On the last occasion it was agreed that sections 2 and 3 be discussed together. These sections are the key sections of the Bill. The details of the sections, and what may result when they are put into operation, were discussed at length here and in the Seanad. It is clear that what we may say will not change the Minister's mind in the slightest——
Criminal Law (Jurisdiction) Bill, 1975 [Seanad]: Committee Stage (Resumed).
Question again proposed: "That section 2 stand part of the Bill."
The Chair understands that in regard to section 2 amendments Nos. 2 and 3 are being taken together for the purposes of discussion rather than sections 2 and 3.
That is so. We had discussion on the amendments together but we voted on them separately. In the course of the debate on the section the discussion ranged rather freely over sections 2 and 3 of the Bill.
Section 3 came into the picture in so far as section 2 (2) refers to the aiding and abetting of an offence under subsection (1) or under section 3. It was discussed by agreement——
And the agreement is in operation now.
As long as the House understands that is the position.
The Minister is now giving the impression that he has made up his mind and that nothing we say will change it, even to the extent of the time limit proposed by Deputy O'Connell of the Labour Party. That amendment made provision for the operation of the legislation for one year but it was not acceptable to the Government. To their shame they voted against a proposal that the operative provisions of the Bill would be subject to the provisions of the European Convention on Human Rights, even if it meant they would be without the support of some of their Coalition colleagues when the vote came to be taken. The Minister suggested that it was an unnecessary amendment because our own Constitution provided equal if not better guarantees——
We have discussed these amendments and disposed of them. We are now on the section.
I accept that, but they have an important bearing on the section. The Minister conceded that the principle of extra-territorial jurisdiction covering a wide range of offences is possibly unprecedented in common law countries. Probably the only reason the Minister made that grudging admission was because of the fact that these views were expressed by the Law Commission. His sole argument to justify the Bill breaching this unprecedented principle was the needs of the time.
Sir Leslie Scarman, one of England's most distinguished judges, and author of the Scarman Report on disturbances in Northern Ireland, when delivering the Hamlyn lectures in 1974, foresaw as one of the great problems in the immediate future in England the absence of a Bill of Rights. Speaking of the position in England he said:
The legal system must now ensure that the law of the land would itself meet the exacting standards of Human Rights, declared by international instruments, to which the United Kingdom is a party, as inviolable. This calls for entrenched or fundamental laws protected by a Bill of Rights, a Constitutional Law which is the duty of the courts to protect, even against the power of Parliament. In other words, there must be a Constitutional Restraint placed upon the legislative power, which is designed to protect the individual citizen from instant legislation conceived in prejudice and enacted in breach of Human Rights.
We have a position far in advance of England in that we have our Constitution which can, and does, prevail over these Houses. However, it is no great tribute to us as legislators that we can enact legislation such as this and seek to rely, as the Minister has already expressed an interest in relying, on the Supreme Court to determine its constitutionality, especially where two members of that court have sat on the Law Commission and, as such, may have to debar themselves from sitting on a case. As a Parliament we should be in the forefront of refusing to enact, in the words of Scarman, "instant legislation conceived in fear or prejudice and enacted in breach of human rights".
If the Minister claims that this instant legislation is not in breach of human rights, as enacted and clarified by way of international treaty or commentary, why the fear on the part of the Government? Why their refusal to accept amendments that would have made the Bill subject to the provisions of the European Convention? The sole answer the Minister would give to that query was that at best it was tautologous in a Bill, the language of which itself is tautologous in the extreme. This is a poor answer to give to one of a small number of amendments put down on Committee Stage. If our amendments are correct, as I believe they are, they would have substantially safeguarded fundamental human rights that should be in the forefront of our mind. If the Minister is correct in his views regarding our amendments—I do not accept that he is—they would not in any way have detracted from the Bill.
The provisions of the European Convention on Human Rights become doubly important when we remember that there is reciprocal legislation in the United Kingdom to coincide with the provisions of this Bill. We cannot pass this legislation without being conscious of the fact that the reciprocal legislation on the other side will be enacted and operated by a country with no written Constitution, with no Bill of Rights and with proven scant respect for human rights in Northern Ireland where ultimately the only protection of the citizens there is the European Convention.
This point was taken up by Scarman in the same lectures I mentioned earlier. Having claimed that when times were normal English law protected the individual, he said:
When times are abnormally alive with fear and prejudices the common law is at a disadvantage; it cannot resist the will, however frightened or prejudiced it may be of Parliament.
Scarman gave as an illustration the case of Liversidge v. Anderson which dealt with the detention of persons in England during the Second World War and where, under the pressure of that war, judges accepted an interpretation of statutory words which Lord Atkin dubbed as "fantastic" and as an argument which the judge thought would have been addressed acceptably to the Court of King's Bench in the time of Charles I.
I do not think the times in this jurisdiction are abnormally alive with fear or prejudice. I do not believe that in this jurisdiction fear is stalking the land. I believe the Minister and the Government would like to have the public believe that fear is stalking the land. It reminds me of something I read regarding the declining days of the Roman Empire. The emperors offered the citizens bread and circuses to take the citizens' minds off the economic chaos that was about to submerge the empire. This Government are so bankrupt that they cannot offer the people bread and circuses. Instead, to take the people's minds off our economic chaos they offer fear and the threat of war. This is the reality behind the Bill.
With regard to section 3, the Minister said that we should not go overboard in recalling that many people were tortured by the security forces in Northern Ireland. He appeared to justify not going overboard——
The Deputy should quote me exactly.
I am quoting, unfortunately, from the unedited version of what was said in the House and until such time as it is edited——
When was it said?
The Minister should not be touchy. Let me try and make my case. Until such time as the edited version is available the Minister and the House know full well that I cannot quote from it.
On a point of order, this is important. I am being quoted in a very serious context. The Deputy said he was quoting from the unedited version. Will he please tell us the date of the debate from which he is quoting?
I am giving my interpretation of what the Minister said during the course of his contribution on the particular section.
The Deputy quite clearly said that he was quoting from the unedited version.
If the Deputy is purporting to quote he ought to try and give the reference.
I cannot quote from the unedited version of what happened in the House. This is what I am trying to say.
The Deputy said he was quoting from the unedited version because the edited version was not available.
The Minister should not go overboard and allow himself to be upset.
I am not upset. I will not allow myself to be slandered.
I am giving my version of what I believe the Minister said in the House on the last day the discussion took place.
The report of what took place on the last day the Bill was before the House has been published.
The last day was last Wednesday and as yet I have not seen the published report.
It was Wednesday the 28th January and the Official Report is available.
I have not got it.
I suggest that the Deputy should have waited until he checked what I said before he started to quote me.
I will when I get an opportunity.
The Deputy should leave it alone until he does and checks the record.
Tremendous protection was given to the Minister right through this Bill. During the course of the Committee Stage discussion the Minister was very touchy and quite annoyed when anybody dared interrupt him. Not once did I interrupt the Minister.
The Minister raised a point of order as to whether the Deputy was quoting. If so, the Deputy ought to let us have the appropriate reference.
I am going to say what I believe the Minister said.
On a point of order, I do not think the Deputy should say what he believes the Minister said when what the Minister said is available in the Official Report. If I am to be quoted I should be quoted accurately from what is in the Official Report.
I am perfectly in order to give my interpretation of the Minister's contribution on this Bill. No Minister, no matter who he might be, can prevent me from doing that.
The Deputy is misinterpreting what I said. If the Deputy is going to interpret what I said, he should give the House the benefit of what I said and then give his interpretation. I will not quibble with that.
The Minister used a phrase about not going overboard.
Will the Deputy refer me to where I used the phrase?
I have no notion of doing that. I will make my contribution here if I am allowed to do so.
If the Deputy is going to say that I used a phrase will he please refer me to where I used it? The Deputy is quoting.
I am not quoting because I have not got the Official Report. The Minister can quibble as much as he likes.
I am not quibbling. I am challenging the Deputy to show me where I used that phrase.
I will continue, as I am on my feet now. I had to rush in here rather quickly because I did not think we would be on this Bill so soon. I have not got a copy of the Official Report of what the Minister said. I believe the Minister to have said, he has an opportunity of proving me wrong if I am——
The Deputy should not say something unless he is sure he is right.
I believe it.
That is not enough. The Deputy should not put words into my mouth unless they are on the record.
I will say I believe that the Minister said we should not go overboard.
Again, on a point of order, I must protest against this alleged quotation of what I said.
I have already ruled that the Deputy may not purport to quote unless he is prepared to give the appropriate reference.
I cannot right now, so I will not purport to quote. I can say that I believe the Minister said— I am not quoting from anything—that we should not go overboard in recalling that many people were tortured by the security forces in Northern Ireland.
That is a most serious statement to make without giving the exact quotation.
I believe the Minister appeared to justify what he said about not going overboard on the basis that this had happened five years ago and also that compensation had been paid to a great many people. This, if I am correct, totally ignores any concept of human dignity and is totally contrary to the spirit and intention of the European Convention on Human Rights. This convention would allow, if the Minister had his way, for the servants of the State brutally to ill-treat people and so long as compensation was paid for that ill-treatment nobody should then go overboard about it.
The Minister also said that internment has now departed the scene in Northern Ireland and that section 3 will not apply to persons escaping or persons assisting a person to escape from internment or imprisonment. I believe this is an extremely facile point of view and begs a great number of questions. Many people who are now serving sentences in Northern Ireland, as distinct from internment, would be affected by the provisions of section 3. They are serving sentences in Northern Ireland only because of possible perjured evidence in the courts there.
The Minister can ask any of his colleagues in the legal profession in Northern Ireland who appeared before the advisory committee on detention in Long Kesh, about this. I gather they might not have much difficulty in assuring him that much of the evidence given by Special Branch officers and the like was utterly false. The bulk of the offences with which a person might have been convicted, and for which he might be now serving a sentence in such circumstances that section 3 of this Bill would apply, would consist of what are known as terrorist offences.
Of its nature, the evidence given in such cases tends to be confined to members of the security forces, be they RUC or British Army. In the last analysis, the creation of those offences in this jurisdiction and their punishment here under section 3 is dependent on the validity of the persons convicting in Northern Ireland. This validity should not be based on the fact that a person is convicted in a court in Northern Ireland rather than merely interned there but on the fact that in the great majority of these cases the validity will have depended on whether certain members of the security forces in Northern Ireland were honest and truthful or dishonest persons wilfully perjuring themselves to obtain a conviction.
This is something over which our courts will have no jurisdiction because it will be no defence in our courts that the person's detention was unlawful or that his conviction was improperly obtained. In that context, on existing law in this State, where a person is accused, say, of escaping from Mountjoy, it would be a good defence that his detention was unlawful, but such a defence seems to be excluded by the Minister and his advisers in respect of a person detained in Northern Ireland.
Paragraphs (b) and (c) deal with this and it is in this context that the Northern Ireland security forces come into sharp relief, because no matter what the Minister says, neither the prosecuting authority here nor the judges before whom the accused person might appear will have any authority to inquire into the manner of the person's conviction in Northern Ireland. I believe that when the Minister spoke on this section last week he said that the proper thing to do in such circumstances would be to assume the bona fides on the part of the security forces in Northern Ireland. The history of the RUC, the Special Branch and, indeed, the British Army in Northern Ireland cannot lend credence to any such belief. If anything, in dealing with the security forces in Northern Ireland the proper thing for the Minister to do is to presume mala fides.
I said we should have an open mind.
We are dealing with certain persons and in section 3 we will be depending on their veracity not merely in relation to proceedings where a person is charged with an offence under the section but more importantly in relation to the basic conviction which first put him into custody in Northern Ireland. We are dealing with persons who during the very week that the whitewashing Compton Commission were sitting in Belfast and when these people were giving what many believed to be perjured evidence, denying that interrogation in depth had occurred, were at that very time continuing in another part of Northern Ireland that same interrogation in depth.
If the Minister complains, as he seems to, that these are matters now best overlooked because they happened five years ago and that those people were compensated because they were mentally or physically handicapped for the rest of their lives. I suggest to him that he should try to remember the more recent example last year in Dungannon. At that time a complainant in a criminal prosecution in the Northern Ireland courts said he had been viciously assaulted in a police station. The case was fully reported at the time and my recollection is that four or five members of the RUC stood accused of the assault in the dock.
If the Deputy would give us the name of the case we might be able to check it.
I cannot give the definite name of the case. I am speaking from memory, but I will make every effort to trace it. It happened about a year ago, I believe in Dungannon. The Minister's advisers should not have much difficulty in tracing it because it was fairly well reported at the time. Four or five members of the RUC stood in the dock accused of ill-treating the complainant, and practically everybody, including the judge, accepted that the complainant had been viciously ill-treated. It was further accepted, from the defence counsel to the judge, that this had taken place while the person was in a particular Northern Ireland police station.
One by one, each of the accused denied he was one of the persons who had ill-treated the complainant. Of course, the full complement of the RUC and the Special Branch were not in the dock and there was always some fall guy for the accused to blame. To make doubly sure, because the complainant was able to give physical descriptions of the persons who assaulted him, and because some of the descriptions tallied with some of the accused, it became necessary for them to get themselves out of danger and a great number of policemen, in a dramatic charade, stood in the back of the court made up so as to look nearly identical with the policemen in the dock so that when the complainant was asked to identify the accused there were four or five policemen in the body of the court who seemed identical in all physical characteristics with the accused.
That did not happen five years ago but less than a year ago and when the Minister says we should not go overboard about matters such as this because it happened five years ago and compensation was paid, it would be well for the Minister to remember that this example happened very recently and that it is not compensation that is vital but more importantly that the persons guilty of acts such as these should be brought before the law of the country of which they are the police force. What happened in that court in Dungannon was a charade and a mockery of justice, and they are the persons whose bona fides the Minister is willing to accept, on whose bona fides the Minister must rely if section 3 is to be operated. It was on the bona fides of such persons that reliance had to be placed in the first place when the original conviction took place in relation to which either the person himself escaped from custody or some person attempted to help him to escape from custody. Over all of this area our prosecuting authorities and our judiciary will have no function whatsoever. Our laws will be powerless to help such a person from being further convicted under section 3 in this jurisdiction. For this reason we oppose this section.
Over and above the legal arguments that can be made and have been made against this unprecedented use of extra-territorial power remains our reliance on the security forces in Northern Ireland for the operation of this measure. Rely on them we must if this Bill is to operate. Rely on them we must in circumstances in which our own legal and prosecuting authorities and our judiciary will have no control over such security forces.
One small fact will indicate the problem inherent in such reliance. Between 1970 and 1974 2,617 complaints were lodged against the police and security forces in Northern Ireland. About 417 of these were referred to the Director of Public Prosecutions. I understand that only 14 prosecutions ensued and there were only three convictions. Not a single policeman was convicted of assault though, in that same period, nearly £500,000 was paid out in compensation to persons who sustained injuries. The British Government's attitude seems to be that the security forces in Northern Ireland can do what they like because the Government can always buy their way out of trouble afterwards. When the Minister says we should not go overboard about this because compensation has been paid it would seem that the Minister is accepting the same view.
I would like to give the Minister now an example of the bona fides of the persons on whom he will be relying if this Bill becomes law. There are two possible approaches. The first is that the law will be used as just another weapon in the Government's arsenal. In that case it will become little more than a propaganda cover for the disposal of unwanted members of the public. If this is to be done efficiently then the activities of the legal services will have to be tied into the war effort in as discreet a way as possible which means in effect that the member of the Government responsible for law either says subpoena counsel or takes his orders from the head administration. The other alternative is that the court should remain impartial and administer the laws of the country without any direction from the Government. It appears the Minister accepts the first of the two alternatives but, even if he does not, by this Bill he will bind himself hand and foot to accepting the bona fides of those who choose the first alternative, the alternative favoured by the author of the quotation I have given, and successfully carried out by his successors in office and their underlings, namely, those who followed Brigadier Frank Kitson and his views as expounded in low intensity operations. These are my views on this and I should like to hear the Minister reply to them.
We have just had a Second Stage speech from Deputy Collins. We are discussing sections 2 and 3. Section 2 creates the extra-territoriality of the offences in the Schedule and section 3 provides that the offence of escaping from lawful custody will also be an extra-territorial offence. We have now had a Second Stage debate on the merits of this whole legislation. We had similar debates ad nauseam in the Seanad and we have had them here. I do not intend to reply to the ultra green political arguments advanced by Deputy Collins. We cannot go overboard with regard to our attitude to Northern Ireland. We have to observe a middle course and a certain balance. All I would say in regard to the ultra republican points advanced by Deputy Collins is: Let him cast his mind back to west Mayo and consider the effects on the electorate there to the hawkish new Northern Ireland policy of Fianna Fáil.
I will not oblige the Minister with a post mortem debate on the west Mayo by-election.
Like Deputy Collins, I do not propose to follow the contemptible line the Minister just now endeavoured to introduce into this debate.
Deputy O'Malley was not here for Deputy Collins's statement.
I heard virtually all of Deputy Collins's statement.
Could we debate the sections now?
That is what Deputy Collins was debating.
He was debating the Bill.
I was not.
If Deputy Collins was debating the Bill rather than the sections I believe the Chair would have done his duty in regard to that. The Minister's reflection on Deputy Collins is in fact a reflection on the Chair.
This sanctimonious approach does not become Deputy O'Malley.
Let us get back to the sections now.
On a point of order, was I out of order?
I did not suggest the Deputy was. I suggested he debated the Bill generally.
The Chair did not say the Deputy was out of order.
It is a pity we cannot hear the merits of any of these sections commended to us by the Minister. That is indicative of the position in which he finds himself. His only reply to Deputy Collins has been the contemptible one we have just heard. I spoke at some length on these sections, section 2 in particular, and pointed out on the last occasion we debated this measure that they were extraordinarily complicated sections and I was told I was wrong and that was that.
I said the Deputy was wrong in his interpretation of a certain High Court judgment.
There is no point in debating this any longer. There is apparently very little to be gained by continuing the debate. Indeed, it is not a debate because the Minister has no contribution to make. He does not contradict what the effects of these two sections will be. The effects have been detailed by Deputy Collins and I believe Deputy Collins is correct in what he says the effects will be. I made similar points on the last occasion and I was told, as Deputy Collins has been told, that this all happened five years ago and we should not bother about it now. But the situation will be that under these sections people arrested in this jurisdiction will be under the direct control of the security forces in Northern Ireland. It is well known now not alone on the part of British Commissions but also by the European Commission on Human Rights that these security forces have acted in flagrant violation of the European Charter of Human Rights. Yet we are told that, if we complain, we are being ultra green. That is not a proper manner in which to debate this measure. Like Deputy Collins and all Members on this side of the House I regret very much that the effect of these two sections will be to place people arrested in this jurisdiction under the sole control of security forces whose activities have come in for such heavy adverse criticism not just in this country but also in Britain and before the European Commission on Human Rights.
This seems to be a matter that is of no consequence to the Minister so far as one can judge. All I can do is register our strong dissent from the point of view expressed by the Minister on this. We feel that the question of the activities of these forces is very relevant and is putting people, whom we must presume to be innocent until they are convicted, in grave danger of serious assault and injury, if not death in certain circumstances.
The purpose of section 2 is to create a large new series of offences in this jurisdiction described in the Law Commission report as being "unprecedented in common law countries". There seems, to say the least of it, a very arguable case that the principle of trying to create extra-territorial legislation on such a broad scale as this, for people who are not citizens of this country, is open to doubt.
The relevant quotation on page 6 of the judgement of Mr. Justice McMahon, to which I referred the last day, reads:
Under Article 3 laws having a purely domestic import do not extend to Northern Ireland, but laws expressed to operate extra-territorially can bind those who are subjects of the State in regard to their conduct in Northern Ireland.
I take that sentence to mean what, on its face, it is apparently intended to mean. The Minister takes it to mean something else. He takes the words "those who are subjects of the State" to mean those who are resident in the State. I ask the Minister and anyone who wants to look at the matter objectively, why should a judge not say "those who are resident in the State" if that is what he means? Why does he say "those who are subjects of the State"? The Minister feels the judge meant the former and, therefore, the rest of us must assume that that is the meaning of the sentence. I cannot believe a judge would say one thing when he means another, but the Minister obviously believes he does.
The Minister has not argued the principle of this point at all. He has simply and solely said that because the judge meant something else, the point does not arise. On the strength of that judgment, at the very least, it is likely that on this ground, as well as on many other grounds, the validity of this section will be challenged as soon as anybody is prosecuted under it.
If the Minister were prepared to enter into it, one could have a worthwhile and constructive Committee Stage debate on the various ins and outs and technicalities of the now complicated subsections of section 2.
I am quite prepared to deal with any technical points raised.
In the light of his reply to Deputy Collins, the Minister is not so inclined and will hope to get the section through presumably by a greater majority than that when he defeated the earlier amendment to this section last week, when he had a majority of one vote.
A win is a win.
If he is able to ensure that he still has his majority of one, presumably he will walk this section into law——
Deputy O'Malley has lots of experience of that.
——although there must be some people on his side of the House who have as great reservations as we have about the efficacy, usefulness or propriety of the whole concept contained in section 2——
Has the Deputy any specific questions on sections 2 or 3?
——particularly when it is extended to a vast series of offences as set out in the Schedule, where there are 13 headings but infinitely more than 13 potential offences. If we enumerated each one it could amount to several dozen potential offences and is, although the Minister tried to deny it vehemently here the last day, without precedent in common law countries.
I agree entirely with the sentiments expressed by the previous two speakers. The problem, as we see it, is the type of law enforcement agencies who will be cooperating under sections 2 and 3 of this Bill. The Garda Síochána have been found to be an excellent security agency as far as the safety of this country is concerned. In their dealings with the people they have the 100 per cent backing of the people. There is no suggestion that any section of the community down here does not support the Garda Síochána. Those two sections subscribe to the institutions of the State. The vast majority of people here are subscribers to these institutions. We are now being asked by the Minister to accept the fact that we should cooperate with the law enforcement agencies which have been found desperately wanting in their application of their duties and functions to a minority in the six north-eastern counties.
On the other hand, the Garda Síochána have never been found wanting so far as their loyalty to the country or their application to their duties were concerned. The Garda Síochána are manned by people of integrity. The Army are manned by people of patriotic intent and integrity. We have always upheld and supported these two law enforcement agencies. On the one hand that is the situation as it exists in the Twenty-six Counties——
In the Republic?
On the other hand we have a situation where over the years, as a matter of proven record, there have been incidents to such an extent that the Irish Government felt it necessary to bring a torture case against the United Kingdom to the Court of Human Rights. This was brought on the basis of the application of the law by the British Army and the RUC in an unfair fashion in respect of certain sections of the community, particularly the minority there. In this Bill the Minister is asking us to accept that the British Army and the RUC are now good boys and that nothing more untowards will happen, that we forget and forgive the past; we should not look to the past as regards errors we believe were made made in the past and which we believe will continue to be made in the future. Hopefully, a torture case will be brought to the Court of Human Rights under the European Convention and the Minister has avoided the question as to whether that case is now being dealt with, whether it has been finalised within the commission and whether he has the decision of the commission——
I should be glad if the Deputy would relate his remarks more closely to sections 2 and 3.
Sections 2 and 3 are fundamental to the whole discussion on it and it is very important to recognise that the Minister has been sidestepping our call for some indication as to how this torture case has gone. If the Minister could say that the case has been rejected by the commission——
The Deputy is now adverting to a matter that the Chair has ruled to be sub judice.
——our attitude on sections 2 and 3 might well change.
We have been talking about that for the past three days. I thought the Chair had withdrawn that ruling. The whole country has been talking about it and it has been on radio and television.
We must get back to sections 2 and 3 of the Bill.
I assume that it is not because I am speaking that the Chair has decided to exercise what we consider to be a misinterpretation of the sub judice rule in regard to the case before the commission, but on the basis of what the Chair has just said, I would refer the Chair to the Irish Independent of Tuesday, January 27th, 1976, in which there is a heading: “How will they settle the torture case?” I have no objection—how dare I? —to that heading but if the media can discuss the case before the commission is seems extraordinary that Dáil Éireann cannot discuss it. There is a very succinct summary of the general machinery involved in the case and how it is dealt with. I refer to the newspaper article I have mentioned, which says:
Now that Britain is certain to be found guilty in the Torture Case hearing, the big question here is will it go to the Court of Human Rights?
The Deputy appreciates that it has already been adjudged that this matter is sub judice. The House has no control over what a newspaper may say.
I do not object to the newspaper report, quite the contrary because it helps me with my submission. But in relation to the Chair's sub judice ruling it is well known that the case is being discussed up and down the country and on television and in the newspapers generally. We feel the sub judice ruling of the Chair is in some way geared to assist the present Government out of their embarrassment——
That would be a very unfair assessment.
——so as to avoid a discussion which goes to the very root of this Bill and its general efficacy.
As the Chair has ruled on this matter I would ask the Deputy to move away from that aspect of it.
This matter has also been mentioned on quite a number of occasions in the discussion on this Bill and it seems grossly unfair that I should be prevented from discussing a matter which goes to the heart of the Bill.
Any time the matter was mentioned the same ruling has been given by the Chair on each occasion. The Chair has been consistent as regards this ruling.
I do not want to reflect on the Chair but it seems to have been rather selectively consistent —with no disrespect to the Chair. I opened my submission on this Bill on this occasion by suggesting that if the law is not to be brought into disrepute it must be seen to be applied equally to everybody. Our fear is based on the fact that the law enforcement agencies in the north-east of Ireland have been found wanting over the years and that the Minister is in some way satisfied that the law as it applies in the north-east of the country will be applied there in the same way as it has been applied here over the years. Our concern over sections 2 and 3 directly relates to misapplication of the law in the Six Counties over the years.
We accept that those against whom this Bill is aimed are no doubt persons who do not accept the institutions of this country and are, in the main, people who, if given the opportunity, would destroy these institutions. Nevertheless, to be found guilty of the offences as set out in the Schedule to this Bill they must go through what we would consider to be due and proper process of the law.
However, so far as the due and proper process of the law is concerned, the north-eastern part of this island has been found wanting during the past 60 years and it is that situation that causes us such deep concern in relation to sections 2 and 3 of this Bill. It has been said on a number of occasions that persons apprehended under this legislation may be those who would not give to others the opportunity of a trial, but if we subscribe to democratic principles of a proper legal system we must afford these people the right to be tried in a balanced manner. The balance so far as this part of the country is concerned is correct, but there is an imbalance on the Northern side of the Border in regard to the proper and fair implication of the law.
It is not my intention to try to override the ruling of the Chair but I would mention briefly that there is outstanding a very serious case against the UK, a case which must be of much concern to that country.
As reported at column 385 of the Official Report for 27th January, 1976, the Minister said in referring to remarks made earlier by me:
Let me refer to what Deputy Andrews said on the amendment. The tenor of Deputy Andrews' remarks completely overlooks that fact that we in this country, and the people who will be affected by this Bill, do not look to the European Convention on Human Rights for the protection of our personal liberty. We look to our Constitution. That is what gives us our rights and to a far greater degree than these admittedly minimum rights provided by the European Convention. If this Bill is in breach of the European Convention it is also in breach of our Constitution. I deny it is in breach of either.
The Minister must realise that we are subscribers to that convention and that the UK subscribes to it also. Is it not extraordinary, then, that the case of a citizen of the UK, Dr. Cassidy, in which torture and other horrible crimes are alleged to have been perpetrated against her by Chile, should be taken outside Britain which, admittedly, has an unwritten Constitution, to a court which in its intent, aspirations and ideals is not dissimilar to the European Court?
Of course our Constitution sets out certain guidelines and matters which are of fundamental importance to the public discharge of the rule of law. Unfortunately, however, it does not extend to the north-eastern part of the island. Consequently, in the meantime and so far as this Bill is concerned, we must rely on the European Convention on Human Rights in regard to that part of the country. We must recognise that the Bill cannot be regarded only in the light of our Constitution. That is another good reason why Deputy Collins's reasonable amendment in relation to the insertion of certain guarantees enshrined in the Convention on Human Rights should have been accepted by the Minister. While the Bill relates to our Constitution, there is an added ingredient and this is its relationship to the European Convention.
Since both we and the UK have subscribed to that convention it must be the position that for as long as the UK administer the colony of the north-east of this country we must bring our case to the Convention on Human Rights in the event of any problem arising. This is a very important point. It must disabuse the Minister of his suggestion that in some way this Bill is referable in its entirety to our Constitution. Nothing could be further from the facts. Our party is the biggest political party on this island and down through the years we have subscribed to the rule of law. We have never been found wanting in relation to the discharge of the functions of government.
How far back is the Deputy going?
November-December of 1972.
Perhaps 1932 is more interesting to the Minister.
I am asking Deputy Andrews how far back he is going.
Right through the history of this party: the late Mr. de Valera, the late Mr. Lemass and the present Leader of the party, Deputy Lynch, each reiterated the concept of constitutional politics. I have quoted from all three statements indicating clearly where they stood in relation to the rule of law. Our concern in relation to the sections under discussion is that the rule of law in terms of the operability of this legislation will be brought into disrepute because of the imbalance which exists in the north-eastern part of the country.
Since the Committee Stage began this concern of ours has been articulated by the many speakers from this side who have contributed to the debate, whereas Government Members are leaving the whole burden of the Bill to the Minister for Justice. However, I shall not shed tears for the Minister because he is able to carry that burden; but I would be justified in asking why, if the Government are so concerned about the Bill, the various Members have not been here to support the Minister.
I had that support during the Second Stage debate. The Deputy knows well that on Committee Stage it is the normal procedure for the Minister to deal with the Bill for the Government side.
Surely somebody on the Minister's side has been persuaded by his views.
Let us put the question on the two sections before the House.
The only Member from the other side who spoke tried to pull the rug from under the Minister's feet.
There was no question of that.
(Interruptions.)
Favour us with your silence.
We will call a vote now.
In a few minutes.
We are wasting time.
That is right, you are going to muzzle us.
Deputy Andrews on sections 2 and 3.
(Interruptions.)
The people charged with dealing with the legislation before the House do not support the Minister. That is ludicrous.
Argue on the merits of sections 2 and 3 now.
The Deputy should not consider it on Committee Stage. That probably is the Government's edict to the Deputies. "The boys lie down, say not a word. This is for the Minister only, and for the Minister's mouth only." That appears to be the directive to the Government Deputies on this matter. The only Government Deputy that came in to help you——
We are not concerned with that now. We are concerned with sections 2 and 3.
——was Deputy O'Connell who was forced to abstain on his own amendment.
Deputy Andrews is not in order on this. He would be in order in dealing with sections 2 and 3.
At this late stage we would appeal to the Minister to consider our submissions and reflect seriously on them.
The Minister in the course of the debate on this section made an extraordinary statement.
A Deputy
Going overboard?
No, on the basis that he was making a concession, and he said that it was not the intention to catch innocent people. All we can say to that is: "Thanks for nothing."
The argument being made was what the intention was. I sat painfully through the whole Seanad debate.
A Deputy
We painfully read some of yours.
You painfully sat through about ten minutes of the Seanad debate on Committee Stage. It had just opened when you made that statement. The Minister must have a defensive attitude when he makes a statement of that nature, because no criminal law that we would introduce here, or elsewhere, could have any such intention. The Minister went on to say, and one would not wish to misinterpret him:
The intention is to make sure that guilty people do not escape
I want to come back to the point that we cannot decide here who guilty people are.
Hear, hear.
It is the courts who decides this, and I said on the last occasion here that this trend ran right through the Minister's opening speech, that guilty people will not escape. This attitude is basic through his approach to this Bill. The fact that the person is charged does not make him guilty. The whole structure of our courts and the whole administration of our law depends entirely on the jurisdiction of our courts and the determination as to a person's guilt or innocence. On what basis do our courts come to that conclusion? On the basis of evidence presented to them by the police force, in this jurisdiction the Garda Síochána, a police force which operates and is controlled to a very considerable extent subject to the court rules as to matters of questioning and the whole rights which our courts have upheld as to an accused in custody. In other words the whole range of protection which our courts have been very carefully and properly told to ensure will be effective.
Now we come to the interesting point, where the courts are being involved in coming to decisions, and I am leaving out the question of what we regard as nothing short of a contradiction of criminal proceedings, that is the taking of evidence on commission in the possible absence of the accused. In section 2, for instance it states:
Where a person does in Northern Ireland an act that, if done in the State, would constitute an offence specified in the Schedule, he shall be guilty of an offence and he shall be liable on conviction on indictment to the penalty to which he would have been liable if he had done the act in the State.
Presumably the only evidence on which our courts or our Director of Public Prosecutions could move in the first instance would be evidence presented by the police in Northern Ireland that a person had done an act there which, had it been done here, would constitute an offence, and they would pass on this information, presumably to our police. Our police in turn would do their investigations and eventually the Director of Public Prosecutions would decide whether to introduce proceedings. Eventually our courts would be asked to determine the basis of this prosecution or its validity or otherwise. All would depend initially on the information supplied by the police force in Northern Ireland.
There are two relevant aspects to this. First of all, our courts, which are really the guarantors of this whole constitutional system, not only in relation to the police but also in relation to our activities here, are being asked to adjudicate on the guilt or innocence of a person on the basis of information supplied by a police force over whom they have no control. That is new to any principle in our law and certainly something reprehensible.
It is not a question of all purity being on this side of the Border and all wickedness or otherwise, particularly in relation to the police, being on the other side. There is no question of global condemnations, far from it. Nonetheless, the reality is that the history of the conduct of the police force in Northern Ireland has been such as to raise in our minds real doubts and apprehensions. If we are now going to create as an offence here something which is established as an offence on evidence supplied by the police force in Northern Ireland over which we have no control, we are being a little less than realistic as to the circumstances and conduct of the police in Northern Ireland at present. On all sides of the House we would wish that that were not so. I think it would be the dearest wish on all sides of this House that we could, all of us, in every part of this island, give our total support, as we give it here to our police force, to police forces on both sides.
It is fair to say that the political representatives in the North who are concerned for peace and for community support for policemen—the SDLP, the Alliance Party and the UPNI and some elements within the Loyalist group—know it is vitally important that a police force must be acceptable to the community. Many of them are anxious to give all the support they can to that police force. Nonetheless, in their heart of hearts they cannot at the moment see their way to giving publicly that support. The Minister knows this and we know it. If they cannot do it how can we, who are not involved in any way, be asked to do this as the Minister asks us to do it in this Bill? That is the major issue involved in this.
It is not like transferring somebody from Tipperary or Dublin; it is not like matters of extradition which do not relate to questions of political effect. We are dealing with accepting the basis of complaints and evidences, and so on of people against whom we have made the complaints. That is No. 1. No. 2 is that it is an offence under this Bill for a person to escape from what is termed as lawful custody in Northern Ireland. That is just fine. Normally we would go along with anything of that nature if we knew that, in all cases, there was no evidence to suggest that things had been prepetrated on people in custody which were the very negation of their fundamental rights. That is our view. The Fianna Fáil Government presented the complaint to the European Court on Human Rights on the basis that people were ill-treated in custody, inhumanly treated, degraded. This Administration accepted the basis of that complaint, apparently, and followed it up. I do not know if they had the same enthusiasm and conviction in doing so but we assume that, from the inquiries they made at the time, they were satisfied there was a prima facie basis for what the Fianna Fáil Government did.
Does a man commit an offence if he escapes to protect his fundamental human rights, in other words, the right to his own person, the right to the integrity of his own person? If a person is being manhandled or mistreated in custody, having regard to our constitutional position, do we say that man has committed an offence if he escapes from that custody? Do we say, as this Bill says, that if a man omits doing something for the very authorities who manhandled him or mistreated him, he is guilty of an offence? It may be that our complaints in Strasbourg are related to only 1 per cent, maybe 2 per cent, maybe 3 per cent. That does not matter. Even 5 per cent would represent 40 or 50 people or more.
A person might escape from custody to safeguard his life or to protect his person. The Minister will probably say if that is the case we certainly will not prosecute him. How is he to prove that when he is being prosecuted down here? He gives evidence that he was manhandled, mistreated or abused. Who will support his case? Will the fact that he said so establish his innocence? The Minister may say the courts can consider that matter. I do not think it is desirable that the only evidence before the courts would be the evidence of the person himself who said: "I did escape. I had to escape to protect myself." The courts should be in a position to have more evidence than that.
We come back to the basic problem to which this kind of legislation gives rise. We are being asked to accept that everything done in a jurisdiction over which we have no control is being properly done as if it were being done in our jurisdiction over which we have control through this Legislature, and through our courts who, in my view, are the fundamental guarantors. The more the Minister reflects on this, the more he must appreciate that we all have the same hopes and intentions. We share the intention behind this Bill but the way it is being effected in the Bill seems to fly in the face of all the principles of criminal procedure and criminal law.
Perhaps the Minister would tell us how our courts can be expected to adjudicate on information which can only be supplied by the police in Northern Ireland. Does he think he should write something into this Bill to ensure that a person who escapes from a custody in which he is being mistreated will not be charged under this legislation? What guarantees can we write into this legislation to ensure that what has happened in the past cannot happen in future to even one individual under this type of legislation? The only way in which we can operate is with guarantees written into our law, and not informal guarantees given by the Minister. I should like to hear his observations on these questions.
I have been asked three questions by Deputy O'Kennedy. Of course when you have the creation of an extra-territorial offence it can only be prosecuted on extra-territorial evidence, evidence obtained outside the jurisdiction. That is an unavoidable consequence of creating an extra-territorial offence. It is for our courts to assess that evidence in the normal way they assess evidence coming before them. They listen to the examination and the cross-examination of the witnesses. They observe their demeanour and attitudes and they then assess the evidence and its validity. The Protection for our citizens lies in our courts which Deputy O'Kennedy has rightly praised. I cannot see the reasoning in the suggestion that you should not operate a measure incorporating extra-territoriality merely because the evidence to support the charges comes from the outside. You cannot have evidence from elsewhere by virtue of the extra-territorial nature of the crime.
The second question he asked was what was the position of a person who escaped from lawful custody in Northern Ireland because he was being ill-treated. If the question of a prosecution arises, it is a prosecution within this jurisdiction for the extra-territorial crime of escaping from lawful custody in the other jurisdiction. I would rely on our courts and on our law officers as to whether a case in such circumstances was a good case at all for prosecution. If our law officers decide that prima facie an offence is committed — and they will have had the opportunity of examining the full files — it goes before the courts the same as any case has to go before the courts for final adjudication as to the merits of the parties' allegations. It is a matter for the courts to determine the validity or otherwise of the charge.
Would our courts not have to convict no matter what the reason for the escape was?
Yes, because escaping from lawful custody is an offence. In the unlikely situation of such a prosecution — and it is really straining for examples to adduce that as an example — and in the unlikely event of the courts having to record a technical conviction on a person in those cirstances, all it would be is a technical conviction. No punishment would be imposed.
Deputy O'Kennedy asked what are the guarantees. The guarantees are the same as in any legislation. Sanctions are provided in the hope that they will render obedience to the law effective. The sanction is provided here. That is the guarantee, the sanction being continued co-operation.
The Minister's defence of the indefensible is becoming weaker as we go along. On the first point he said our courts can assess the evidence as they would in any case. This is very different from the manner in which they would assess the evidence in any other case. In any other case the courts on which the Minister and I rely so much can ask questions directly. They are not just sitting as observers.
Can the Deputy see any point of difference between my asking him a question directly and asking Deputy Collins to ask him a question and observing his answer? As a practising counsel he must realise that the practice of excessive judicial questioning is not something that commends itself to advocates.
Far be it from me or the Minister to tell judges how they should behave, but if he is suggesting that judges are in as good a position to determine the credibility of an accused person simply by sitting and observing him being questioned by someone else——
That is what they do every day of the week in the courts.
They do that and more, and the "more" is that they themselves, if they want to clear up some matters in their own mind, can engage in questioning.
It is provided for here, that they may do so on commission as well.
They may not do so on commission. At no stage have we heard the Minister suggest until now that our judges who will be sitting as observers on commission can actually question the witness directly.
I said they can ask questions through the commission.
That is no use. Asking questions at third hand is very different from being able to pursue your own questions. To suggest that this is not depriving our courts of a fundamental facility in the criminal procedure is ignoring the reality, and I am surprised that the Minister pretends that it is other than that. It is not for the Minister or me to tell judges what are or are not effective aids in coming to their decisions. The reality is that under this legislation they will not be able to do what they can do in every other criminal prosecution. The Minister spoke about escape from custody and said we were straining the point a little. He now has to acknowledge that no matter how the accused was being treated in that custody, the very fact that he has escaped obliges our courts, on that evidence alone, to convict him. If he came in physically bruised——
It is the same as if he escaped from prison here under the same circumstances.
But we have made no complaints against our own police and I hope that we will never have occasion to do so. We may be speaking about only a small minority of police in the North, but nonetheless that complaint has been made; the Government of which the Minister is a member have stood over it and have probably got at least a summary of the conclusions. We are actually talking here about things that have happened in the last couple of years. We are not imagining things. The Minister may be the one who is imagining things if he says that all that has happened will never happen again. Our obligation is to protect the individual's rights. If the Minister says in reply to point two that, of course, he would be guilty of a technical offence——
If convicted.
If convicted. That is a very strange admission for any Minister to make.
That is the position. It is not any admission by me.
If, for the sake of protecting his own person, one of those men in respect of whom our Government lodged a complaint escaped from custody——
Such a person would not be prosecuted at all, and obviously the law officer of the State would not have a prosecution.
Again the Minister is relying on the good sense of our law officers and of our police——
We have to do that.
As legislators we are not concerned with the good sense people might have in a given situation. We are concerned to see that could never happen in any situation. Otherwise we might as well say that there is no need for legislation in any event; we can rely on everybody's good sense. Therefore, point two fails and fails very badly. I do not want to be tempted to say that when liberals lose their liberal hue they really lose it. I trust that what I am saying is not what is amusing the Minister for Posts and Telegraphs, because I can imagine him fiercely defending this if he were on the other side. Be that as it may, I have made three precise points and I have to say——
I have not satisfied the Deputy with my answers.
And what is more, if there is such a thing as an independent observer, if there was a judge sitting in judgement on this, I do not think the Minister would have satisfied him either. In view of the Minister's response to even those queries, it is clear that he is determined to go ahead. We are not determined to overstate our case.
It has been clear for a long time.
Why is the Minister for Posts and Telegraphs not out settling the strike? What is he doing here? He is not even assisting the Minister.
In the circumstances, I do not know whether there is any point in our proceeding any further with this. The Minister asked us if we had any precise queries. I have raised them but the Minister has not given satisfactory answers.
Again we have to agree to differ.
We are not going to be painted as obstructing this whole matter. I do not know what our spokesman——
He agrees with the Deputy.
I do not know whether he thinks there is any point in arguing with the Minister on this section. I think we can leave it at that.
All the troops are in.
Question put.
The Committee divid ed: Tá, 62; Níl, 57.
Tá
- Barry, Peter.
- 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.
- Collins, Edward.
- Conlan, John F.
- Coogan, Fintan.
- Cooney, Patrick M.
- Corish, Brendan.
- Cosgrave, Liam.
- Costello, Declan.
- Creed, Donal.
- Crotty, Kieran.
- Cruise-O'Brien, Conor.
- Desmond, Barry.
- Desmond, Eileen.
- Dockrell, Henry P.
- Dockrell, Maurice.
- Donegan, Patrick S.
- Donnellan, John.
- Enright, Thomas.
- Esmonde, John G.
- Finn, Martin.
- FitzGerald, Garret.
- Fitzpatrick, Tom (Cavan).
- Flanagan, Oliver J.
- Gillhawley, Eugene.
- Governey, Desmond.
- Griffin, Brendan.
- Hegarty, Patrick.
- Hogan O'Higgins, Brigid.
- Jones, Denis F.
- Kavanagh, Liam.
- Keating, Justin.
- Kelly, John.
- Kenny, Enda.
- L'Estrange, Gerald.
- Lynch, Gerard.
- McLaughlin, Joseph.
- McMahon, Larry.
- Malone, Patrick.
- Murphy, Michael P.
- O'Brien, Fergus.
- O'Leary, Michael.
- O'Sullivan, John L.
- Pattison, Seamus.
- Ryan, Richie.
- Staunton, Myles.
- Taylor, Frank.
- Timmins, David.
- Toal, Brendan.
- Tully, James.
- White, James.
Níl
- Allen, Lorcan.
- Andrews, David.
- Brady, Philip A.
- Brennan, Joseph.
- Breslin, Cormac.
- Briscoe, Ben.
- Brugha, Ruairí.
- Burke, Raphael P.
- Callanan, John.
- Calleary, Seán.
- Colley, George.
- Collins, Gerard.
- Connolly, Gerard.
- Crinion, Brendan.
- Cronin, Jerry.
- Crowley, Flor.
- Daly, Brendan.
- Davern, Noel.
- de Valera, Vivion.
- Dowling, Joe.
- Fahey, Jackie.
- Farrell, Joseph.
- Faulkner, Pádraig.
- Fitzgerald, Gene.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Malley, Desmond.
- Power, Patrick.
- Smith, Patrick.
- Fitzpatrick, Tom (Dublin Central).
- French, Seán.
- Gallagher, Denis.
- Geoghegan-Quinn, Máire.
- Gibbons, James.
- Gogan, Richard P.
- Haughey, Charles.
- Herbert, Michael.
- Hussey, Thomas.
- Kenneally, William.
- Kitt, Michael P.
- Lalor, Patrick J.
- Lemass, Noel T.
- Leonard, James.
- Lynch, Celia.
- Lynch, Jack.
- McEllistrim, Thomas.
- MacSharry, Ray.
- Meaney, Tom.
- Molloy, Robert.
- Moore, Seán.
- Murphy, Ciarán.
- Nolan, Thomas.
- O'Connor, Timothy.
- Timmons, Eugene.
- Tunney, Jim.
- Walsh, Seán.
- Wyse, Pearse.
Tellers: Tá, Deputies Kelly and B. Desmond; Níl, Deputies Lalor and Andrews.
Question declared carried.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
Section 3 has been debated with section 2.
Question put.
The Committee divided: Tá, 62; Níl, 57.
Tá
- Barry, Peter.
- 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.
- Collins, Edward.
- Conlan, John F.
- Coogan, Fintan.
- Cooney, Patrick M.
- Corish, Brendan.
- Cosgrave, Liam.
- Costello, Declan.
- Creed, Donal.
- Crotty, Kieran.
- Cruise-O'Brien, Conor.
- Desmond, Barry.
- Desmond, Eileen.
- Dockrell, Henry P.
- 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.
- Hegarty, Patrick.
- Hogan O'Higgins, Brigid.
- Jones, Denis F.
- Kavanagh, Liam.
- Keating, Justin.
- Kelly, John.
- Kenny, Enda.
- L'Estrange, Gerald.
- Lynch, Gerard.
- McLaughlin, Joseph.
- McMahon, Larry.
- Malone, Patrick.
- Murphy, Michael P.
- O'Brien, Fergus.
- O'Leary, Michael.
- O'Sullivan, John L.
- Pattison, Seamus.
- Ryan, Richie.
- Staunton, Myles.
- Taylor, Frank.
- Timmins, Godfrey.
- Toal, Brendan.
- Tully, James.
- White, James.
Níl
- Allen, Lorcan.
- Andrews, David.
- Brady, Philip A.
- Brennan, Joseph.
- Breslin, Cormac.
- Briscoe, Ben.
- Brugha, Ruairí.
- Burke, Raphael P.
- Callanan, John.
- Calleary, Seán.
- Colley, George.
- Collins, Gerard.
- Connolly, Gerard.
- Crinion, Brendan.
- Cronin, Jerry.
- Crowley, Flor.
- Daly, Brendan.
- Kitt, Michael P.
- Lalor, Patrick J.
- Lemass, Noel T.
- Leonard, James.
- Lynch, Celia.
- Lynch, Jack.
- McEllistrim, Thomas.
- MacSharry, Ray.
- Meaney, Tom.
- Molloy, Robert.
- Moore, Seán.
- Murphy, Ciarán.
- Davern, Noel.
- de Valera, Vivion.
- Dowling, Joe.
- Fahey, Jackie.
- Farrell, Joseph.
- Faulkner, Pádraig.
- Fitzgerald, Gene.
- Fitzpatrick, Tom (Dublin Central).
- French, Seán.
- Gallagher, Denis.
- Geoghegan-Quinn, Máire.
- Gibbons, James.
- Gogan, Richard P.
- Haughey, Charles.
- Herbert, Michael.
- Hussey, Thomas.
- Kenneally, William.
- Nolan, Thomas.
- O'Connor, Timothy.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Malley, Desmond.
- Power, Patrick.
- Smith, Patrick.
- Timmons, Eugene.
- Tunney, Jim.
- Walsh, Seán.
- Wyse, Pearse.
Tellers: Tá, Deputies Kelly and B. Desmond; Níl, Deputies Lalor and Andrews.
Question declared carried.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."
This section re-enacts sections 2 and 3 of the Explosive Substances Act, 1883. Section 2 of that Act, as re-enacted, provides that it is an offence for a person in the State, or, being an Irish citizen, outside the State — anywhere in the world, to cause an explosion of a kind likely to have the effects set out in the section. Section 3 as re-enacted, deals with the analogous situation of acts preliminary to the causing of an explosion. It deals with doing an act with intent to cause, or conspiracy to cause, an explosion. Again, it covers persons who in the State, or being Irish citizens outside the State, conspire to cause explosions within the State or elsewhere or have in their possession or under their control explosive substances with intent to endanger life or cause serious injury to property in the State or elsewhere. These offences are then declared to be scheduled offences for the purposes of the Act.
The opportunity was taken to restate the 1883 Act, because of course when it was passed there was only one parliament for these two islands. Section 3 of the 1883 Act, relating to the doing of an act preparatory to the causing of an explosion, made it an offence for any person in the British dominions or a British subject outside those dominions to do any act with intent to cause an explosion of a kind likely to endanger life or damage property in the United Kingdom or to make or possess explosive substances for that purpose. It was necessary to re-enact that section to take account of the present-day circumstances. The application of the section in British law was restricted by the British Nationality Act, 1948, so as to make the reference to British subjects apply only to citizens of the United Kingdom and colonies and the reference to the British dominions apply only to the United Kingdom and the colonies, but that did not affect the application of the law here.
As I say, it is necessary to restate the law in modern terms having regard to the present constitutional position in these islands so that the offence will now affect persons who in the State, or being Irish citizens outside the State, conspire to cause an explosion in the State or elsewhere. It covers an Irish citizen abroad conspiring to cause an explosion outside the State in the same way that section 2, of the 1883 Act, as to be re-enacted, makes it an offence for a person in the State, or being an Irish citizen outside the State, to cause an explosion likely to endanger life or cause serious injury to property.
These are serious offences and they are made scheduled offences, so that they become extra-territorial. I am sure nobody will deny the need for tightening the law with regard to the use of explosives, the law with regard to conspiracy and the law with regard to possession of explosives in the context of these two islands. It is important that we should be seen in this parliament to be prepared to make extra-territorial provisions to deal with bombers not merely in Northern Ireland but in England, because to describe those crimes as reprehensible is not to describe them adequately since they deny all the canons of civilisation. They do immense harm to the well-being of the Irish people. Consequently the sections as now drafted cover the case of explosions being caused in Great Britain as well as in Northern Ireland.
Progress reported; Committee to sit again.