blaney

I could not agree more. If I have been repeating every line and ever sentence of my arguments, it is because even I am aware of the repetition and the Second Reading nature of all the speeches on this Committee Stage. When I looked at this amendment and gave some thought to it, it appeared to be inevitable that speeches made would be of a Second Reading nature but I am not the sole offender. I am not being an offender merely for the sake of it. By the very nature of the arguments which have been going across the floor of this House and because of the nature of this measure, there is an unfortunate tendency for the Committee Stage to be turned into a rehash of the Second Stage debate.

I would prefer if there were much shorter contributions, as is normal on a Committee Stage. After each counter-contribution by Members who do not agree with the Minister, the Minister could specifically and as briefly as possible answer each point rather than waiting until several lengthy contributions are made without intervening. I will endeavour to conform with the well established rules of the House in this matter. If the Minister followed my suggestion I would find them easier to follow. He might cover each point more minutely and more clearly if he answered them individually rather than taking many points together.

The Minister might indicate why it is that those who make accusations in the Six Counties should have a special law and procedure built into our law to accommodate them, merely because they are cowards and are afraid to come into our jurisdiction to give evidence against those they accuse and whom we will pick up under this measure and bring before our courts. Why should that arrangement be made when there is no basis for their fears? Why only in theory should we hold out the prospect that an accused person coming before our courts, charged with an offence under this measure, will get his basic and just rights, namely, to listen to the evidence being given on commission, while, in practice, he dare not and will not do it? How can the Minister glibly pass over the fact that there is no written constitution in Great Britain? While we might go quite a way towards accepting, and could be persuaded, that there is not a need for the amendment because of the general principles enshrined in our Constitution, there is no parallel situation obtaining in Britain. Therefore, the insertion of this amendment into this measure is absolutely necessary in order that Britain may be persuaded, indeed, should be compelled, to write in a similar provision in her legislation, if she wants this measure to go through. I would ask the Minister to give us a clear and succint answer to that.

The parallel is not there. They have no Constitution; we have. Let us put this in. Let us put it to them that they should include it and give the right under their law of proceeding against them under their own law rather than this nebulous offering that, because both are signatories to the Convention on Human Rights, the citizen or the individual in either jurisdiction has the right to proceed to the European Courts, a right which is of little use, of which we as a country have evidence as we proceeded to it five years ago but a report of the findings has not yet been published.

As a country we may be able to stand around and wait for such a lengthy period, but that is of little value to some accused person whose rights are infringed and who, as a result of those rights being infringed, may be languishing in jail while he goes through what is provided for him in broad terms under the Convention on Human Rights as a citizen of this or the British jurisdiction. Five years later he could be still waiting for a result, just as we as a country are waiting for a result of our complaint against the British, proceeding, as we do, on much the same basis.

Can the Minister give us a clear answer on that? There is no parallel constitutional provision in Britain. Therefore, not even that argument can be made of their having legislation of a similar nature to ours since they have not got a Constitution similar to ours. If we inserted this amendment and they did likewise we would have common ground in that we would both be making our courts and our administration of this law subject to the provisions of the Convention on Human Rights and, in that way, providing equally in both jurisdictions the right of the individual to proceed within the courts of his own jurisdiction.

The Minister also said that the taking of evidence on commission is provided for under the European Convention on Mutual Assistance. He said that eight out of the nine Common Market countries have become signatories to this provision but that he is not yet aware—although he may now be aware—whether Britain is one of the eight who signed.

Mr. O'Kennedy

The provisions are very different. I have just got a copy.

Mr. Blaney

I was about to say that, whether or not Britain has signed, is of little consequence. Regardless of the content of this convention which Deputy O'Kennedy has been having a look at since the Minister brought up this matter, the same arguments would apply as apply to the British being a signatory to the Convention on Human Rights which does not, in itself, give any practical protection for accused persons, or persons giving evidence, and so forth. It cannot be of the same value as would be the intention of the amendment which we are discussing. Perhaps the Minister can give us straightforward assistance point by point on these specific matters. In that way we may be able to relieve our minds of our apprehensions in regard to others. Perhaps we could get a little more clarity on the debate and on the amendment as a whole.

Mr. Cooney

Deputy Blaney raised a number of questions. I take his point that a brief reply and, indeed, brief contributions would be helpful. The first point he raised was: why do we provide a commission procedure for prosecution witnesses who would be apprehensive about coming South? He suggested that if these people have evidence to give they should have no fears of coming South. I agree they should have no fears of coming South. I have no doubt they will be fully protected should they decide to come South. We do not know in practice yet whether or not they will come South. They may decide not to come South because of their apprehensions about the South, mistaken though they may be but nonetheless very real because of some of the things which happened in the South in the past, and their ignorance of the attitude in the South concerning the IRA. By the way I am surprised at Deputy Blaney who knows that part of the country persisting in the use of the term "the Six Counties" which he knows is offensive to the vast majority of the people in that area——

Mr. Blaney

Not any more offensive than their use of "Ulster" is to me.

Mr. Cooney

The legal name of the area is Northern Ireland.

Mr. Blaney

There is no such legal entity. There never was and there never will be.

Mr. Cooney

That is the sort of attitude that raises apprehensions on the part of the majority in the North——

Mr. Blaney

Why the blazes should there not be that sort of attitude?

Mr. Cooney

They are afraid of the intolerance of certain elements of the population here.

Mr. Blaney

Next we will be told that the Six Counties belong to Great Britain.

Mr. Cooney

They are afraid because of the intolerant attitude expressed here.

Mr. Blaney

The RUC are afraid to come down. The British Army are afraid to come down. The SAS are afraid to come down.

Mr. Cooney

I am not saying who will or will not come down. Deputy Blaney asked me a question and he asked specifically for me to reply as briefly as possible to the question put. I am endeavouring to do that. If he does not like my reply he will have his turn afterwards to answer me. I would ask him to bear with me.

Mr. Blaney

Not while the Minister is attacking my description of the Six Counties.

Mr. Cooney

I do not know whether or not witnesses from Northern Ireland will come down here. We will have to wait and see. I apprehend that witnesses in Northern Ireland will be apprehensive of their safety down here, mistaken apprehensions but nevertheless real to them. For that reason, and in order to ensure that justice is done and that fugitive terrorists will not escape the consequences of their activities, we are providing this procedure. We are providing for evidence to be taken on commission. The reason it is here is that there are fears, unfounded in my opinion, but real.

It is resonable to anticipate that there will be such fears, unfounded but real, among people who might be called on to give evidence in the South, not necessarily members of the security forces, possibly civilians who have no knowledge of the South and to whom Dublin is a strange city. A civilian who is a member of the majority in the North might witness a terrorist incident. One can readily understand why that person would be apprehensive about coming South. If we are to provide for the trial of fugitive offenders, we must ensure that such people who would be able to assist at the trial in ascertaining the full facts would be enabled to give evidence in their own jurisdiction.

There is the further practical point that, if the witness is unwilling to come South, the courts have no jurisdiction to compel his attendance. Consequently, the trial could not take place because there would not be a full hearing. Deputy Blaney criticised the provision for the accused going North to attend at the taking of evidence on commission. He says it is an unreal right and that accused persons will not avail of it. This is his opinion, but it is only his opinion. I do not agree with his opinion. I think it is a real right. All we can do in an Act of Parliament is give the right and give it with suitable protections. The right is given with suitable protections. After that it is a matter of opinion, and Deputy Blaney's opinion differs from mine. If a person is given a right, one cannot say that because he chooses not to exercise that right, he is not given it. That argument does not stand up.

The third question Deputy Blaney raised was that there is no written constitution in the United Kingdom and that therefore the protection of this amendment should be incorporated in the UK Act, and that even this protection is not great because of the long delay in the making of the complaint before the international tribunal and the making known by the tribunal of its decision on the complaint. It is true there is no written constitution in the United Kingdom, but the constitution of the countries where there are written constitutions are based on constitutional conventions, practices and usages of the United Kingdom. It does not mean that there is no regard for individual rights in the United Kingdom. There is such regard. The answer to Deputy Blaney's point about the delay between the making of the complaint at Strasbourg and the finding is that the reality behind that complaint found its expression in the courts in the UK awarding damages to persons the subject matter of those complaints.

This is something that has been overlooked, that the courts in the United Kingdom have vindicated the rights of those citizens who have complained that they were subjected to unlawful processes of detention or interrogation, and substantial damages have been awarded by the UK courts against the UK Government. That is a point in favour of the argument that the rule of law exists and that irrespective of whether there is a written constitution or not there is a remedy for citizens whose rights have been infringed and who have got satisfaction. It is possible that the complaint by this country to the European Convention may have assisted them in having their rights vindicated. That is a point in favour of the procedure that was available up to now under the convention and will be available notwithstanding this amendment and notwithstanding the fact that the European Convention is not explicitly made part of the domestic law. Once it has been ratified, countries are bound by the consequences of it and one of the beneficial consequences experienced in the UK has been that citizens whose rights were infringed by unlawful detention or interrogation have had those rights vindicated and have had compensation awarded to them by the courts of the UK against the Government of the UK.

This is an indication that the system is not as black as Deputy Blaney and other speakers would have us believe. It is proof positive that basic rights and liberties do exist in that jurisdiction and are respected and vindicated by the courts. The findings by the international tribunal at this stage do not affect the individual position of the persons on whose behalf the complaint was made. Their position has already been dealt with by the domestic courts. As in all situations, arguments are not completely one way or the other, and it is important for balance that I would make this point. Deputy Blaney sees only perfidy on the other side. It is wrong that such a biased argument should be made.

Again I am slightly cynical at this protestation particularly by Deputy Blaney in regard to human rights. I am not going to argue the merits of introducing internment without trial; it is the negation of the basic rights that is the subject matter of this amendment. However, the last time it was brought into this jurisdiction — and it may well have been necessary; I am not arguing about that — it was brought in by a government composed of the party opposite of which Deputy Blaney was a leading member.

On the question of ratification, the Convention on Mutual Assistance has not been ratified by the UK, but that does not take from the argument I am making, that the principle of evidence on commission in criminal matters is a well-known principle on the mainland of Europe.

Mr. Blaney

I just want to make a point——

An Leas-Cheann Comhairle

I have called Deputy O'Kennedy.

Mr. Blaney

The Minister has made a point which has nothing to do with the second amendment and I just want to get it out of the way. It is in regard to my description of this outfit in the Six Counties. The Minister should know better than to talk in that manner about this entity.

An Leas-Cheann Comhairle

We must keep to the amendments.

Mr. Blaney

In furtherance of what the Minister has said, I am clear as to where the Six Counties and where the Twenty-Six Counties are but it beats me and other people who are not as well attuned to the geographical situation of the Six County entity as I am as to where the North of Ireland is, where Ulster begins and ends, depending on who is talking about it. I am sick of the people who keep insisting——

An Leas-Cheann Comhairle

I am calling Deputy O'Kennedy.

Mr. Blaney

——that we should bow and scrape to these people who try to——

An Leas-Cheann Comhairle

The Deputy is getting away from the amendment. I have allowed the Deputy to make a reference to the point.

Mr. Cooney

We will settle for the Six Counties of Northern Ireland.

Mr. Blaney

The North-East of Ireland.

Mr. O'Kennedy

I assume the Minister has a copy of the Convention on Mutual Assistance. I have only just now had the opportunity of getting a copy from the Library. I would invite the Minister to show me anywhere in that convention any argument to support his case that what we are doing here in this Bill has been done before under the provisions of that convention, that we are covering precisely the same area, as he said here this morning already. I will make an open confession, that when I interrupted the Minister this morning and said what he was saying was inaccurate, I said it without having seen at the time the provisions of that convention, because I knew it would be totally inconsistent that any of these conventions could contain such a provision as we have in this Bill. I now find, having checked the copy I have here, that I was right. The Minister should not say we are doing here what has been done before in a convention, because it is very different. He has a duty as a Minister introducing legislation here at least to be accurate. Indeed he has a duty to go further and not to mislead. Coming to this other convention, I would ask the Minister where the precedent exists. As far as I can see there are two articles in this convention. It is significant that the United Kingdom has not adopted this convention. The Minister is misleading this House in more ways than one. Incidentally, we have not the copy of the British legislation that the Minister promised us so long ago.

Mr. Cooney

It should be in the Library.

Mr. O'Kennedy

The Minister did say it would be circulated to the Members of the House.

Mr. Cooney

There are not enough copies to be circulated to every Deputy, but I understand a number of copies have been put into the Library.

Mr. O'Kennedy

I come to Article 8. We are dealing with witnesses only in this case. It says:

A witness or expert who has failed to answer a summons to appear, service of which has been requested, shall not, even if the summons contains a notice of penalty, be subjected to any punishment or measure or restraint; unless subsequently he voluntarily enters the territory of the requesting Party and is there again duly summoned.

Therefore, as far as witnesses are concerned, they cannot even be penalised, unless they voluntarily enter the territory of the requesting party and are there again duly summoned, and they are quite free to remain outside, quite free to come in, and if they voluntarily go in then they may be summoned and may be subject to penalty. There is no provision whatsoever of that nature in this Bill and it relates in no way to what we have in this Bill. That relates to a witness.

Let us look at the person who is being charged or, as Article 11 says, for purposes of confrontation.

A person in custody whose personal appearance as a witness or for purposes of confrontation is applied for by the requesting Party——

This relates to a person who is already in custody, and does not apply in this case where a man has to give himself into custody.

——shall be temporarily transferred to the territory where the hearing is intended to take place, provided that he shall be sent back within the period stipulated by the requested Party and subject to the provisions of Article 12 in so far as these are applicable.

It goes on to say:

Transfer may be refused

(a) if the person in custody does not consent

(b) if his presence is necessary at criminal proceedings pending in the territory of the requested Party.

This is the way it would be here—

(c) if the transfer is liable to prolong his detention, or

(d) if there are other overriding grounds for not transferring him to the territory of the requesting Party.

The significant thing there is that all that relates to a person already in custody, not to a person who has to surrender himself into custody for the purpose of exercising what the Minister inaccurately calls the rights being provided under this Bill, There is no parallel, far from it. This convention in no way relates to a person who is charged, and who is on bail as the case might be here, surrendering himself into custody to go into another jurisdiction, and to remain in custody there while evidence is being given. It does not correspond, and the Minister cannot suggest that what we are doing here is simply following a precedent which is already there. Even to the extent that there are provisions which may or may not correspond, it is evident from the exceptions that are provided for under article 11 that the transfer may be refused if the person in custody does not consent and if there are other overriding grounds for not transferring him into the territory of the requesting party.

Article 12 goes on to say:

The witness or expert, whatever his nationality, appearing on a summons before the judicial authorities of the requesting Party shall not be prosecuted or detained or subjected to any other restriction of his personal liberty in the territory of that Party in respect of acts or conventions anterior to his departure from the territory of the requested Party.

Therefore, the Minister seems to think that by saying, "We are talking of one convention but there is another convention, that of mutual assistance, and that deals with this kind of thing" that that is consistent with what we are doing here. He seems to think by doing that he can throw us all off the trail. In fact by trying to rely on an authority which does not exist he is showing just how weak his case is.

I should like to have the Minister's comments on that. The Minister will have to clear this up because he is the man who said there would be confusion. The Minister said that constitutional guarantees and guarantees under the Convention of Human Rights by way of right of action in our courts could cause confusion. Last night I asked the Minister to indicate precisely what he meant by that.

An action can be brought before our courts based on the deprival of rights which are in statute law. In the same action you can bring a claim for infringement of your common law rights and, would you believe it—and the Minister knows this very well—in the same action you can bring a claim for infringement of your constitutional rights. That is the way it is at the moment. Many actions in our courts, particularly appeals before the Supreme Court, incorporate claims for breaches against all three. No one ever suggests that that gives rise to confusion. It is the business of the law to protect all rights, to vindicate each of them, whether they arise by statute, common law or constitution.

If we saw fit to introduce the convention into our domestic law to that extent, it would of course be the business of the law to uphold the rights under that convention and it would not cause confusion. I cannot see how the Minister can say it would cause confusion. I do not know whether he is suggesting that lawyers would be confused, that they would not know which right applied. I doubt if he is saying that because he would have a low opinion of the professional capacity of a profession to which he and I belong. Indeed, any profession must know the basic precepts on which their professional services are based. I do not see the confusion. I invite the Minister to point out to me where the confusion arises. That seems to have been one of the strong arguments relied on last night.

The Minister has not as yet dealt with the question we relied on from the very start, almost from the first argument that was raised here. Nothing that we have said here is implying that there is any defect in our laws. Nothing is implied that our Constitution is less than concerned and determined about individual rights. I think the Minister will concede that I may well have more respect for at least the origins of the Constitution than the reality of it. So I would be the last person to denigrate the provisions of that Constitution.

I want to agree with the Minister to this extent—neither is there an implication in what we are saying here that there is no respect at all for the rule of law within the United Kingdom. Far from it. No one has ever suggested that. The Minister raises that as if that argument was presented from this side of the House and then proceeds to knock it. Will the Minister please defeat the arguments that are presented to him? No one here has said that there is no respect for law in the United Kingdom. Of course, there is. No one has said that the citizen in the United Kingdom cannot vindicate his rights in the courts of the United Kingdom. Of course, he can. What we are saying is that, of course, he can. Let us be clear on that. Let no one have any doubts either but that we are as fiercely concerned as we must be—I think this was said from the very start, on the Second Stage—to ensure what this Bill would hope to do, namely, eliminate terrorist activities and ensure the proper application of the law to those charged with those activities so that we could work together in harmony and peace. We are as determined as anyone is to achieve that and the Minister can have our full support in that. We are not engaged in an obstructionist activity here for the sake of protecting people who should be amenable.

Our amendment, unfortunately, was not accepted and we are prepared to try to make this work the best way it can. I want to clear those misconceptions out of the way because there are some implications, an implication even this morning in one of the newspapers—I am not saying it directly implied but it seemed to—that we here are trying to protect the men of violence in some way or another. Nothing is further from the truth but we are not going to see the rule of law in any way jeopardised by what we are going to do in this House.

Having cleared away some of those misconceptions, I want to say that I have mentioned three points already: (1) this convention that the Minister says does not apply; (2) I asked him to tell me precisely what he means by the confusion that will arise if we incorporate this and (3)—I come back to this now—reciprocity. The Minister has not dealt with that to my knowledge in any of his replies on this. We have mentioned it. Each time I have spoken on this I have said that this amendment by us is on the basis that there would be a similar amendment contained in the legislation within the United Kingdom. The Minister says that, in fact, the whole kernel of the operation of this legislation is that there will be reciprocal arrangements.

Mr. Cooney

Deputy O'Kennedy was not here when I dealt with that.

Mr. O'Kennedy

I am sorry. I inquired when I came in if the Minister had dealt with that—not, apparently with the precise points that I had raised. If the Minister says that he did, I accept that.

Mr. Cooney

I will deal with it again, with the indulgence of the Chair.

Mr. O'Kennedy

Good. That is fine. I can leave it at that for the moment.

I want to make one thing clear. The Minister talked in terms of rights. There is a little touch of irony about this, that he said what he did this morning in the presence of that great defender of rights, who has lain on the streets in New York to defend fundamental rights, the Minister for Posts and Telegraphs, who has earned an international reputation for himself as being concerned and sympathetic about rights. I thought there was a little touch of irony when he sat beside the Minister for Justice this morning when that Minister talked about the rights we were conferring in this Bill. A fundamental right of every accused man is the right to be present at his own trial.

Mr. Cooney

Of course.

Mr. O'Kennedy

We are not conferring that on him. The Minister talked in terms of rights he was conferring in this Bill. He is not conferring that right. He has that anyway. Every constitution that has any provisions in relation to that anywhere in the world must have that there of necessity and the conventions of Europe incorporate that. Nonetheless, the Minister comes in and implies that we are giving that right in this Bill and when you give rights it is only when those rights, as he says, are infringed that you can make a complaint. That right is there always. In this Bill we are very definitely limiting and qualifying that fundamental right because we are saying to him, "Yes, you can exercise your fundamental right but in this case, as in no other case, to do it you must surrender yourself into custody."

How, in the name of any kind of reason, can the Minister suggest that that is conferring a right when I think he has now acknowledged that that absolute right is there in any event? I should like to have the Minister's comments on this when I am finished. The absolute right is there and the constitutional lawyer beside the Minister would agree with that 100 per cent. If that absolute right is being qualified or limited in this Bill, which it is, how does the Minister say he is conferring a right? I should like to know that.

Terminology sometimes is very important and what we are concerned about is: in the limitation of that absolute right that is there, which is in every constitution that has written details or in any convention that is directed in that area, what strict legal or constitutional guarantees does our Minister rely on? We cannot see them. We do not see them anywhere. That is why we are trying to incorporate this amendment.

The Minister has come again and simply said that if it breaks down, if there is a breach, we will not operate it. That is not the way the law must operate. The constitutional lawyer beside the Minister now must be sensitive to, almost offended by, that kind of argument. If the law were to be introduced on the basis that if it does not work we will not go ahead with it, it would be a very strange basis for law indeed. As I said last night, our Constitution absolutely obliges us to vindicate the personal rights of the citizens in any law that we pass. We must defend them. That means that we must reserve here in our legislation, in so far as we can, the obligation that is imposed on us in the Constitution. We cannot simply stand back and say, if it works, fair enough and if it does not work, we stop operating it. That is the basis on which we are introducing this.

I have raised four points. The Minister says he has replied to one of them already. I should like him to deal with each of them. When he does, we may perhaps be able to reach some consensus on the basis that we all want the same conclusion but we cannot allow that this could be done by our qualifying or limiting the fundamental rights of any individual, particularly by transferring him to a custody over which we would have no control, in respect of which we cannot give any direction or have any immediate supervision.

Mr. Cooney

I raised this question of the European Convention on Mutual Assistance in Criminal Matters in the course of making the argument that evidence on commission in criminal matters is provided for in Europe and that it is not a strange thing within the civil law countries as it is in common law countries. It was in that context that I raised the argument. Deputy O'Kennedy says that I am misleading the House and that I attempted to mislead the House. What I said was and the point I raised was that this European Convention provides for the taking of evidence on commission in criminal matters. That is not misleading the House.

Mr. O'Kennedy

The Minister went further than that.

Mr. Cooney

No.

Mr. O'Kennedy

Now that you have been found out——

Mr. Cooney

No question of it. I am afraid the matter went above Deputy O'Kennedy's head because, as he says honestly himself, he did not have the convention before him. I raised it in that context, that this question of evidence on commission is a normal thing in civil law countries.

Mr. O'Kennedy

As far as I can recall when I intervened this morning —at present we are both working from recollection—the Minister definitely implied that what we were doing in this Bill had precedent in the convention, that there was nothing new about it.

Mr. Cooney

I was talking about evidence on commission and I still say that.

Mr. O'Kennedy

What about the man being transferred?

Mr. Cooney

I raised the convention on mutual assistance in the context of the taking of evidence on commission and that is what has precedence.

Mr. O'Kennedy

There is a lot more in this than the taking of evidence on commission and the Minister knows it.

Mr. Cooney

Now that the argument is doubling back on Deputy O'Kennedy he is trying to expand what I was saying.

Mr. O'Kennedy

It is not doubling back. Evidence on commission is not the objectionable thing in this and the Minister knows that. The Minister is being less than frank.

Mr. Cooney

I deny that absolutely. I was making the case, and I make it again, that the provisions for evidence on commission in criminal matters is not an unknown procedure in civil law countries of Europe and I referred to the existence of a convention for mutual assistance in criminal matters to sustain any argument that it is a common procedure.

Mr. O'Kennedy

I presume the Minister will now acknowledge that the transfer in custody of a person to another jurisdiction is not known in any convention or any law?

Mr. Cooney

Deputy O'Kennedy has attributed to me an argument which I did not make.

Mr. O'Kennedy

The Minister's argument is totally irrelevant.

Mr. Cooney

If the Deputy did not understand my argument he should not criticise it and he should not accuse me of saying something I did not say. I made the argument that there is ample precedent in European law for evidence on commission in criminal matters and I gather from what Deputy O'Kennedy has now said that he admits the validity of that argument.

Mr. O'Kennedy

If we were only concerned with evidence on commission in this Bill we would not be arguing about it at all. We are concerned about the accused being transferred in custody.

Mr. Cooney

If Deputy O'Kennedy has no objection to evidence on commission in criminal trials, does he object to a provision ensuring that an accused be present, or would be rather that the evidence on commission be taken in the absence of the accused? It is in ease of the accused that we are providing that he be present with immunity. It is wrong of Deputy O'Kennedy to accuse me of misleading; but may be it is not wrong, because he did not understand what the argument was. My argument was that there is ample precedent for evidence on commission in criminal trials and that apparently is now conceded by Deputy O'Kennedy.

Mr. O'Kennedy

The Minister has been found out.

Mr. Cooney

That is conceded by Deputy O'Kennedy who is now going to say that there is no precedent for accused persons to go in custody to another jurisdiction for the hearing of evidence on commission in criminal trials. I did not say that the convention was a precedent for that and I have no doubt that the record will vindicate me in that regard. It is in ease of an accused that there would be provision for him to go because if that provision is not made, and it is conceded by Deputy O'Kennedy that evidence on commission is a normal enough thing, we would then have a situation of evidence on commission being taken in the absence of the accused with no provision for his attendance. I submit that the provision in this Bill which gives the accused the right to go North, with all the immunities that are guaranteed to him, is in ease of the accused's position and that that maintains his rights to a fair trial.

Deputy O'Kennedy raised the point that I alleged that there would be confusion. I cannot bring the matter any further than to make a self-evident proposition, that every piece of legislation is subject to the Constitution. It does not have to recite that it is subject to the Constitution and that it gives all the rights given in the Constitution. Automatically every Bill is subject to the Constitution and, likewise, all our law is subject to the European Convention on Human Rights because we have ratified it. It does not add to the position of any citizen with regard to his rights under either of those basic documents to note the existence of either or both of those documents in a particular Act of Parliament. Every Act of Parliament has to be constitutional; otherwise it falls. I submit that this Bill when it becomes an Act will stand a constitutional test and to engage in this business of writing into a Bill something which is already law must surely lead to confusion and is a self-evident proposition.

Mr. O'Kennedy

That was not my question. I asked the Minister to show me how in practice it would give rise to confusion. I mentioned that in practice at the moment one can have an action which incorporates a claim for infringement of criminal law rights, common law rights and statutory rights and I asked him to add a fourth for the rights guaranteed under the convention.

Mr. Cooney

There is no statute that will enact something that is already law and that is what the amendment is asking me to do.

Mr. O'Kennedy

The statute would be more precise.

Mr. Cooney

Deputy O'Kennedy said one of the reasons the Opposition were pressing this amendment was in the hope that if it was accepted and the Bill incorporated the European Convention of Human Rights the British would be forced to introduce a reciprocal measure. However, I should like to make the point that the availability of this convention does not depend on it being written into a particular Act of Parliament; it is already available within our jurisdiction for our citizens and within the United Kingdom jurisdiction for UK citizens. Any UK citizen complaining of a breach of the convention has his remedy to go to Strasbourg, just as our citizens have.

Mr. O'Kennedy

Can he sue through the British courts?

Mr. Cooney

His position is not improved in any way by writing it into a particular Bill. Even more important is the fact that, because it is already part of the UK law by virtue of the UK ratification of it and is part of our law, the UK can complain against us in Strasbourg and we can complain against the UK. The position with regard to individual citizens or international relations is not improved or enhanced by this amendment. The amendment is well intentioned but it it only window dressing.

Mr. O'Kennedy

I hope the Minister is not serious when he says our amendment is only window dressing. There is a little more than that to it. We will be dealing with this until such time as the Minister decides to pull down the blinds and then it will become law. That law will be applied to numerous people for a number of years and for that reason we have an obligation to tease this Bill out and point out the inconsistencies and weaknesses. That is what we are engaged in. It would be more convenient for us to pack it up at this stage and have a vote, but we would not be discharging our obligations if we did that. If the Minister's reference to the UK was his answer to my question about reciprocity, it was not an answer. The Minister said it would make no difference because at present a UK citizen can still go to Strasbourg. Under our proposals the rights of the convention would be capable of being sued on in the courts of the UK or of our own jurisdiction. That is the difference. If the Minister is suggesting that that makes no difference to the present position he is flying in the face of reality. It makes a great difference. We are not basing our case on saying that we are holier than the UK generally, that our laws are better or that we have a higher regard for the criminal law, although there are grounds for concern about the administration of justice in Northern Ireland. We are saying that these rights must be secured here and in the North. There is nothing in this legislation to provide for that and the Minister is flying in the face of reality when he says it would make no difference. Of course it would.

Secondly, we based our reason for ratifying this convention as an international guarantee on a very clear principle, that if we transferred people out of our jurisdiction to another over which we would have no constitutional or legislative control, the only way each jurisdiction could guarantee a standard by which both of us would be bound would be through the European Convention to which we would both adhere, thereby introducing a standard and an authority which would be imposed on procedures under our legislation.

This whole exercise is so new that we cannot transfer people to this other jurisdiction and say: "We hope everything will work out and if it does not we will discontinue the application of the legislation". This is not the way to approach law. We are now about to mingle or to merge with authorities in a jurisdiction over which we have no control —the police forces and courts of Northern Ireland—and at least we must ensure that a standard will be adhered to, in this case a very acceptable commendable standard, which will give us and the UK some guarantee of control rather than the very hazy and totally unconstitutional attitude which the Minister has presented to us: that if it is not worked fairly we will discontinue it. That is not the constitutional guarantee which states that we must write into legislation guarantees for the rights of our citizens.

The third point is that we must have regard to history, past and present. The Minister has acknowledged that the UK have not ratified the Convention on Mutual Assistance in Criminal Matters. That emerged only a few minutes ago. They have no reluctance at all to become involved in reciprocal legislation with us, which incidentally does not guarantee the same protection and rights as the convention to which the Minister referred. There is a strange contradiction in this. Although we are not adopting a holier than thou attitude to the British and their courts, a Fianna Fáil Government laid a complaint against them, which this Government inherited, for inhuman treatment and torture of people in custody in Northern Ireland. We believe the Government have received a summary of the findings of that court and we believe they vindicate our complaints, that the court has found there was inhuman treatment and torture of a terrifying nature.

That has happened in the recent past, part of the unfortunate contemporary history of these islands, and the Minister is asking us to close our eyes to all of this and he has more or less implied that that kind of thing cannot happen because the people to whom we will be entrusting the men who will be going North and to whom they will be surrendering themselves have a totally clean record. That should be the position if we are to administer this law as the Minister said we should—the security forces there should be fiercely concerned with justice and should be seen to be so. I do not think any police force there could measure up to those standards.

Perhaps there are many policemen, may be the vast majority of them, who are concerned with fair play and justice. We want to see them operate to guarantee the protection of citizens in custody. We have not seen it from the Devanney days right through the torture period. We know there are elements within the RUC who will not guarantee such protection and the Minister cannot ask us to turn our backs on that.

We have asked him if there is any guarantee that structures and disciplines have been changed, and of course he cannot guarantee that. That is why we want built into this legislation these fundamental guarantees in the convention. It is not asking for anything more than we should demand. It would be different if we were entering into reciprocal legislation of this nature with Holland or Germany because we have no reason to apprehend from recent history——

Mr. Cooney

Belgium, France.

Mr. O'Kennedy

We have no cause for complaint. We would be glad to co-operate with such jurisdictions but we know that much of the trouble and unrest in Northern Ireland in the past, indeed the breaking point for the minority, has been caused by the lack of the disciplines to which I have referred. We want to see those days gone and the Minister is being less than realistic when he implies they have gone. The Minister has not satisfied me that he is relying in any relevant way on any other convention of Europe because if this legislation only referred to evidence and conditions in criminal trials we would not be arguing this at all. The whole crux of this argument is that a man must surrender himself in custody for the hearing of evidence against him. I assume the Minister was referring to a precedent for this. I think I was right in my assumption.

When the Minister found out that we had discovered he was wrong he backtracked and said that it only referred to taking evidence on commission. If that is the Minister's argument, then it is totally irrelevant or next to it. We are concerned with more fundamental issues and the Minister's introducing that convention as an argument in his defence certainly misled me. That is all I shall say.

Mr. Cooney

On the question of reciprocity, Deputy O'Kennedy says the need for this is evidenced by the fact that we had to make a complaint in regard to certain actions committed on detained persons by the security forces in Northern Ireland. First of all, the acts complained of occurred over five years ago. The people have been compensated in the ordinary courts and the convention is the reason why compensation has been paid and redress got. The convention has been found adequate and sufficient to provide the protections now being advanced by the Opposition as the reason why this amendment should be incorporated in this legislation. Protection already exists in both jurisdictions and it has been proved to be adequate by virtue of what has actually happened.

Mr. Haughey

Is the Minister referring to the convention now?

Mr. Cooney

To the convention, yes. It has enabled redress to be obtained in an international tribunal.

Mr. Haughey

Does the Minister admit it is a long, tortuous, expensive procedure?

Mr. Cooney

Yes, but as far as the individuals whose rights were infringed are concerned they have all been compensated in the domestic court by awards of damages of substantial amounts against the Government concerned. That is what counts where the individual is concerned and not so much the theoretical findings of an international tribunal. That may be an international sanction to force a positive remedy in the State concerned.

Mr. Haughey

Almost certainly so.

Mr. Cooney

That is why I say the existence of the convention and the procedures available have proved adequate to protect those who needed this protection. It is a bit pointless to say that because something happened five years ago we should now introduce this convention into our domestic law. The fact is the convention already operates as part of the domestic law of both jurisdictions and that has proved an adequate protection.

On the question of the commission, I did not argue, as Deputy O'Kennedy seemed to imply, that the Convention on Mutual Assistance in Criminal Matters provided for the transfer of an accused in custody. I said it was a provision and precedent for taking evidence on commission in criminal matters. Deputy Blaney argued that witnesses should not be too cowardly to come down here and give their evidence in the actual courts and it was in that context I made the argument that there were precedents for the taking of evidence on commission in criminal matters and I pointed to this convention as the precedent and I was accused of misleading the House. I deny that accusation absolutely. I did not make that argument.

Mr. O'Kennedy

Whether or not the Minister intended to, he certainly misled us.

Mr. Cooney

I have no control over Deputy O'Kennedy's capacity to listen.

Mr. O'Kennedy

I said that to let the Minister off the hook.

Mr. Cooney

I am not on the hook.

Mr. G. Collins

With all due respect we have tried very hard to get the Minister to see our point of view. Unfortunately his attitude on this amendment has not been any different from his attitude on the first amendment, to which a time limit, as it were, applied. We have made the best case we can and with as much authority as possible to show there is need for this amendment. The Minister was the only spokesman on the Government benches and he refused to accept this amendment. I do not think his arguments for refusing stand up. On a number of occasions he has deliberately dragged a red herring across the trail. More than once he sought the ruling of the Chair whether or not a matter was sub judice and could not therefore be discussed. That arose last week on a question tabled by the leader of my party to find out when the report in the case Ireland versus the United Kingdom would be available to the Government.

The Minister says that on the highest authority and advice available to him he believes the Bill is constitutional. That is his opinion. Its constitutionality can be decided in another place. The Minister dismissed our amendment on the ground that, so long as the Bill is constitutional, there is no need for the European Convention on Human Rights. It was pointed out that the Constitution lays down principles. If the Constitution is everything, is there any need for a convention? The Minister is now in an impossible situation because of having refused to accept our amendment. The main case for our amendment is based, first of all, on reciprocity. If it is in our Bill, then the British must also have it in their Bill.

Secondly, this amendment would allow a citizen to bring an action in our courts for an infringement of the rights specified in the convention. The Minister's argument is that there is an international tribunal for hearing grievances and getting compensation. This is a very thin argument. We know the length of time it takes for a case to be processed.

Mr. Cooney

The aggrieved parties to whom I referred had their compensation paid years ago.

Mr. G. Collins

The Minister will agree the time involved can be very considerable. There is another very solid argument for our amendment. This is the first time we in the Republic have accepted so-called guarantees from another jurisdiction. These so-called guarantees are now the foundation of this legislation. It is only natural that we set about looking for the minimum standards—I stress minimum standards—under the convention to protect our citizens. I believe the amendment can be justified.

Looking to the background to the European Convention on Human Rights and our own role on it, we were always to the forefront in adhering to the principles and standards of the Council of Europe and we were proud to be initiators with regard to fundamental rights and freedoms. We were the first country to permit a case to be taken. We have a definite responsibility to extend where possible the application of the convention to countries that may not have adopted it to the same extent as we have. As has been pointed out in this debate, we are one of nine countries who have adopted and ratified without reservation all the conventions and protocols of the Council of Europe.

Our amendment would ensure that we would extract on a reciprocal basis a similar arrangement or commitment from the British Government that they would incorporate it into their law. We should give the lead in connection with human rights, particularly when there are fundamental matters involved in our legislation. Article 2, protocol 4 of the convention has been quoted and I will not repeat it. In addition, articles 5 and 6 of the convention have been quoted and discussed. Basically what we are trying to get across to the House, the Government and the Minister—it appears in vain—is that what we are seeking are minimum standards so far as the European Convention on Human rights is concerned.

When we are taking responsibility for what is done elsewhere, over which we have no control, the very least we can do is to introduce for those who will be subjected to the procedures the guarantees of the convention so far as the protection of human rights and fundamental freedoms are concerned. This should be basic to a proposal of this kind.

As has been pointed out repeatedly, everyone has the right to liberty and security of person. It appears to us that section 11 of the Bill is not in conformity with article 5 of the European Convention on Human Rights. In order to exercise the rights guaranteed to an individual he has to surrender himself into custody and this deprives a person of liberty. To my mind it is in contravention of the convention. Article 6 of the convention says that in the determination of civil rights and obligations or of any criminal charge against a person, he is entitled to a fair public hearing. We must ask the question: is it fair if the man is not present at the hearing when evidence is given against him? In order to exercise the rights which the person is meant to be guaranteed he must surrender himself into custody and thus deprive himself of the liberty guaranteed under the convention.

I believe the provisions of the convention have been thwarted both in the spirit and in the letter by the provisions of the Bill. The Minister and his party realise this and they are prepared to live with it. If the person involved has to deprive himself of one of the rights and exercises another right in a very limited way, it is obvious that this Bill takes no account of the provisions of the convention. I honestly believe this to be the position but evidently the Minister does not accept the argument.

We made the point that the convention recognises the need for emergency legislation. I said that in my opening remarks on the amendment. However, the convention also states that minimum standards are required, and that is all we want. The Offences Against the State Act was found to be in accordance with the principles and minimum rights of the convention. Now we have new and novel legislation, operating in a different area altogether, and there is more reason than ever before for minimum standards to be laid down. This is the first time in the history of this State that we have involved ourselves in the administration of justice and the implementation of law in another jurisdiction over which we have no control——

Mr. Cooney

We have not.

Mr. G. Collins

The Minister may hold that view but in these circumstances we cannot depend on the very loose guarantees, the like of which the Minister gave during the course of this debate while trying in vain to please members of the Labour Party who, seemingly, are in revolt against this legislation. These guarantees were unacceptable to members of his own political grouping which form the Government and they are not acceptable to my party.

The performance to date of the police force in the Six Counties can only lead to distrust and apprehension because of the way they have acted. The SDLP have refused to give acceptance to the RUC. We consider proper our standards with regard to such matters as bail, arrest without warrant and conditions of custody. Seemingly the standards employed in the Six Counties are different. If both jurisdictions are to work together, why not have a uniform standard? The European Convention on Human Rights is the proper basis on which to introduce this uniformity. We differ in our standards and procedures from those in the Six Counties and, because of this, we need to have standards co-ordinated and related more directly to the most desirable international standards. I am referring to the convention, which we helped bring into being and of which we are proud to be founder members.

Our proposals guarantee minimum rights and no more than that. The attitude of the Minister and Government is regrettable. They are refusing to accept this amendment. To say the least, it makes a mockery of the European Convention on Human Rights, which has been ignored and put aside. I realise the practical political reality of the situation is that the Minister has the manpower to vote down the amendment. We have tried in a fair, honest and sincere way to convince him that our amendment could only improve the situation because it would lead to the minimum standards which everyone would like to see. The Minister has the opportunity now of accepting or voting down our amendment.

Mr. Haughey

Before the Minister replies I should like to ask a question which he might deal with in his reply. It is a question of some significance. In the case of an accused person travelling to the North of Ireland under the provisions of the Bill for the purpose of being present at the taking of evidence on commission, in the event of his being maltreated or interfered with in any way which would give rise to a claim for compensation, what would be the procedure whereby that claim could be instituted and against whom could it be instituted?

Mr. Cooney

The action would lie at the suit of the injured party against the authorities where the ill-treatment took place. If it happened in Northern Ireland it would like against the Government of the United Kingdom and it would be on all-fours with the actions that have been successfully taken in that regard.

Mr. Haughey

Would the Minister contend that this State would have no responsibility in view of the fact that it was under their jurisdiction?

Mr. Cooney

The State would have no direct responsibility because it could not intervene in what would be an internal matter in another jurisdiction. However, the State would have a great moral standing to ensure that the action would not be impeded and I would be very surprised if that action went to a hearing, because the actions which have already taken place have been settled consequent on the complaint to the European Court.

Mr. Haughey

What procedure does the Minister visualise the offending person would take?

Mr. Cooney

He would have an action for damages for false imprisonment or assault.

Mr. Haughey

An ordinary civil action?

Mr. Cooney

Yes.

Mr. O'Kennedy

In the British courts?

Mr. Cooney

Yes.

Mr. O'Kennedy

There could be criminal proceedings in the British courts?

Mr. Cooney

Yes. He could make a complaint to the appropriate authority, the Director of Public Prosecutions, alleging the criminal offence. There could be criminal proceedings as well and this Government could also make a complaint to the international tribunal.

Mr. O'Kennedy

The only avenue open to a resident citizen of this jurisdiction would be to bring an action in the British courts or to make a complaint which would be the basis of criminal proceedings. He could not turn to his own courts to vindicate himself.

Mr. Cooney

Deputy O'Kennedy says that this is the only action open to him. The best action available to him is to be able to proceed in the courts of the jurisdiction where he has sustained his loss. That is the proper venue for him to obtain redress. He could not take an action in the courts here for something which happened in another jurisdiction. There would be no defendant; there would be nobody to sue. He would have to sue in the courts having jurisdiction over the defendant so that if the courts gave him a decree it could be enforced against that defendant. With respect, it is inconceivable that one could even contemplate that such a person would have an action in the courts here. I would be satisfied that his action would be well founded in those courts depending on the strength of the complaint he could make and that would be behind that action. This Government and this State would be the moral authority to ensure that his action would take place. If it were well founded I am confident that it would be settled because it would be open to this State to lay a complaint for breach of the European Convention on Human Rights.

We have debated this amendment for up to five hours, one might say an entire Dáil sitting day, with the exception of Question Time and Private Members' time, the normal time available for public business. We have gone round in circles. The arguments have been put forward and answered. I have not convinced the Opposition. I would be surprised if I had. They have not convinced me and I am sure they would be equally surprised if they had. I am satisfied that the rights which worry the Opposition are fully protected in the legislation concerned. They are provided by our Constitution. They are provided by the fact that this country and the UK have ratified this convention. The proof is that, where there were infringements of those rights, compensation and redress have been paid in full. I move that the question be put.

Mr. G. Collins

The Minister does not have to show any muscle of that nature.

Mr. Cooney

I am pleased at that, but I thought it could have gone on and on.

Mr. G. Collins

The Minister will be here for a very long time. We believe in co-operation and we are prepared to give the Minister that, but he will not drag it from us.

Amendment put.

The Committee divided: Tá, 65; Níl, 66.

Tá

• Allen, Lorcan.
• Barrett, Sylvester.
• Blaney, Neil T.
• Brady, Philip A.
• Brennan, Joseph.
• Breslin, Cormac.
• Briscoe, Ben.
• Brosnan, Seán.
• Brugha, Ruairí.
• Burke, Raphael P.
• Callanan, John.
• Calleary, Seán.
• Carter, Frank.
• Colley, George.
• Collins, Gerard.
• Geoghegan-Quinn, Máire.
• Gibbons, Hugh.
• Gibbons, James.
• Gogan, Richard P.
• Haughey, Charles.
• Healy, Augustine A.
• Herbert, Michael.
• Hussey, Thomas.
• Kenneally, William.
• Kitt, Michael P.
• Lalor, Patrick J.
• Lemass, Noel T.
• Leonard, James.
• Loughnane, William.
• Lynch, Celia.
• Lynch, Jack.
• McEllistrim, Thomas.
• MacSharry, Ray.
• Connolly, Gerard.
• Crinion, Brendan.
• Cronin, Jerry.
• Cunningham, Liam.
• Daly, Brendan.
• Davern, Noel.
• de Valera, Vivion.
• Dowling, Joe.
• Fahey, Jackie.
• Farrell, Joseph.
• Fitzgerald, Gene.
• Fitzpatrick, Tom. (Dublin Central).
• Flanagan, Seán.
• French, Seán.
• Gallagher, Denis.
• Meaney, Tom.
• Molloy, Robert.
• Moore, Seán.
• Murphy, Ciarán.
• Nolan, Thomas.
• Noonan, Michael.
• O'Connor, Timothy.
• O'Kennedy, Michael.
• O'Leary, John.
• O'Malley, Desmond.
• Power, Patrick.
• Smith, Patrick.
• Timmons, Eugene.
• Tunney, Jim.
• Walsh, Seán.
• Wilson, John P.
• Wyse, Pearse.

Níl

• Barry, Richard.
• Begley, Michael.
• Belton, Luke.
• Belton, Paddy.
• Bermingham, Joseph.
• Bruton, John.
• Burke, Dick.
• Burke, Joan T.
• Burke, Liam.
• Byrne, Hugh.
• Clinton, Mark A.
• Cluskey, Frank.
• Conlan, John F.
• Coogan, Fintan.
• Cooney, Patrick M.
• Corish, Brendan.
• Cosgrave, Liam.
• Costello, Declan.
• Coughlan, Stephen.
• Creed, Donal.
• Crotty, Kieran.
• Cruise-O'Brien, Conor.
• Desmond, Barry.
• Desmond, Eileen.
• Dockrell, Maurice.
• Donegan, Patrick S.
• Donnellan, John.
• Enright, Thomas.
• Esmonde, John G.
• Finn, Martin.
• FitzGerald, Garret.
• Fitzpatrick, Tom. (Cavan).
• Flanagan, Oliver J.
• Gilhawley, Eugene.
• Governey, Desmond.
• Griffin, Brendan.
• Harte, Patrick D.
• Hegarty, Patrick.
• Hogan-O'Higgins, Brigid.
• Jones, Denis F.
• Kavanagh, Liam.
• Keating, Justin.
• Kelly, John.
• Kenny, Enda.
• Kyne, Thomas A.
• L'Estrange, Gerald.
• Lynch, Gerard.
• McDonald, Charles B.
• McLaughlin, Joseph.
• McMahon, Larry.
• Malone, Patrick.
• Murphy, Michael P.
• O'Brien, Fergus.
• O'Donnell, Tom.
• O'Leary, Michael.
• O'Sullivan, John L.
• Pattison, Seamus.
• Reynolds, Patrick J.
• Ryan, John J.
• Spring, Dan.
• Staunton, Myles.
• Taylor, Frank.
• Timmins, Godfrey.
• Toal, Brendan.
• Tully, James.
• White, James.

Tellers: Tá: Deputies Lalor and Healy; Níl: Deputies Kelly and B. Desmond.

Question declared lost.

NEW SECTION.

Mr. G. Collins

I move amendment No. 3:

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

"Reference in this Act to the taking of evidence in Northern Ireland for criminal trial in the State, the taking of evidence in the State for criminal trial in Northern Ireland, custody for the purposes of this Act and arrest without warrant shall be construed in conformity with the Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto."

Question put: "That the new section be there inserted."

The Committee divided: Tá, 65; Níl, 66.

Tá

• Allen, Lorcan.
• Barrett, Sylvester.
• Blaney, Neil T.
• Brady, Philip A.
• Brennan, Joseph.
• Breslin, Cormac.
• Briscoe, Ben.
• Brosnan, Seán.
• Brugha, Ruairí.
• Burke, Raphael P.
• Callanan, John.
• Calleary, Seán.
• Carter, Frank.
• Colley, George.
• Collins, Gerard.
• Connolly, Gerard.
• Crinion, Brendan.
• Cronin, Jerry.
• Cunningham, Liam.
• Daly, Brendan.
• Davern, Noel.
• de Valera, Vivion.
• Dowling, Joe.
• Fahey, Jackie.
• Farrell, Joseph.
• Fitzgerald, Gene.
• Fitzpatrick, Tom. (Dublin Central).
• Flanagan, Seán.
• French, Seán.
• Gallagher, Denis.
• Geoghegan-Quinn, Máire.
• Gibbons, Hugh.
• Gibbons, James.
• Gogan, Richard P.
• Haughey, Charles.
• Healy, Augustine A.
• Herbert, Michael.
• Hussey, Thomas.
• Kenneally, William.
• Kitt, Michael P.
• Lalor, Patrick J.
• Lemass, Noel T.
• Leonard, James.
• Loughnane, William.
• Lynch, Celia.
• Lynch, Jack.
• McEllistrim, Thomas.
• MacSharry, Ray.
• Meaney, Tom.
• Molloy, Robert.
• Moore, Seán.
• Murphy, Ciarán.
• Nolan, Thomas.
• Noonan, Michael.
• O'Connor, Timothy.
• O'Kennedy, Michael.
• O'Leary, John.
• O'Malley, Desmond.
• Power, Patrick.
• Smith, Patrick.
• Timmons, Eugene.
• Tunney, Jim.
• Walsh, Seán.
• Wilson, John P.
• Wyse, Pearse.

Níl

• Barry, Richard.
• Begley, Michael.
• Belton, Luke.
• Belton, Paddy.
• Bermingham, Joseph.
• Bruton, John.
• Burke, Dick.
• Burke, Joan T.
• Burke, Liam.
• Byrne, Hugh.
• Clinton, Mark A.
• Cluskey, Frank.
• Conlan, John F.
• Coogan, Fintan.
• Cooney, Patrick M.
• Corish, Brendan.
• Cosgrave, Liam.
• Costello, Declan.
• Coughlan, Stephen.
• Creed, Donal.
• Crotty, Kieran.
• Cruise-O'Brien, Conor.
• Desmond, Barry.
• Desmond, Eileen.
• Dockrell, Maurice.
• Donegan, Patrick S.
• Donnellan, John.
• Enright, Thomas.
• Esmonde, John G.
• Finn, Martin.
• FitzGerald, Garret.
• Fitzpatrick, Tom. (Cavan).
• Flanagan, Oliver J.
• Gilhawley, Eugene.
• Governey, Desmond.
• Griffin, Brendan.
• Harte, Patrick D.
• Hegarty, Patrick.
• Hogan-O'Higgins, Brigid.
• Jones, Denis F.
• Kavanagh, Liam.
• Keating, Justin.
• Kelly, John.
• Kenny, Enda.
• Kyne, Thomas A.
• L'Estrange, Gerald.
• Lynch, Gerard.
• McDonald, Charles B.
• McLaughlin, Joseph.
• McMahon, Larry.
• Malone, Patrick.
• Murphy, Michael P.
• O'Brien, Fergus.
• O'Donnell, Tom.
• O'Leary, Michael.
• O'Sullivan, John L.
• Pattison, Seamus.
• Reynolds, Patrick J.
• Ryan, John J.
• Spring, Dan.
• Staunton, Myles.
• Taylor, Frank.
• Timmins, Godfrey.
• Toal, Brendan.
• Tully, James.
• White, James.

Tellers: Tá, Deputies Lalor and Healy; Níl, Deputies Kelly and B. Desmond.

Amendment declared lost.

SECTION 2.

Question proposed: "That section 2 stand part of the Bill."

Mr. O'Malley

This is the first major section in this Bill. It is a very lengthy one with nine rather complicated subsections in it. It deals in general with the commission of offences in Northern Ireland. The first point I would like to make on the section as a whole is to refer once again to the judgment of Mr. Justice McMahon in the Foyle Fisheries case, which was delivered towards the end of November last and in which he makes a number of decisions about the power of the Oireachtas to enact law in respect of areas over which it does not at the moment hold jurisdiction.

I raised this in general terms on the Second Stage of this Bill. I asked the Minister to consider the implications of that judgment. As far as I can ascertain, in his reply he did not do so except in a very general way. I do not think he dealt with the details of it, and I think it should be considered now again on this section, to which it is appropriate.

It seems very doubtful on the strength of that judgment and on the basis of the generally accepted canons of international law whether or not this or any other State can enact extra-territorial legislation in respect of offences or crimes committed outside its own jurisdiction unless the people who are to be made subject to that extra-territorial legislation are, in fact, citizens of the country enacting it.

I gave the relevant quotations from Mr. Justice McMahon's judgment in relation to that, and it did seem from that that he was indicating that the power of the Oireachtas to enact extra-territorial legislation was confined so far as prosecuting people was concerned to those who were citizens of Ireland or who were resident within the jurisdiction here. If this were not so you would have a situation that could become quite farcical, that the Oireachtas here could purport to enact legislation in relation to offences committed, for example, by Japanese citizens in Japan. The Oireachtas could go through the motions of stating that if somebody did in Japan a certain act he would commit an offence against our law. There is absolutely no point in the Oireachtas stultifying itself in this way by making any such provision when it is perfectly evident that the Oireachtas is not going to be in a position to enforce a provision of that kind.

One wonders if in the example I have taken to make the doing of a certain act in Japan by a Japanese citizen an offence, whether, if that Japanese citizen subsequently turned up in Ireland, it would be right and proper that he should be prosecuted for that offence. It seems to me that it would be a matter that should be dealt with, in the example I have given, by the Japanese courts. I have deliberately chosen as an example a distant country in order to demonstrate the futility of trying to legislate in respect of people who are not our citizens, who are not normally subject to our law, in regard to acts they may commit outside the jurisdiction.

The Minister may say that Japan is a bit far-fetched and all the rest of it. The reason I give that example is to demonstrate that for any country or any part of a country which is not presently subject to the jurisdiction of the Oireachtas and the courts established under our jurisdiction, the argument is just the same. The fact that Northern Ireland is part of our island and a part of our national territory over which, pending the reintegration of the national territory, we do not currently exercise jurisdiction, does not make the argument any different to the argument in respect of Japan or any other distant country.

There was in the Foyle Fisheries Act, 1958, certain extra-territorial provisions and, as the House is aware, some of those provisions were declared invalid by the High Court in this case which was decided last November.

Mr. Cooney

On a technical point relating to a peace commissioner's jurisdiction and also on another point relating to the amending of regulations, not on any question of extra-territoriality.

Mr. O'Malley

The actual decision may be based on the points the Minister is referring to, but nonetheless there were various statements, which I quoted the last time, of Mr. Justice McMahon in that judgment in relation to the powers of the Oireachtas generally in regard to extra-territorial legislation. This section 2, which is, as I say, very lengthy and complicated, gives or purports to give, at any rate, extraordinary wide coverage to offences committed in Northern Ireland or attempted to be committed in Northern Ireland.

I should like to hear from the Minister in some detail whether he is satisfied that the generally accepted limitations on extra-territorial legislative power, both of this State and of states generally, are not infringed by the very wide-ranging provisions of this section, which go far beyond the provisions of an Act like the Foyle Fisheries Act, or any other Act we have had in which there is extra-territorial effect given to legislative provisions of this Parliament. We have had a very limited number of cases where the State purported to confer extra-territorial jurisdiction on our ports, mainly confined to matters such as hijacking of aeroplanes, incidents which of their very nature are international in form.

This section is not confined to specialised crimes of that kind. It extends to 13 different categories of crime as set out in the Schedule. Some of these are very wide provisions indeed, and this section should be considered carefully before we commit ourselves to it. The Minister should spell out the precise circumstances of our power to make and enforce extra-territorial legislation. It might be best if we went through each of these subsections separately, because they are all to some extent independent of one another. Each is a substantive provision in itself; I do not want to go through them now.

I would like to hear what the Minister has to say generally on the powers of extra-territorial legislation, but I think the Minister should bear in mind the recital of cases by Mr. Justice McMahon in that judgment where it was held that until the passage of the Statute of Westminster in 1931, Saorstat Éireann, established under the Constitution of 1922, had no power to make any extra-territorial legislation. Under the 1937 Constitution in this country the power of the Oireachtas to enact extra-territorial legislation is confined to whatever powers Saorstat Éireann had in this respect at the time that that Constitution lapsed in 1936. It is a technical matter, but it is likely to be challenged in the courts afterwards if and when this Bill is passed. I think it is appropriate that it should be considered in some detail here.

Mr. Cooney

This question of the power of a sovereign jurisdiction to legislate extra-territorially was one which was debated at length on the Second Stage in both Houses, and it was made clear beyond doubt that every sovereign nation has the right to legislate extra-territorially. There are many well-known principles which justify this, well-settled principles of international law. The concept of extra-territoriality is so well settled that to cast doubt on it now nearly defies hearing. It is well settled on a number of principles, the protective principle, the passive personality principle, the nationality principle and the universality principle. All these principles have been defined both judicially and by writers on the subject. Numerous examples of them can be given all over the world where nations, for the protection of territory or for the protection of their citizens, take powers to legislate extra territorially.

I do not want to repeat the speech I made in this House and in the Seanad on the Second Stage in which I dealt at considerable length and in great detail—so much so that I was criticised for making an unduly legal speech—on the concept of extra-territoriality. I dealt in great detail on the concept of extra-territoriality to show how well established and accepted it is as a principle in international law.

Mr. Haughey

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

Mr. Cooney

Well settled in international law.

Mr. Haughey

Unprecedented in common law countries.

Mr. Cooney

There are numerous examples of extra-territoriality in relation to specific matters. I grant you, that extra-territorial jurisdiction covering a wide range of offences is possibly unprecedented in common law countries. When one examines the Bill the offences in it are run-of-the-mill albeit serious criminal offences. The fact that it is unprecedented with regard to creating a number of extra-territorial offences in one Bill does not in my submission invalidate the principle that extra-territoriality is well settled. It so happens that the circumstances in which it has arisen up to now have required legislation only in specific areas such as piracy, hijacking of aircrafts and various specific crimes.

Here on this island we have a situation which has to be dealt with under the principles of international law and extra-territoriality. That situation demands that the crimes to be dealt with are not just these isolated international crimes but ordinary domestic run-of-the-mill crimes. The principles on which the taking of extra-territorial jurisdiction is founded are well known. The State is entitled to take this jurisdiction to protect itself or to protect its citizens. I think it is right that it should be so. It is also necessary to take it in order to preserve the comity of nations. These matters are so fundamental to international law and are so well settled that I do not think they require a debate at this stage.

Deputy O'Malley referred to Mr. Justice McMahon's judgment in the Devine case. I dealt with it when I was replying to the Second Reading debate. There is nothing in that judgment which supports the view that extra-territorial power can be taken only in respect of the acts of one's own citizens. Mr. Justice McMahon was considering the Foyle Fisheries Act of 1952. It provided that the provisions of the Act relating to offences applied to acts and omissions in any part of the Foyle area by a person resident in the State. That particular Act confined the extra-territorial offence to acts by a person residing in the State. That is not to say that because that particular Act was confined to persons resident in the State that all Acts taking extra-territorial jurisdiction are under similar constraint. I do not know what the policy reason was at the time, possibly because there was a reciprocating Act of the other jurisdiction and it was to deal with this narrow question of the Foyle area.

It was argued before Judge McMahon that the laws of Saorstát Éireann referred to in Article 3 of the Constitution meant the laws in force in Saorstát Éireann at the time of the enactment of the Constitution and since there was no legislation corresponding to the Act of 1952, that is, the Foyle Fisheries Act, that the Oireachtas had no power to give extra-territorial effect to the Act. In other words, it was sought to be relied on in front of the courts that the reference in Article 3 to the laws of Saorstát Éireann meant that there was no power under the 1937 Constitution to give extra-territorial jurisdiction unless it was already there in some law of Saorstát Éireann.

That argument was rejected and Judge McMahon at pages 5 to 6 said, and I quote:

In my opinion Article 3 of the Constitution in providing that the laws enacted by Parliament shall have the like extra-territorial effect as the laws of Saorstát Éireann means the like extra-territorial effect as the laws of Saorstát Éireann were capable of having.

Of course, under all principles of international law, the laws of Saorstát Éireann were capable of having whatever extra-territorial effect the Government or Parliament of the day chose to give them. The judgment refers to the fact that under Article 3 of the Constitution laws expressed to operate extra-territorially can bind those who are subjects of the State in regard to their conduct in Northern Ireland. That is what Judge McMahon held, that they could bind those who were subjects of the State.

Mr. O'Malley

That is the very nub of the point that I have been making. Judge McMahon went out of his way to use the words "those who are subjects of the State". On Second Reading I went into some detail as to who is or is not technically, under the Citizenship Act, a subject.

Mr. Cooney

If the Deputy will allow me to finish I will answer that point. I take the Deputy's point that he is relying on the judgment to state that extra-territorial legislation can apply only to subjects of the State. I am saying that this was not what the judgment said. If you like, the question of persons subject to the State arose because of the narrow wording of the Act. The specific Act which was at issue in that judgment, this Act which provided for an extra-territorial offence, provided also that its jurisdiction extra-territorially referred only to a person resident in the State. So, it was the Act that confined the extra-territoriality to the resident of the State, not the general principles of international law.

Mr. O'Malley

But——

Mr. Cooney

May I please finish what I am saying? The judge, as I say, referred to the fact that laws expressed to operate extra-territorially can bind those who are subjects of the State in regard to their conduct in Northern Ireland. He said that and that is so; it can bind those who are subjects of the State in regard to their conduct in Northern Ireland or, if we so wish, in regard to their conduct everywhere.

It is quite clear that the judge did not hold that there was no power to affect non-nationals because that was not an issue before him and it is well settled in international law that any legislature, any sovereign State, can pass extra-territorial laws binding not merely or affecting not merely its own citizens but non-nationals as well. That is well settled. The Deputy gave the extreme example of something happening in Japan but, if we wanted we could give an example of a terrorist in Japan bombing, say, Irish property or taking action against Irish citizens out there. It would be contrary to all principles of international law if we were incapable or did not have the power to pass a law to deal with such acts by a non-national inimical to our national interest. This is one of the principles of international law, which particular principle, whether it be the passive or the active personality principle I could not say, is well settled.

It is well settled in international law that a nation does have power to legislate extra-territorially not merely for its own subjects but also for non-nationals and it is on the theoretical basis that every sovereign State is entitled to take whatever action it pleases by its laws to protect itself, its territory, its citizens at home or abroad or its interests generally. The effectiveness of the extra-territorial legislation may be another matter. The effectiveness of taking power to deal with the extreme example raised by the Deputy is a separate issue and that is a matter that would have to be decided on as a matter of policy from time to time but there is no doubt that the power under international law to legislate extra-territorially not merely for one's own citizens but also for non-nationals is well settled.

Mr. Haughey

As Deputy O'Malley has pointed out, this is the key section in the legislation. Section 2 is the section from which the Bill derives all its force. It is a very complicated section and it is quite difficult to follow the implications of the different subsections in many respects but one thing does emerge very clearly from it, no matter to what extent one is able to comprehend its complexities, that is, that it is a pretty horrific piece of legislation and it is very, very far-reaching indeed in its effects and I want to raise one or two points of particular significance in regard to it.

Subsection (2) deals with where a person in the State or in Northern Ireland aids, abets, counsels or procures the commission of an offence under section 1 or section 3. Section 3 is the section which, in effect, makes it an offence to escape from custody in Northern Ireland. That is a section that most of us find particularly repulsive. One can listen to the Minister making strong arguments in regard to acts of violence, atrocities of one sort or another, but knowing what we do about the situation in the North of Ireland, the things that are done there by the authorities as well as by others, it is very difficult to accept that we here in this part of the country should make it an offence to escape from custody in the North of Ireland. I imagine the Minister will be quick to point out to me that escaping from custody would not be an offence where the person is detained because of an offence which is not within the scope of the Bill and also, of course—this is not as relevant as it was—escaping from internment is not an offence.

Mr. Cooney

It never applied to that.

Mr. Haughey

That is what I mean.

Mr. Cooney

It never was, even when there was internment.

Mr. Haughey

That is what I mean. I accept that. Now that internment is ended, it is not as relevant as it was. Even when there was internment, escaping from internment was not an offence. I want to direct the attention of the House, and the Minister to one aspect of this.

Mr. Cooney

On a point of order, in discussing subsection (2) (a) we are automatically discussing section 3 and I should like the House to include section 3 in the discussion at this stage. If we do not do so, there will certainly be repetition when we come to section 3.

Mr. Haughey

That is reasonable.

Mr. O'Malley

If we are to divide, I take it that the divisions would be separate?

Mr. Cooney

Yes.

Mr. Haughey

I have already indicated that section 3 makes it an offence for a person to escape from custody in Northern Ireland. I want to point out that in the terms of the Bill if a person aids, abets, counsels or procures the commission of an offence under section 3 he is guilty of an offence. In other words, if a person in the state of Northern Ireland aids, abets, counsels or procures a person to escape from custody he is guilty of an offence. Surely, that is stretching things a bit too far.

If a person from Northern Ireland is in custody and a Northern Ireland friend or relative suggests to him that he should escape—both are convinced of the injustice of his incarceration— and the Northern Ireland friend or relative, father, mother, brother or sister, does no more than suggest to the person in custody: "For Heaven's sake get out of this place if you possibly can" that person is committing an offence. In particular that would apply if the person in custody was being illtreated or subjected to any of the indignities about which we have heard so much.

Mr. Cooney

If that were to happen, it is possible it would not be lawful custody and there would be no offence then of escaping.

Mr. O'Malley

If he was being illtreated?

Mr. Cooney

Yes.

Mr. Haughey

I could not accept that. It is not difficult to visualise the sort of situation I am describing relating to a person in custody in Northern Ireland for a non-violent offence, an offence which need not necessarily be in any way associated with the sort of violence with which this Bill is primarily intended to deal. The Schedule to the Bill is such that there are all sorts of offences for "ordinary" crimes. We could have a situation where a person in custody in Northern Ireland for one of these "ordinary" crimes is being subjected to brutality or illtreatment and a relative or friend who would do no more than counsel him to escape from custody if possible would be guilty of an offence under the Bill.

I suggest that that is an impossible sort of provision for us to pass. Section 2 is so comprehensive and omnibus in its provisions that one could literally take any person in the North or South and put him into jail on the basis of those provisions. I feel I am in order in referring to the Schedule at this stage because section 2 is meaningless without the Schedule. That Schedule includes in its list of offences many things which are "normal" crimes which would be committed from time to time by different individuals if there was never a situation in the North of Ireland. In the normal way if a person commits one of these offences and comes into this jurisdiction in order to avoid prosecution for them the Northern Ireland authorities would be justified in instituting extradition proceedings. On the face of a number of these offences there is no political content and, therefore, it would be quite normal for whoever happens to be in power in Northern Ireland to undertake extradition proceedings in regard to any of these offences. The accused person, in order to defeat the extradition procedures would have to claim political motivation. In doing so he would have to disclose fully any defence he might have to the prosecution. Then, the extradition procedures presumably having failed, the Northern Ireland authorities would institute proceedings under this legislation.

Mr. Cooney

Why would a person have to reveal his defence?

Mr. Haughey

In order to defeat the extradition proceedings he would have to admit the offence but claim it was politically motivated because that is the only way he can defeat extradition proceedings. He would have to admit commission of the offence and say he committed the offence, was politically motivated and wanted to resist the extradition proceedings. The provisions of this Bill would then be brought into play and the Northern Ireland authorities would seek to have that person prosecuted down here for the offence. However, that unfortunate person would find himself in the unhappy position of already having admitted to the offence. In my view that person could be put in a double jeopardy. I should like the Minister to deal with that sort of situation.

Can the Minister assure me that that sort of situation will not happen because it seems to me that if this Bill ever becomes operative that will be the normal routine; extradition proceedings first and after an admission by the accused that he committed the offence but was politically motivated there follows an automatic open and shut prosecution under this Bill.

There is another aspect to section 2 which I should like to submit to the Minister and the House, and that is that we are handing over to some person or persons unknown a vitally important fundamental part of our legal and judicial process, the preparation of a prima facie case, the book of evidence. It is a very important part of our criminal law in this part of the country that persons of integrity, persons we know and who are answerable to us as a community, are the persons who prepare the original documents in a criminal prosecution, assess the evidence, judge the nature of the crime and decide at a very early preliminary stage whether there is justification for the prosecution.

That is an integral part of our criminal law process but it is that aspect that we are undoubtedly handing over and entrusting to people or agencies about whom we know nothing. In so far as we know anything at all about them, we have not been given any great faith to believe in their integrity. It seems to me that important process will be entrusted to people outside this jurisdiction, and more important, outside the moral ambience of this community.

I referred at an early stage to persons cooking up books of evidence and the Minister got annoyed. I suggest it is not totally unreal on my part to suggest that at this vitally important preliminary stage of a prosecution there can be cooking, a fabrication of the case to be outlined in the book of evidence, the preliminary documents. That is something of very serious import in so far as our legal and judicial processes are concerned.

Earlier, the Minister spoke at some length about our impeccable judicial traditions and standards, and everybody in the House agrees with that. Fortunately we have succeeded in this part of the country in building up a first class judicial system, fair, impartial, objective, incorruptible, and I am very much afraid the operation of section 2 will put all that in jeopardy because the whole judicial system of ours will have to come into play, will have to be motivated, triggered off, in the first instance by a basic document prepared outside this jurisdiction by persons about whom our judicial system has no knowledge. That is a very serious matter and I hope the Minister will do something to reassure the House and the general public about that aspect.

If we move on from there and take it that the book of evidence has been prepared without any guarantee on our part as to the way in which it was prepared or the basis or the motives which inspired its preparation, and then an accused person from the North of Ireland is in this State and is brought to trial on the basis of that book of evidence, is there not straight away a presumption of guilt against that person? The very fact that he is here, that he has fled Northern Ireland— there may be perfectly legitimate reasons, fear, intimidation—immediately starts up a certain presumption of guilt against that unfortunate person. Then there is thrown against him a book of evidence which is prepared under the most dubious circumstances. Section 2ab initio places that person in an unfortunate situation.

Therefore, at the start the presumption of innocence until proved guilty is greatly weakened. I can see that fundamental principle of our criminal law, that a person is totally and completely innocent until he has been proved guilty, is attacked very strongly in the sort of situation that will be initiated under this section.

I do not say this in any vindictive spirit or by way of any sort of challenge, but one gets an indication of that situation in the way the Minister has spoken about the Bill during the course of the debate. I detected, and some others did, a presumption that all these people are terrorists. He said the Bill is to deal with terrorists. It is only when we remember that the Minister withdrew, very honourably, from that situation and said the Bill is intended to deal with people accused of being terrorists, that we see the point. The Minister's whole approach has been getting terrorists and putting them in jail. That is indicative of the sort of situation accused persons having fled from Northern Ireland will be placed in.

Let us not for a moment fall into the trap of thinking that all of them are violent terrorists. There may be people caught up in these machinations who will be perfectly innocent, persons who should be sympathised with because they had to flee from intimidation. We must again remember that everybody who comes within the ambit of this Bill should be regarded as innocent until proved guilty, but the very circumstances will go against those fundamental basic rights of such people. Then we come on the prosecution of the crime itself.

Mr. Cooney

On a point of order, we are straying far from this section, which creates the extra-territorial offence.

Mr. Haughey

It is this section which brings the trial into being. If we had not got section 2 there would not be any trial. I want to make the point that apart from the serious inhabitions which will be placed on an accused person—having to go to the North to confront his accusers, having to get evidence in his own defence —will be added the preliminary difficult situation in which the very circumstances placed him. All in all, provisions of this section as it is open the way to a serious situation.

I have no hesitation in saying that it is quite easy to visualise a totally innocent person going to jail or being punished in one way or another under the provisions of section 2. It is so comprehensive, it is so interdependent, as Deputy O'Malley said, it is almost impossible to visualise a situation where a ruthless prosecuting counsel could not succeed in getting a conviction against a perfectly innocent person under some of the provisions of this section. I dislike most of all the provisions in subsection (2) and other subsections about aiding, abetting or counselling the commission of an offence.

To give an example of what I mean, subsection (4) provides:

Where a person has committed an offence under subsection (1) or section 3 or attempted to commit any such offence, any other person who, in the State or in Northern Ireland, knowing or believing him to be guilty of the offence or attempt or of some other such offence or attempt, does without reasonable excuse any act with intent to impede his apprehension or prosecution in the State or in Northern Ireland shall be guilty of an offence.

That is very wide and pretty comprehensive. Subsection (2) of section 1 provides:

References in this Act to an act include references to an omission and references to the doing of an act include references to the making of an omission.

That definition is then brought forward into the terms of subsection (4) and you have "does without reasonable excuse any act" and that can mean makes an omission without reasonable excuse "with intent to impede his apprehension or prosecution in the State". By doing nothing at all one can be guilty of an offence. That is putting justice beyond limits in the circumstances in which this Bill will be operating. If an ordinary member of the public in Northern Ireland does not do something and that something would lead to apprehension or prosecution in this State, he will be guilty of an offence. I hope the Minister will be able to give me and the general public some reassurance on this. I find the implications of subsection (2) unpalatable.

Mr. Cooney

Subsection (4), to deal with the last point raised by Deputy Haughey, restates what is already the offence of being an accessory after the fact. That is already part of our criminal law and always has been. The ingredients are contained in subsection (4) and the reason why they are repeated there is because the offence of being an accessory after the fact can only be applied to a felony whereas the extra-territorial offences are not being made felonies. The old-fashioned offence of accessory after the fact does not apply to extra-territorial offences committed under this Bill but it is nevertheless a serious offence and so it has to be restated here. That is what subsection (4) does. It merely restates what is already a long-standing part of our criminal law.

With regard to Deputy Haughey's allegation that a person doing nothing, without reasonable excuse, would be open to apprehension and prosecution here or in Northern Ireland, there will have to be an act of omission without reasonable excuse and with intent. One could imagine a person, who has a duty to close a door, who does not carry out that duty and has no good reason for not carrying it out, with the intent of impending apprehension or prosecution and that is the sort of situation envisaged by subsection (4) and by the definition in subsection (2) of section 1. It is not just a question of a person doing nothing willy-nilly finding himself guilty of committing a criminal offence. There are more ingredients to it than that.

Deputy Haughey was worried about the scope being very wide and the possibility of a vindictive prosecutor prosecuting an innocent citizen in either jurisdiction and catching him for something. I must reject that. Section 2 provides that the offences specified in the Schedule when done in Northern Ireland shall be offences against the State. Then we go to the Schedule which covers quite a wide range of serious criminal offences, but very specific criminal offences. The remaining subsections of section 2 deal with ancilliary or consequential matters arising from the creation of extra-territorial offences. They deal with the inchoate offences of attempting, conspiring, aiding, abetting, counselling and procurring. Subsection (4) restates the old common law offence of accessory after the fact. All through the subsections the matters are matters already part of our existing law in regard to domestic offences, but they have to be restated here in a rather complicated way to deal with all the consequences arising out of the creation of extra-territorial offences. We have to make it an offence to conspire within the State to commit an offence outside the State and vice versa and to aid and abet inside the the commission of an offence outside the State and vice versa. It becomes a bit complicated by reason of the introduction of the principle of extra-territorality and one has to be careful in the drafting not to lead to anomalous situations. The drafting has been carefully done and does appear rather formidable but, when read carefully and in the light of what I am saying, it merely provides for the extra-territorial offences the legal consequences which already exist for domestic offences. Therefore Deputy Haughey's apprehensions are not well founded.

With regard to double jeopardy, Deputy Haughey used these words in a non-technical way. Double jeopardy is covered in section 15. All it does is ensure that a person will not be tried twice for the same offence and that acquittal or conviction in Northern Ireland will entitle a person to plead that acquittal or conviction should he be tried here. Technically speaking that is what double jeopardy is and it is provided for.

Deputy Haughey raised the situation where a person would be sought here on an extradition warrant and in order to claim political exemption he would find himself admitting the offence. The whole point of this Bill is to avoid having to seek extradition for the offences set out in the Schedule on the grounds that up to now extradition for those offences has been unsuccessful because people have pleaded political motivation, thereby escaping the consequences of their alleged crimes. What will happen in the future is that extradition will be put on one side with regard to offences of the kind set out in the Schedule. The accused will be charged before our courts with an extra-territorial offence subject to his right under section 14 to opt to go for trial in Northern Ireland. There is a similar provision in the corresponding British measure. Extradition applications as we know them leading to the political plea or statement that "I did it, but I did it for such-and-such a reason" will no longer be made. Consequently no one will be put in the position of avoiding extradition because his extradition will not henceforth be sought. People will be prosecuted under this Bill for the extra-territorial offence. At the same time, if a person wants to go north he has the option under section 14 to do so. There would be no question of double jeopardy in that non-technical sense.

Deputy Haughey was worried about the preliminary hearing and the books of evidence, that somehow an element of bad faith would come in and that unscrupulous people might cook the case—I am using his words—against an accused person. At the moment the preliminary hearing with regard to offences scheduled to go before the Special Criminal Court has been dispensed with and the ordinary preliminary investigation does not normally take place with regard to offences there. It has not been suggested that there has been any lessening of the rights of an accused person. Indeed, since the introduction of documentation at that stage, the preliminary hearing now is merely a formality in which the justice indicates that on the documents he has read he has decided if there is a prima facie case——

Mr. O'Malley

The Minister should bear in mind what Deputy Haughey said in relation to that in the context of section 18 of the Bill.

Mr. Cooney

We will deal with section 18 when we come to it.

Mr. O'Malley

It strengthens very much Deputy Haughey's argument in relation to concocted books of evidence.

Mr. Cooney

The number of times oral depositions are called for are extremely few——

Mr. O'Malley

It is because the necessity for them is much less here.

Mr. Cooney

Deputy Haughey was worried that there could be concocted books of evidence, particularly when they would be coming from another jurisdiction. He asked what safeguards there were against that. There are a number of safeguards. First, the books of evidence, when presented to the police here who will be the arresting authority and the authority presenting the case, will have to be credible on their face. That will be a basic requirement. They will have to satisfy the police here that they disclose a substantial charge. They will then have to go for examination by the law officers of the State, the Director of Public Prosecutions or the Attorney General, as the case may be. Those experienced professional men will examine the evidence on which the charge is to be sustained and they will decide if it shows a sustainable case. That evidence then has to come into court and it has to stand up to cross-examination and security by the court in the same way as any evidence. That is the protection against concocted evidence, coming from abroad or even domestically, in either civil or criminal cases. It has not been unknown for false evidence to be given to sustain civil actions here. The protection against concocted evidence is the right to cross-examine and to scrutinise evidence carefully and closely and the ability of the court to assess the evidence. If a case is false or wrong it will not stand up. I submit that this is an extreme type of argument to put forward. I am satisfied that the ordinary protection against such a scenario is available in our system.

Deputy Haughey was worried about the situation of a person from Northern Ireland who finds himself on a charge here and who comes South, that there might in some way be a presumption of guilt in advance of his trial. I must reject this because whatever I might feel or a layman might feel about a person who had to come South and who was on a serious terrorist charge our feelings do not matter. What matters are the feelings of the court and I have sufficient confidence in the independence of our judiciary to know they would not undertake the hearing of such a case with any preliminary or prior feelings about the guilt or innocence of a person.

Mr. O'Malley

What about a jury?

Mr. Cooney

So far as any person coming before our courts is concerned, such a person would be coming with an absolute presumption of innocence. There would be no question of any presumption or taint of guilt. Many lay people here feel that if any citizen is arrested for a normal crime down here—I am now using a rather inadequate adjective—there must be something in it because otherwise the Garda would not have moved. That kind of sentiment may be expressed by lay people but it does not affect——

Mr. Haughey

Even in relation to a simple traffic offence?

Mr. Cooney

I am satisfied it is not kind of thing that colours the mind of the court——

Mr. O'Malley

What will be the situation if a person is charged under this section before a jury?

Mr. Cooney

He could be charged before a jury. I am satisfied that a jury would be in exactly the same position with regard to such a defendant as they would be towards any other defendant. A jury would have to be warned by the court to put out of their minds all matters other than the evidence before them. If the Deputy says that is a risk before a jury, it can equally be said that every jury trial has within it this inherent risk that there may be a layman's bias in advance. This is where the trial judge in his charge intervenes——

Mr. Haughey

My point is that the person has come down here and that would not apply in an ordinary jury trial. The fact that such a person came here might give rise to a presumption of guilt.

Mr. Cooney

It might or it might not. If we were at the stage where these extra-territorial offences were being charged before an ordinary jury court we would have reached the situation where the Special Court was dis-established and all the evidence had been taken down here. At that stage it would be irrelevant where the defendent was or where the offence was committed from the point of view of making presumption. We must talk here of the reality, namely, of cases going before the Special Criminal Court. I am satisfied that a defendant from Northern Ireland would not in any way be prejudiced by any preconceived notion as to his guilt. Our courts would have a completely open mind on the matter.

I note the argument of Deputy Haughey that I seem to be perhaps——

Mr. Haughey

Unconsciously.

Mr. Cooney

——not unconsciously, but that I seem to display a prejudice towards the people who would be sought under this measure and that I would be guilty of a layman's bias. I do not accept that. I am very conscious, because of my professional training, of the traditional law of the land that every accused person is innocent until proved guilty. The reality of the situation here is that the most horrible terrorist offences are being committed. People who flee, having committed such savage terrorists. That offences, are savage terrorists. That is the long and the short of it.

The person who is arrested under this Bill cannot be called a savage terrorist but he is a person accused of a savage terrorist act. Nevertheless, the person who committed the act is a savage terrorist and the person accused under this Bill is, of course, an alleged savage terrorist or a person accused of a savage terrorist crime. I make that distinction and I reject any suggestion that I am prejudiced against people who might be caught by this Bill. They will be in exactly the same position as any other citizen against whom a breach of the law is alleged. As far as I am concerned any person arrested under this Bill is innocent until proved guilty.

Those are the points raised by Deputy Haughey with regard to section 2. He raised the point with regard to section 3 that somehow it offends our sense of fair play that we should bring into this the offence of escaping from custody in Northern Ireland. It would be unreal to have extra-territorial offences if we did not also include the act of escaping from lawful custody following conviction for one of those very acts because it would set the whole machinery back to square one—in other words, a person who was to be convicted here for an extra-territorial act and then went to Northern Ireland could not be arrested there and tried for escape from custody down here. The haven would be up there and vice versa. With regard to the person who is convicted in Northern Ireland and imprisoned for an act of terrorism, it would be no advance if we were to say that escape from custody was not to be an offence. Of course, escaping from custody has to be made an offence, otherwise the whole criminal law becomes pointless. Likewise, assisting, inciting or procuring an escape must be made an offence for the same reason. I believe Deputy Haughey allowed his emotions to interfere with his reason when he made the argument that somehow it is not fair play.

Ruairí Brugha

I take it that the schedule of offences in section 2 (1) relates to our schedule here and that there is a corresponding schedule in the reciprocal Act.

Mr. Cooney

Yes, it is the same schedule.

Ruairí Brugha

I take it that custody in relation to a charge of aiding the escape from custody is quite clearly either on remand under charge or actually under sentence?

Mr. Cooney

Yes, it is quite clear.

Ruairí Brugha

It could not apply to detention?

Mr. Cooney

No. It is quite clear, as the Deputy says, that it is custody on remand or custody following a conviction.

Ruairí Brugha

The Minister is quite aware, or he would not be pushing this Bill through the House, of the extraordinary situation in Northern Ireland. That situation gives rise to some of the doubts Deputy Haughey put forward. The question of the presumption of guilt has nothing to do with the presumption of guilt on the part of the Minister or the law enforcement agency here. It is on the possible assumption of guilt in the Northern area where the doubts seem to arise because the very nature of the division of society in the Northern area can lead to all sorts of situations.

We know that there have been many occurrences where people have been murdered simply because they married persons of a different religion. I am trying to show what sort of possible situations can arise where evidence of a prejudicial nature can be presented against people which may not have any validity at all. Would the Minister enlighten us further on how the book of evidence can be evaluated? I take it that in the ordinary course of events when the Garda are putting together the book of evidence they are in touch with the people providing the evidence, whether they are gardaí or witnesses within the jurisdiction under our control. Reasonable doubt could arise where evidence would have been collected in another jurisdiction and would be sent here to the Attorney General who would then have to evaluate it and possibly submit it to the Garda for their advice or assessment. How far can that evidence be evaluated? Would the Garda be in a position to put any queries with regard to evidence provided in the book of evidence which originates from the other area?

Mr. Cooney

Yes. There might be a query to be put, there might be a gap or inconsistency in the evidence, and it would be quite normal for the law officer to say that that gap should be removed.

Ruairí Brugha

I take it that the Minister understands the difficulty. I believe there was a case where the Northern police, following a very horrible occurrence, said they wanted to interview an individual from the Six Counties' area whom they believed was here. At that stage, because the authorities in the Northern area knew the person was not at home and had left the Northern jurisdiction, they seemed to imply that that person was involved in some particular incident across the Border. As far as I remember the person offered to provide witnesses saying that he was in his home or wherever he was at that time. There can be prejudice and the degree of prejudice can rise or fall with the level of the incident. It creates doubt in the minds of many of us regarding the validity of evidence which may be presented.

Mr. Cooney

We are not discussing here the question of prejudice or suspicion. We are discussing the trial of people alleged to have committed one of the terrorist offences in Northern Ireland. Two points have been raised by the Opposition with regard to that. One of them is the fact that such a person living here and arrested here would be seen by people down here as having the finger of guilt pointing at him in advance in a way that would not happen to a person normally resident down here. That may well be a layman's opinion, but that is not what is relevant. What is relevant is the opinion of a judge. I am satisfied our judiciary will approach every case coming before them with completely open minds, irrespective of the antecedents of the defendant coming before them, that is with regard to this presumption of guilt, as Deputy Haughey phrased it. I am satisfied there will be no such thing where it counts—in the court.

Mr. Haughey

Does that carry a corollary assurance that all these cases will go to the Special Criminal Court?

Mr. Cooney

It does, for this reason. All these cases go before the Special Criminal Court——

Mr. Haughey

They will in future?

Mr. Cooney

Yes.

Mr. Haughey

Is that an undertaking?

Mr. Cooney

So long as the Special Criminal Court is there, these cases will go before it. I cannot conceive of a situation where they will go before the ordinary courts because in the ordinary courts there is no provision for evidence on commission. In effect, the limiting of the evidence on commission to special court procedures means that these cases will have to go before the Special Criminal Court.

With regard to the points raised by Deputy Brugha about the evaluation of the evidence coming from the North, let me say firstly, that I am prepared to accept as much bona fides as mala fides on the part of the Northern authorities in submitting books of evidence to the authorities here. I am prepared to have a completely open mind on that. The argument has been made that there is a great danger that false evidence will be concocted and insinuated into a case against the fugitive. I do not think that is a good basis on which to start the argument. I accept there will be bona fides in the working of this mutual arrangement.

Let us assume there is a knave somewhere behind the scenes and he introduces false or concocted evidence. The evaluation of that evidence is not what is done by the Garda, although that would be a preliminary screening because they will read it with a policeman's eye and a policeman's nose for consistency and general veracity. It then has to be scrutinised by the Attorney General and his staff who again have experience in reading books of evidence and witnesses' statements. If either of these bodies see anything inconsistent, they will be entitled to have it clarified, a gap closed or an inconsistency explained, in the same way they would do with regard to a book of evidence which originated with the Garda. It is their job to view this book of evidence in the light of the court proceedings and apply their experience to ensuring that the case being made can be sustained on the evidence to be presented. There would be evaluation by the Garda and by the law officers of the State. These are preliminary evaluations. But the real evaluation is that which will be carried out by the court at the trial. That is the real protection against concocted or false evidence being inserted into books of evidence.

There is no other way of preventing such a thing if a person is of a mind to do it, except by providing screening and evaluating processes. In a civil action between two citizens in this jurisdiction, if one is sufficiently evil to put forward false evidence, there is no way he can be stopped except by having the system of cross-examination and security to ensure that the false evidence will be exposed and his case thereby destroyed. That is our system. We cannot put it any further than that.

I submit that it is wrong to start from the premise that this will be a real live danger to be guarded against. That is unfair. The proper thing is to assume bona fides and we have our system to check it.

Mr. O'Malley

It is very difficult to agree with the Minister when he says we should assume bona fides on the part of the security authorities at present in Northern Ireland. Is the Minister not aware, as is everyone else, that the British Chancellor of the Exchequer has, within the past 12 months, paid out well in excess of £400,000 in compensation to persons who were in the custody of the security forces of Northern Ireland and who were brutally, savagely, systematically and illegally beaten and tortured?

Mr. Cooney

If Deputy O'Malley had been here for the debate this morning, he would have heard me refer to that fact on numerous occasions in the context of debating Deputy Collins' amendment. Deputy Collins has now left the House and Deputy O'Malley has come in to take up the debate not knowing what went before.

Mr. O'Malley

I am referring to the last remarks made by the Minister now.

Mr. Cooney

The Deputy asked me if I was aware that compensation was paid. I am and I made this point this morning. I said that compensation was paid in respect of many acts of unlawful detention and illtreatment during detention. Compensation was paid following actions taken by the citizens concerned in the courts of the United Kingdom against the Government of the United Kingdom. In some cases, decrees were awarded and in some cases settlements were effected. These were in respect of illegal acts carried out against persons in custody in 1971 when the complaint was made by this country to the European Court. We are talking about what happened five years ago.

Mr. O'Malley

Does the Minister seek to justify it now?

Mr. Cooney

I am not justifying it; far from it.

Mr. O'Malley

The Minister is saying that because it happened five years ago it is no longer relevant.

Mr. Cooney

I am not saying it is no longer relevant. I said it happened five years ago and compensation has been paid. Let us not go overboard on this.

Mr. O'Malley

The Minister must be aware that many, if not most, of the people who carried out this torture and brutality are still members of the security forces in Northern Ireland. In my view it is a bit much for the purposes of these two sections—I am not talking about the amendments which were discussed this morning—to assume that there must be bona fides on the part of the security forces of Northern Ireland which are not confined merely to a police force. They also include the British army and the UDR.

Mr. Cooney

Let the Deputy assume mala fides on the part of these forces. If there is consistent mala fides, I am pointing out that the answer to that is in the evaluation and screening process provided by our system.

Mr. O'Malley

Yes, by our system but many of the people tried under this——

Mr. Cooney

This is where the trial will take place—in our jurisdiction and under our system.

Mr. O'Malley

But if evidence is taken in Northern Ireland——

Mr. Cooney

That evidence will be scrutinised by our lawyers and judges.

Mr. O'Malley

There is no point debating a section we have not yet reached. This point was dealt with on Second Stage and will be dealt with subsequently on section 11. It is ludicrous for the Minister to attempt to suggest that where evidence is being taken on commission in Northern Ireland under section 11 that all the safeguards of our system will operate. Our judges will be there simply as observers.

Mr. Cooney

We will deal with that when we come to section 11.

Mr. O'Malley

They have no control over the proceedings or the taking of evidence in Northern Ireland. In particular they have no control, in the last resort, over the security forces who will be giving evidence. The fact that these things have been said before, and will have to be said again, does not invalidate them. They are perfectly true. They make nonsense of the Minister's argument. He blithely seems to accept that no wrong can come from the security forces in Northern Ireland. We certainly do not agree with that, and I think very few people in this country would agree with it.

Mr. Cooney

That is not my position.

Mr. O'Malley

It is no answer to say that the safeguards of our trial system will ensure that any such evidence will be flushed out. Our courts are not in a position to flush it out, because it is a commissioner in Northern Ireland who will be taking the evidence, and not our judges.

I want to go back to what the Minister said earlier. He made two assertions of law which, to my mind, he takes for granted to a great extent. He says they are the law and cites nothing in support of them. One is the statement by the Minister that extra-territorial legislation can apply to people who are not subjects of this State. I referred him to Mr. Justice McMahon's decision and he quoted from it. Mr. Justice McMahon used the phrase, "those who are subjects of the State". The Minister seeks to justify his attitude, in spite of that statement by Mr. Justice McMahon, by saying that the Foyle Fisheries Act, 1952, applied to those who were resident in the State.

Mr. Cooney

It was a narrow point.

Mr. O'Malley

Mr. Justice McMahon did not refer to those who are resident in the State when he was talking about the general power of the Oireachtas to enact extra-terroritorial legislation. He referred to those who are subjects of the State. Why should he do that if he meant something else, as the Minister suggests? Why did he not say something else if the Minister's suggestion is correct? Why should Mr. Justice McMahon say, "those who are subjects of the State" if he meant something else? A man such as he is not given to saying one thing and meaning another. He means what he says. The Minister can come in here and make all the assertions he likes but he still cannot get over the fact that the most recent judgment on this point in this country by the High Court says something different.

Mr. Cooney

It does not. The Deputy must have misinterpreted or misread the judgment.

Mr. O'Malley

The Minister quoted it himself.

Mr. Cooney

The Deputy did not understand it.

Mr. O'Malley

It says, "those who are subjects of the State".

Mr. Cooney

It refers to the fact that, under article 3, law expressed to operate extra-territorially can bind those who are subjects of the State in regard to their conduct in Northern Ireland. What the judge said is that extra-territorial laws can bind those who are subjects of the State and that is a correct statement of the law. So it can. I also went on to say that extra-territorial laws can also bind people who are not subjects of the State. Judge McMahon did not fall to consider that aspect of it because it did not arise under the issue he was deciding. It was a narrow net point he was deciding.

Mr. O'Malley

That is not so because the Act under which he was deciding the case referred not to subjects but to residents. If what the Minister suggests is correct, the judge would have referred to residents of the State and not taken it on himself to introduce the words "subjects of the State". I cannot put the matter any further than that. The Minister simply refuses to accept that words have their normal meaning and he puts his own meaning on them.

Mr. Cooney

I am afraid it is Deputy O'Malley who is guilty of putting his own meaning on words.

Mr. O'Malley

I can only leave it at that. When he spoke first on this section, the Minister sought to give the impression to non-lawyers in particular that extra-territorial legislation was a frequent occurrence and nothing unusual, that it was in no sense unique and that there were ample precedents for it. At the time, Deputy Haughey quoted the Law Commission Report in which the question of widespread extra-territorial legislation was described as unprecedented in common law countries. I believe that is a correct statement of the situation. It is unprecedented in common law countries. Therefore, the proposal in this Bill and in particular in section 2 is unprecedented in this or any other common law country. The Minister should stick to the facts and not seek to lead the public at large to believe there are precedents for what is proposed here.

Mr. Cooney

There are numerous precedents.

Mr. O'Malley

For individual, specific, specialised crimes and not for a huge wide area of crime as set out in the Schedule where there are 13 different categories.

Mr. Cooney

There are numerous precedents for taking extra-territorial power. The principle is well established. It becomes a matter of detail whether we should take it for one offence or 20 offences.

Mr. O'Malley

Nobody is questioning the fact that there are precedents for the taking of extra-territorial powers in relation to limited specific offences.

Mr. Cooney

To deal with limited specific needs.

Mr. O'Malley

If my recollection serves me rightly, there are three such instances in our law, and three only. Three were referred to by the Minister. I have no doubt that, if there were more than three, he would be very happy to refer to more than three. They are for single, specific, specialised crimes.

Mr. Cooney

Exactly. We are taking extra-territorial power to deal with the need expressed in the Bill.

Mr. O'Malley

Here we have 13 different categories which could amount to hundreds of crimes. The Law Commission said that any such proposal as this is unprecedented in common law countries.

Mr. Cooney

They did not say it was wrong.

Mr. O'Malley

I am trying to make the point that, in trying to convey the impression that this is nothing unusual or nothing new, the Minister is misleading the House and the public. Apart from what the Law Commission said, his own explanatory memorandum to the Bill makes the very point which the Law Commission made at the end of page 1 where it is stated:

The subsection provides expressly that the person who does the act "shall be guilty of an offence". This is because of the general rule by which, with a very few exceptions, things done outside the State that would be criminal if done in the State are not merely outside the jurisdiction of its courts but are not offences at all against its law.

Mr. Cooney

Very few exceptions. Because there have not been many instances of it, that does not make it wrong.

Mr. O'Malley

It should be clearly understood that this is not, as the Minister seeks to make people believe, just a further extension of a well-established principle. This is something which, in the words of the Law Commission Report, is unprecedented in common law countries. In the words of his own explanatory memorandum there are very few exceptions.

Mr. Cooney

They were not using the words "unprecedented" in a critical way. They were using it in a factual way.

Mr. O'Malley

In addition to the fact that the creation of offences in this section is unprecedented in common law countries, subsections (4) to (8) of this section create a new type of offence in our law which is of some significance. On page 2 the explanatory memorandum points out that in this country at the moment there is no offence of being an accessory after the fact to a misdemeanour. Now it is proposed to create the offence of accessory after the fact to a misdemeanour.

Mr. Cooney

No. What happens is that the distinction between a felony and a misdemeanour is abolished.

Mr. O'Malley

I am not aware of the provision in this section which abolishes the distinction. I am aware that certain matters of law which pertain to the committing of a felony and not to a misdemeanour are now being extended by this section to a misdemeanour.

Progress reported; Committee to sit again.