Dáil Éireann debate -
Wednesday, 3 Mar 1976

Vol. 288 No. 8

Criminal Law Jurisdiction Bill, 1975 [Seanad]: Fifth Stage.

Question proposed: "That the Bill do now pass."

Mr. G. Collins

The objectives of the Government in introducing this Bill which is now at its final Stage, are designed to punish crimes of violence and to ensure that the men who commit these crimes in Northern Ireland or in the Republic should have no refuge anywhere in the Republic. These objectives my party and I totally support. Every person who lives on this island has an interest in seeing that the bombers, the gunmen and the assasins who have killed and maimed people in Northern Ireland, in the Republic and in Great Britain, who are trying to push the people of Northern Ireland towards civil war, and who have disgraced the people of Ireland in the eyes of the world, are brought to a halt.

While supporting these objectives, we believe that what is contained in this Bill will not achieve those objectives. Every person who lives on this island fully understands that the Northern Ireland majority cannot and will not be bombed into a united Ireland and that the British people cannot be bombed into willing or supporting Irish unity.

Unfortunately while this Bill was being discussed attempts were made to lead the public to believe that if this Bill was passed it would be a panacea for the ills that prevail in this country, that it would be a cure for violence both North and South, and that it would put to flight once and for all the men of violence. Those of us in this party who honestly criticised the Bill—as we still do—were represented at times as giving solace to the men of violence. Nothing could be further from the truth. We in this party treat with contempt the efforts of those who have tried to put the Fianna Fáil Party on the side of violence.

We totally reject the charge that we deliberately delayed the passing of this Bill. We have opposed the Bill on four grounds. First, this Bill, which will be shortly leaving this House, will be politically disastrous in the sense that it will not help to bring peace in Northern Ireland or to promote reconciliation between the communities in Northern Ireland or between North and South. Secondly, we have opposed the Bill because we believe it violates the Constitution of the Republic. Thirdly, we have opposed it because we believe that this legislation, even if constitutionally valid, will not be practicable in its working, and even if it is, it will bring the criminal law of the Republic into contempt. Our fourth main objection to the Bill is that it will compromise our judicial system here in the South and thereby play into the hands of the men of violence who wish to disrupt the institutions of Government both North and South.

We have often said in this House that violence in Northern Ireland should not be considered apart from the political causes which give rise to it. Violence North and South is part of the price we all have to pay for the partition of our country. It is our view that the only long term solution to the problems of violence North and South is to unite our people, Catholic, Protestant and Dissenter, in mutual trust and understanding. We fully realise that such unity will take a long time to achieve and that in the interval we must do all we can to heal the wounds of the past frightful years and to restore peace to the people of Northern Ireland, to the people of all Ireland. If we believed that this Bill would help to reconcile the communities in Northern Ireland or to promote goodwill and understanding among them then we would certainly have given it our support. However, this Bill in its practical working will not promote peace and understanding in Northern Ireland. It will be divisive in the worst possible sense. It will divide North from South; it will divide the majority from the minority in Northern Ireland; it will divide the minority in Northern Ireland from the people of the Republic; and it will divide the people of the Republic.

This Criminal Law (Jurisdiction) Bill has to be seen in the context of policy towards Northern Ireland. This Bill is part of the Sunningdale package negotiated in 1973, but unfortunately we must look at the different situation that exists now from that of the time of the Sunningdale package in 1973. Sunningdale failed. The power-sharing Executive is gone, blackmailed by the workers' strike. We have seen since then the restoration of the old hard line Unionist stance which brought down the Executive at the time. We supported Sunningdale because we believed it attempted to reconcile the conflicting aspirations of the various communities in Northern Ireland. We believed Sunningdale offered partnership between the communities in Northern Ireland and that that partnership between North and South offered a guarantee of civil rights to every man and woman living on this island irrespective of political or religious convictions. If these principles had been realised in effective political institutions I believe that would have laid the foundations of peace and prosperity of a kind which the people living on this island have not known in their tragic history. Unfortunately, the power-sharing Executive in Northern Ireland has been destroyed, the Council of Ireland has not been established and the reforms promised in Sunningdale have not been carried through. The Convention is now at an end and that in itself is sad.

This Bill must be regarded as unconstitutional, unworkable and divisive. It is a negative response from this Coalition Government in that it will do nothing to speed the day of reconciliation or lead to even a temporary solution. In my opinion, it only widens the vacuum created by the failure of political progress. It is now generally accepted, even by the Unionists, that the British have no desire for continued involvement in Irish affairs but find themselves trapped by the negative guarantees contained in British legislation about there being no change in the Northern Ireland situation unless the majority wish it.

This might appear to be in accord with the tenets of democracy, but, given the history of majority rule in the North, we know that the ordinary tenets of democracy cannot be applied there. Either way this guarantee only makes the intransigent more intransigent. When the British declare their interest in uniting the people, then I believe the intransigence will begin to disappear from the Irish scene. It will be only then that discussions can commence on how we can move towards institutions and systems within which everyone on this island can work to our mutual advantage. We have not prescribed a formula nor have we set a time limit for this process. We envisage that our interim and intermediate positions will have to be negotiated. The entire process should be engaged in against a background of peace and we should try to establish a means of ensuring and enforcing peace throughout the island.

Recently we heard the Coalition boast of their commitment to law and order as if that is their only justification for three years in office. There can be no doubt that a policy of law and order is one which any democratic Government are bound to follow. When the Taoiseach says: "We do not bargain at the point of a gun" he is merely asserting that the Coalition are prepared to do what they are morally bound to do under the Constitution.

The point must be made that a policy of law and order does not constitute a Northern policy. Relying on it solely means either total abandonment of any concern for the Northern minority or abject surrender to undemocratic elements who for two years have been allowed to frustrate the wishes of the democratic majority. If this Government have abandoned their commitment to Irish unity, they should have the courage to admit it now or accept the judgment of history on their failure to act.

Sunningdale gave birth to the idea of a common law enforcement area. I understand this to mean a situation on this island where every single person, Catholic or Protestant, Nationalist or Unionist, living in West Belfast or West Kerry, will be guaranteed the same basic civil and religious rights. It envisaged that the European Convention on Human Rights should be made a part of the domestic law in Northern Ireland and the Republic. It also envisaged that the police forces in the North and the Republic would operate under the same basic control and that violence and injustices which gave rise to it would be eliminated side by side.

The concept of the common law enforcement area also envisaged the closest possible co-operation between the police forces in the North and the Republic, bringing to justice perpetrators of outrages both North and South. This total trust and co-operation between the two police forces could only take place, without either force being compromised, if all the citizens in Ireland had the same civil rights and all policemen were subject to the same control. Unfortunately, that is not so.

Many people, including elected representatives of the minority in the North, do not have confidence in the police force and Special Branch operating in that part of the country. Until such time as they have, it is likely that, despite the fact that all the people who live on the island have a common interest in maintaining peace, and that we want time on our side, representatives of all communities should sit down together and devise institutions which will eliminate violence and guarantee peace and justice to every person. We are still not in a situation where this can happen because of lack of trust in sections of the police force in Northern Ireland.

I will deal briefly with the parts of the Bill which, in my view, are unconstitutional. The Long Title reads:

An Act to extend the criminal law of the State to certain acts done in Northern Ireland.

Article 3 of the Constitution effectively limits the extent of laws passed by the Oireachtas. It says:

Pending the re-integration of the national territory...laws enacted by that Parliament shall have the like area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect.

The question must now be asked: have laws enacted by the Oireachtas the same extent of application as is contemplated by this Bill, or the same extra-territorial effect? I believe in both cases the answer must be no.

Under this Bill, if and when it becomes law, it appears to be contemplated that persons charged in the Republic with offences committed in Northern Ireland will be brought before the Special Criminal Court. I believe this is thrusting on that court a job it was never designed to do. Article 38.3.1º of the Constitution provides:

Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.

I take this to mean that the effective administration of justice and the preservation of public peace and order will be in the areas to which laws enacted by the Oireachtas are confined, that is, the Twenty-six Counties.

When dealing with arguments put forward by speakers from this side of the House on the constitutionality of this Bill, the Minister is on record as saying that he is quite prepared to have it tested in the Supreme Court for constitutionality. If this Bill is enacted, I hope it will be immediately referred to the Supreme Court under Article 26 of the Constitution for an opinion as to whether it is repugnant to the Constitution.

This Bill will have a very serious effect on people's respect for the criminal law of the country. The system of trial by jury is a fundamental part of our criminal law. Violence forced the last Fianna Fáil Government reluctantly to re-establish the Special Criminal Court and to make evidence such as the opinions of police superintendents acceptable in certain circumstances when we enacted the Offences Against the State (Amendment) Act, 1972. I do not wish to be controversial at this late stage but I might be forgiven for saying that it is ironic when we remember the antics of the present Minister for Posts and Telegraphs and the present Minister for Justice during that debate, I am certain that the extremes of language they used at that time must be quite an embarrassment to them now. Certainly, the Minister for Posts and Telegraphs who persisted in his opposition to the Act at that time pledged that the next Government would repeal it. The Act is still there and the Government find nothing obnoxious in it. The procedures in respect of the Special Criminal Court are the same as in other criminal courts. The accused is present throughout the hearing; he is entitled to be represented by solicitor and counsel and to challenge witnesses for the prosecution by cross-examination and to give evidence himself.

Section 2 of this Bill contemplates that in certain circumstances evidence may be taken in Northern Ireland for a criminal trial in this State. If an accused person is charged in the State with an offence committed in Northern Ireland all the witnesses, except witnesses as regards procedural matters, will be in Northern Ireland. In many cases, therefore, virtually all the evidence will be taken in Northern Ireland under procedures and rules of evidence which differ from those in the Republic. The accused will have the right to go to Northern Ireland and to be there in the custody of the police force there while evidence against him is being taken. It is unlikely that an accused person charged with a crime of violence committed in Northern Ireland or having escaped from lawful custody in Northern Ireland will voluntarily go there and place himself in the hands of authorities from which he may have escaped. He is given this questionable "right" to attend for the taking of evidence on commission in the North provided he gives himself into the custody of the Northern police. A right would appear to be conferred and then made impossible of exercise. Would it be better not to confer the right at all when it is impossible to exercise it, because the failure of an accused to do so may lead to the comment that he had his chance and did not use it?

In the circumstances, it appears that in many cases all the vital evidence in the case will be taken in the absence of the accused. I suggest that this is a travesty of what our people have come to regard as a fair criminal trial.

If this Bill is enacted I believe it will have the effect of reducing respect for criminal law and in strengthening the hands of those who want to bring all institutions of Government in the Republic and Northern Ireland into contempt. It is a very serious matter to trifle with the people's respect for the criminal law of the State. I regard the Bill and what it contains as a danger to our legal institutions. We are fortunate here in having courts in which the judges rightly command the respect and confidence of the people. If this Bill becomes operational, I believe the judges of the Irish Republic will be placed in a very compromising position. They will be invited to act on the evidence of police officers over whose activities they have no control. They will be obliged to accept evidence procured by methods over which they have no power of investigation or control. Moreover, while the police force in Northern Ireland remains as it is, unreformed, and while the harassment of the minority population there continues, judges from the Republic arriving in Northern Ireland for the purposes of section 2 of this Bill will be placed in a very awkward position. They will have no powers to exercise in the courts in Northern Ireland. They can only sit in silence and watch while the taking of evidence is conducted by another judge, perhaps in the absence of the accused. Surely, the attitude of the minority in Northern Ireland will be influenced if judges from the Republic appear to be helping to enforce the Queen's writ in Northern Ireland acting on the evidence of an unreformed police force and Special Branch.

I believe this Bill will place the judges from the Irish Republic in an impossible situation. They have been called on to act in a way the Constitution never contemplated and they will be exposed to the sneers and hostile propaganda of those who wish to discredit all institutions of Government, North and South.

These are the reasons why if the Bill is enacted and put into operation it will certainly have disastrous effects for all concerned with upholding respect for legal institutions in the North and South. The Bill has been described as trivial and superficial in relation to the nature of the problem with which we are confronted, the restoration of peace based on justice and respect for diverse aspirations in the North. Respect for the combined aspirations of the different sections in the North will require a more fundamental reappraisal of our political and legal institutions than is contemplated by this Bill. Such reappraisal will have to take account not only of the aspirations of the people living in the North but also of the almost insuperable practical difficulties such as that of patrolling the Border.

Parliamentary Secretary to the Taoiseach (Mr. Kelly)

Listening to Deputy Collins I thought I should intervene to draw the attention of the House to four or five points in regard to this Bill. In the latter part of his speech Deputy Collins came back to the theme which was announced, as on a solo instrument, by the Leader of his party on the first day of the debate on the Second Stage of this Bill. That theme was that the Bill was unconstitutional. If the Bill is referred by the President to the Supreme Court we shall have a decision by the Supreme Court on that point in due course, and anybody in this House is taking a great risk by being too definite on the point one way or another—or indeed on any legal point. One can only take the best advice available and do the best one can with it. I recall the Leader of the Opposition expressing his views on the Bill's constitutionality with great care and at great length. The following day the Attorney General replied to him and in the course of a fairly short speech utterly demolished each and every point Deputy Lynch had made the previous day.

I say "demolished" but that is only my opinion. I read both speeches and I have absolutely no doubt that if there were no other argument than the arguments to be seen arising from both those speeches the score would be Attorney General, one, Deputy Lynch, nil. So far as I could judge, not one of the arguments he put up was left in any condition but that of being in shreds by the time the Attorney General sat down. Signs on it, from that day to this not a peep was heard from the Opposition about the alleged unconstitutionality of this Bill. It may occasionally have cropped up during the Committee Stage but certainly during the remainder of the Second Stage debate it was never again alleged by the Opposition. It could not have been alleged by them after the Attorney General's devastating reply.

While Deputy Collins naturally must make his case as best he can, I want to draw the attention of the House, the Press and anyone else who watches the proceedings of the House to this fact. Before they run away with the idea that this hare has again been revived and has got a new lease of life from somewhere—it has not, the only new life in it is what has been breathed into it in the last 15 minutes by Deputy Collins—not a word was heard on this theme since some time before Christmas when the Attorney General delivered a devastating reply to the allegations of a legal and constitutional kind made the previous day by Deputy Lynch. That is not to say that I would bet every penny I have on the Bill surviving scrutiny by the Supreme Court. No one can foresee what may emerge in the course of argument. It is possible that this Bill, like many other Bills, either in the shape of a Bill under Article 26 or subsequently in the shape of an Act, will be found to contain some infirmity of a consitutional kind which this House has not spotted. I would be very surprised if that should happen, if the Bill should be shot down on any of the bases advanced by Deputy Lynch and so effectively dealt with the following day by the Attorney General.

The second important leg of Deputy Collins's argument was that the Bill was wide open to abuse. He was afraid that we could not trust northern institutions, whether of a judicial kind or a police kind, that they were open to abuse, that rights which the Bill purported to confer would turn out not to be rights at all or, indeed, would expose accused persons to serious danger. The reply I make to that is one which has been repeatedly made by the Minister and other speakers during the Second Stage debate. It is that, tacitly built into this Bill, but as clear in the Bill as though it were written in black and white there, is a condition. That condition is one of good faith.

I do not need to tell the House what my feelings are about murderers, bombers, knee-cappers, kidnappers and intimidators. While the House knows my feelings perfectly well about these things I will not stand over this Bill when it becomes law if it leads to any of the situations outlined by Deputy Collins. I would share his apprehensions about and his condemnation of this Bill, when it becomes an Act, if it turns out to work like this. I, for one, would be in favour of not operating the Act any longer. The first accused person, witness, judge or anybody else who is put in peril or who is not treated with the most scrupulous good faith once he crosses the Border will be sufficient for me to suspend any further co-operation on foot of this Bill. I said that before on the Second Stage. I want to say it now and repeat that so far as I know that would be the attitude, not only of the Government but of all the Government supporters as well, who in the case of this Bill I believe comprise about 80 per cent of the Irish people.

I do not need to be told about the RUC, about the authorities in the North or the kind of regime which ran there for 50 years and which, although nothing can excuse barbarism, ultimately provided the soil in which the horrors of the last seven years grew. I have no illusions about them whatsoever. I have eyes in my head. I was able to see what happened in 1968 when the RUC savagely beat up perfectly innocent and peaceful civil rights demonstrators, when the police were involved in the death of an innocent man in his own house, when they went riot with their auxiliaries through Belfast and killed children in their cots. There was not a sign of the IRA in those days. I have no illusions about the people who were then in the saddle, who allowed those things to happen, who stood over them and did their damnedest to prevent them ever being brought to light. I have no illusions whatsoever about them; but if we are ever to have peace in this country we will have to make a start somewhere. We will have to make a gesture of even conditional or provisional confidence some time, even towards the people who have given us offence, even towards the people who have given us ample reason not to trust them.

We will have to do that sooner or later and I believe this Bill offers that kind of opportunity. I am only pushing the hand a few inches across the Border. Once that hand is bitten I will withdraw it very fast. I am speaking for myself but I believe I speak for the Government in saying that. I would push it that distance across and hope for the best, hope that maybe God will take pity on this country and that for once something will get off the ground, for once we will have co-operation, for once there will be good faith and decency in dealing with one another and for once we will be able to say: "We made a gesture which was not emotionally easy. We made it in the teeth of opposition which was politically difficult for us and it worked. The country is a more peaceful one and a less violent one in consequence." That would be my hope. If we ever despair about the success of gestures of this kind we can throw our hats at a decent future for ourselves, our children or their children.

I know it is not in order to make lengthy quotations, but on 12th January Mr. Bob Cooper, one of the founder members of the Alliance Party in the North, the deputy leader of that party, published an article in The Irish Press about this Bill. While I do not want to fall foul of the House's order I have to recommend every word of that article to the Members of this House. Mr. Cooper is not a Nationalist. I differ from him straightaway on that point. So far as I know he is Protestant by faith. I suppose in a general sense he could be described as “unionist” with a small “u” because his belief is that the welfare of the six counties of Northern Ireland is best assured inside the United Kingdom. I differ with him on that point as well. Every word he has written about this Bill deserves to be studied by Members of this House. I have very often found reason to criticise The Irish Press and I have not much regard for some of its aspects and some of its doings but I salute The Irish Press for taking the trouble to get this point of view from Mr. Cooper and for printing it in reasonable prominence.

The leg on which he rests his case is that reconciliation is not a soft, easy option. He says: "It hurts and, unless it hurts, it is useless." He develops that theme by reference to Sunningdale and by reference to what we thought we were getting out of Sunningdale. From the perspective of his people—they are the ones we are talking about, they are the ones we must shake hands with if we are ever to have peace in this country—it did not look like that at all. They saw Sunningdale as a situation in which nothing hurt us, in which we were only getting benefit from it, in which our susceptibilities, ambitions and aspirations were being flattered, in which we were conceding absolutely nothing to anybody.

I have to confess, like nearly everybody else in the country, I was thrilled out of my wits by Sunningdale. I can remember very well the euphoria when the Taoiseach and his team came back and how delighted and thrilled every thinking person in the country was. We were a bit premature in expressing that delight because it was very seriously misinterpreted in the North as being a kind of premature triumphalism. Our delight at getting what looked like a Council of Ireland, even though a non-executive one, was seen in the North as being wild cheering from the South because the first of the bricks constituting the Border had been pulled away. That is how it was seen. I am sorry it was seen like that. In retrospect, I believe that perhaps we looked for too much and we were too obviously delighted by what we got. That is all water under the bridge now, but Mr. Cooper's point, which is a solid and valid one, is that a concession is not worth a damn unless it hurts the person who is making it. A concession which does not cost you twopence is not worth having from the point of view of the person you are making it to. The concession which he expects of us, and which he sees in this Bill, is something which is tough for us to do. Just how tough was seen from the mouths of the Opposition when speaking here—I do not question their sincerity about this—over the last few months. I do not like the idea of sending an accused person, little though the regard might be in which I hold his political associations, across to a police force in which I have no reason to have confidence. I do not like that idea at all. If that police force or those courts once behave with bad faith towards an accused person, a witness or a judge from the Republic that as far as I am concerned, would be the end of this Bill.

But I think that idea will make an impression on the North, that it will be seen as something which is not all that easy to do and something for which we are not getting very much in return. It is something which will not afford us any opportunity for waving the flag or clapping ourselves on the backs and, certainly, there will be no votes for us if the Bill goes wrong.

Mr. Cooper says:

I know that the Criminal Law (Jurisdiction) Bill poses genuine difficulties for many people in the South. I know that it asks them to sacrifice many preconceived notions. I know that for many of them, it is extremely difficult to accept the degree of co-operation with the police and the institutions of government in the North which is necessary if the Bill is to be implemented. But I also know that unless there is an acceptance in the South that reconciliation hurts, then all the pious statements from Southern politicians about reconciliation are just that—pious statements.

He goes on to refer to the late Mr. de Valera and I trust the gentlemen on the other side will take this reference to heart. I quote:

There is an old Irish tradition that when your neighbour is in trouble you gather round and help him out. You don't ask whether he is an Orangeman or a Catholic. You don't remember past disagreements. You don't try and capitalise on his difficulties or take pleasure from seeing him suffer.

It was a fulfilment of that tradition when in 1941, during the German blitz on Belfast, de Valera ordered Southern fire brigades up North to put out the fires. He did not wonder whether his action would infringe his neutrality. He did not haggle about terms. He did what was right and that single action probably had a greater effect on reconciliation between North and South than any speech he ever made.

I say "hear, hear" to that. Although my judgment of the late Mr. de Valera is that he did this country infinitely more harm than good, I have to say that there were some shining points in his career, and that instance I have quoted was one of them. I believe it was responsible for an enormous amount of good in regard to north-south relations. It was a gesture which is remembered to this day, 35 years later, although there was no legal necessity for it. Indeed, the legality of it was questionable in terms of whether it compromised our neutrality; but Mr. de Valera took that action because it was a decent and a neighbourly thing to do. Mr. Cooper continued:

....But the Criminal Law (Jurisdiction) Bill is the equivalent today of the Dundalk Fire Brigade.

That is not my comparison but is the figure of speech of a Unionist, of a man who is different in faith and in political outlook and tradition from most of the people in this State but it is enough to prompt me to stretch my hand across the Border and find out whether I will find the hand of a decent and upright person on the other side and if I fail I will withdraw my hand and think again. I recommend that other Members of the House should look at the situation in this way too.

Regarding the technique which this Bill incorporates, although it is novel and unusual, it is only three weeks since I read that the German Foreign Minister Dr. Genscher who is leader of the liberal party there, said in the course of a speech about terrorism that he saw the time coming when all civilised countries would have to have legislation of a kind different from that to which they have been accustomed. As an instance of the kind of legislation he had in mind for dealing with the terrorists who crossed boundaries, he gave legislation which would permit a State to try somebody alleged to be such a person where found, irrespective of where the offence was alleged to have been committed. Admittedly, he did not instance the Irish Bill, but his opinion was that we were moving in Europe generally to a point where legislation such as that before us would be the order of the day. I do not believe in looking over one's shoulder to see what the others are doing and only to take inspiration from them but these are the views of a man of considerable importance in Europe and in what is the largest and most powerful State in the EEC— there are some who say it is the pivot on which the Community rests. However, I recall that on the Second Stage—that was before Dr. Genscher had spoken in those terms—I felt that we were moving into an era in which legislation like this, broadly speaking, would become more general throughout Europe and other parts of the civilised world. I am not saying that what I said on that occasion has been taken up elsewhere but the same thought has been expressed by a man of infinitely greater importance and experience and who, on his own territory, has a very serious problem —not the same as we have—but the very serious problem of terrorism, not only of the native German kind but of other nationalities who play out their antagonisms on German soil.

The leopard does not change his spots. I am sorry to note that it is still the old Fianna Fáil we are dealing with. At the point at which I first heard Deputy Collins today he was condemning any idea of allowing the Northern majority to decide for themselves the question of whether the country was to remain divided. That is a valid point of view. It is the original fundamentalist republican point of view that this Parliament is illegitimate, that the Northern Parliament was illegitimate, that any form of rule except that which can be traced directly to the 1916 Rising is illegitimate and that any partition or trucking with boundaries carried on since then or any diminution of sovereignty agreed to since then is equally illegitimate and traitorous. That is the old fundamentalist point of view. It is a free country and Deputy Collins is entitled to subscribe to that point of view, but I must remind him that it is a view that is contrary to what his own leader said as Taoiseach.

Repeatedly, Deputy Lynch said— and acquiesced in a vote to this effect here on two occasions—that what his party sought was unity by consent. How can one talk about unity in one breath and with the next breath deny the right of a local majority? We know all the arguments about the illegitimacy of the boundary but it is something that has been there since before any of the people sitting opposite me now was born. That point of view is not reconcilable with the other. Neither the Minister for Justice nor I is worried about ambivalences in the Fianna Fáil point of view, but very lately Fianna Fáil were Government and they may be Government again. But what is Mr. Cooper or anyone else to think of a party which, through the mouth of their Leader, say they will only seek unity by consent when in the very next breath, through the mouth of their Justice spokesman, they say they deny the right of a local majority to decide their future? If I were a Northern Unionist I would not know what to make of Fianna Fáil. A theologian would be required to make anything of what they say, and he would need to be a pretty dodgy theologian at that; but Fianna Fáil have sprouted some of those in their time.

Deputy Collins said that law and order was not a sufficient policy in so far as the North is concerned. I agree that it is not a Northern policy. I agree, too, with the point taken by his leader, that the Government are not entitled to consider their obligations fulfilled merely because they discharge their first duty which is to maintain law and order but at least this Government have done that, if nothing else. While I agree that in itself law and order does not represent Northern policy it is a precondition of a Northern policy. No Northern policy will make sense to the people in the North in its absence and, if this country is delivered up here in the South to the gentlemen with the black berets and black glasses and sour visages, no talk about unity by consent, or any other kind of unity, will cut any ice with the people in the North. Law and order is not a Northern policy but there can be no Northern policy with a chance of success in its absence and I think this is the short answer to those who talk about law and order being the duty of the Government and not subject to a northern policy.

I noticed only two weeks ago the Taoiseach said—we were a long time waiting for Fianna Fáil to say anything of the kind though I do not take credit from any of the gentlemen on the front bench who had, generally speaking, their hearts in the right places in regard to the North— on 20th February that this Government would support whatever regime emerged from a free consensus in the North. Whatever regime they fixed amongst themselves that will satisfy both sides will be all right with us and we will let national aspirations take a back seat for a while as being of less importance than the rights of the ordinary people to live their lives without fear of being blown to smithereens.

That statement by the Taoiseach was applauded by both sides in the North and yesterday Mr. Craig—I know he has a sinister past but many people have sinister pasts—said that that speech by the Taoiseach had given great encouragement to all sides in the North. When were words like that ever used by a Unionist politician about anything coming from Fianna Fáil in or out of office? Never. I am firmly of the belief that the attitude, approach, policy and discharge of duty so essential in regard to Northern Ireland by this Government have been—not impeccable, because no human institution is impeccable; I am sure mistakes have been made—but have been the nearest thing to following the line I would imagine or see 15 men put into effect and I think the Government are entitled to reject and make very short work of criticisms along the lines we heard a moment ago from Deputy Collins. I hope this Bill will work and I hope it will work well and, when it is seen to work well, I hope we will look back on this long and in parts fairly acrimonious debate as something that had to be got through and something from which it will be clearly seen who was right and who was wrong.

Ruairí Brugha

The Parliamentary Secretary does manage to engender a considerable amount of emotion. He wanders into many fields. I should like now to take up one point with him. He spoke about Deputy Collins's remark as to the alleged constitutionality of this Bill and he implied that nobody had said anything about that since Deputy Lynch raised the matter on the Second Reading. He also implied that the Attorney General had expressed a viewpoint and, because he had done so and presumably because it was a viewpoint as a result of advice, we should all accept that and shut up. I would like to assure the Parliamentary Secretary that I was advised by some pretty substantial constitutional lawyers and I suppose so were other members of my party. I am not a lawyer and I took the advice I was given on trust and that advice was that this Bill is unconstitutional in all probability under two Articles of the Constitution. The fact that the Attorney General expressed a viewpoint is no reason why the Opposition should automatically accept what he says. I do not know whether I spoke before or after the Attorney General's intervention but I believe the same matter was mentioned on at least a few occasions during the Committee Stage debate.

As I said, the Parliamentary Secretary has wandered into many fields and, if one were to take up all the points he made and reply to them, one would be here indefinitely and this debate would drag on indefinitely. As I see it, this Bill is not a satisfactory means of achieving the purpose, which is a good purpose, intended. I expressed this view before and nobody has convinced me so far to the contrary. The Bill appears to be unworkable and, on advice, unconstitutional. I am in total agreement with the underlying purpose of the Bill.

Very many years ago I came to the conclusion that violence is not a means by which good political objectives can be achieved here. Long before the present spate of violence commenced I expressed the view in public that force could not in my opinion achieve the purposes intended. In fact, the opposite reaction would in all probability be the result of efforts to achieve unity through violence. I also expressed the view that the use of such methods was contrary to the ideals of earlier generations during a time when there was no national authority here and they asserted the right of Ireland against foreign control of and influence in Irish affairs.

This Bill is now in its final Stage in exactly the same condition as it was when it was introduced. Not one word has been changed. Instead of being negative or obstructive we met the Bill by proposing a reasoned and reasonable amendment. We did so because we believe we should not concur in what was involved, namely, involving our institutions with the Northern security forces and institutions, institutions which are not acceptable to many people in that area and which are not likely to have the support of the minority community so long as there is no political agreement in Northern Ireland.

I understand what the Parliamentary Secretary has been talking about. There is a problem and the problem lies not in the North but with other people across the water. Britain has so far failed to find agreement on a political Executive because the Northern community is so sharply divided that one section at least is not willing to find a common interest in providing political stability, not even for itself, and it is in that situation we are being asked to involve ourselves. It is quite obvious that if there were political agreement in the North there would be little objection to this Bill. Indeed the Bill would probably not be necessary. It is because of the objection we have that we put forward a reasoned amendment calling for a court for the entire island. I explained before that the reason for such a court lay in the difference between partiality and impartiality and the way people felt about these things and I hope the Parliamentary Secretary will understand what I am talking about when I talk about people. You cannot make people trust security authorities who are not under your control. The Government here cannot do that and the Opposition cannot do it. I can understand the emotional way in which the Parliamentary Secretary has been talking about the horrors of the last seven years and I agree with him, but I would ask him to reflect on what his situation would be if he were living in that area and was being asked by an Irish Government to trust people he just cannot trust. One can go a little bit too far.

In failing to get agreement by raising an amendment, we then put down only a couple of amendments aimed at trying to build into this Bill an element of human rights and also a time limit. These were not agreed to by the Government. I have said that there is a lack of confidence in the northern security forces and that neither the Minister nor the Irish Government can make people outside this jurisdiction trust security forces over which neither we nor our courts have any control, or for whose actions the Minister cannot take responsibility. I have already said that much of the case against this Bill rests on the partiality, as distinct from the impartiality, of the security forces as seen by those against whom the Bill may be operated.

It is because of that situation that we put forward the amendment in relation to a court for the entire island, because such a court would be seen to be impartial and the security forces would have to report to that court. As I said, the Minister refused all amendments. It appears that the form of this Bill was agreed to beforehand and that the Minister's hands must have been tied. It also seems that the Minister and the Government did not give much time to the practicalities of the situation; that the aim was to produce a Bill of this kind. Certainly, I heard nothing about the idea of a north/south court, and I think I put the question earlier: who was opposed to it? Was Britain opposed to it or was it merely the intransigent element who are holding up this island and are literally blackmailing all the people who live on this island? If that is the case then the responsibility is Britain's.

I do not wish to speak at length. Deputy Collins, over a fairly lengthy speech, has covered any other points that I would wish to have made. All I can say to the Minister is, first of all, we have not tried to obstruct this Bill. I do not think that we have overtalked ourselves but the experience has been a thoroughly unsatisfactory one for me.

Minister for Justice (Mr. Cooney)

We are at the final stage of a very long debate, both in this House and in the other House, a debate which has had many facets about it which have given rise to many emotions and many strange utterances and unusual ideas. The first time the Bill was debated in this House on the motion to withdraw it with a view to introducing it in the Seanad, I recall the atmosphere of great tension and very high emotions with charges of sell-out being made from the other benches. I could not understand or appreciate the depth of feeling which this Bill was arousing. I could not understand it at that time, but it became clearer to me as the debate went on in the Seanad particularly, and in a more muted fashion in this House subsequently. However, the Bill did go to the Seanad and the approach there was very definitely one of obstruction, not just opposition but obstruction. Having regard to the emotional feeling which the Opposition appeared to have then, that was not so surprising. They felt that the only way in which they could satisfy their feelings about this Bill was to obstruct it to the most extreme degree possible. We had filibustering speeches in the Seanad, again repeating this theme that in some way this Bill was a sell-out and a betrayal. I could never understand who was being sold out or who was being betrayed. I could not reconcile these strong emotions with what was in the Bill.

This Bill proposes to deal with something which everybody recognises to be a scandal, the problem of the fugitive offender escaping the consequences of his activities and bringing, in turn, further consequences inimical and damaging to this country, damaging to its future, because it damages the trust, or rather it prevents the creation of trust, between the two parts of the island. It also brings with it a grave suspicion on the part of the majority in the North that deep down in the South there is sympathy for these offenders. That brings with it the real danger of bombs in the South. This is a consequence of the existence of fugitive offenders, so horrible, so terrible, that I was frankly puzzled by the emotional depth of the Opposition to a Bill designed to end that dreadful thing as far as this part of the island was concerned. At that stage of the debate it seems that the Opposition were not prepared to accept the idea that this Parliament and the institutions of this Republic should be used against terrorist activities committed outside its boundaries. This is the reason for that emotional early opposition and this is the reason behind the accusations of sell-out which were made here, principally by Deputy de Valera. Somehow the Opposition were not ready for the using of the institutions of this State against terrorism committed in Northern Ireland. As the debate went on, and as the actual operation of the Bill was spelled out, the novel features of the Bill became more acceptable to the members of the Opposition. Certainly, the high degree of emotional objections which were made here when the Bill was being transferred to the other House and were made at very considerable length indeed in the Seanad, became muted and, happily, largely disappeared from the debate. If the debate has done nothing more than make all the people of the Republic realise that they have a duty to allow their institutions to be used in the combating of terrorism in Northern Ireland, then it has done an immense amount of good. I would hope that the ideas advanced by Deputy Kelly in his contribution a short while ago would begin to find a greater acceptance, and that there would be a greater awareness of them, and that with a greater acceptance and a greater awareness of them a whole new climate would grow on this island, a climate that would lead to not just the tipping of fingertips across the Border, as he elegantly phrased it, but to their being firm handshakes and embracing between the two divided parts. Of course none of that can be achieved until there is trust. Deputy Kelly said, quoting from the statement of Mr. Bob Cooper, a well-known politician in the North of unionist persuasion, that that cannot be until such time as there are some concessions made towards a reconciliation. I have to repeat that idea; that this Bill must be seen as a concession towards reconciliation, a concession by us here, legislating for things we are not completely happy about, but nevertheless we think we must do it in order to achieve a greater good. That is the proper spirit in which to approach this Bill. If the debate winds up with that idea being floated out of this debate the whole exercise has been worth while.

This is a terribly important Bill. If it works—and I hope it will—it will have a significant beneficial effect for the future of this island. It will be a positive indication to the majority in the North—and they are the people with whom we have to be reconciled —that we are anxious to assist positively and actively in ending the evil of terrorism which besets them. It will change the climate in the island. It was criticised as being divisive. On the contrary this Bill will, because of its cross-Border dimension and the fact that it is going to have to be operated extra-territorially, have a unifying effect in the sense that it will bring the two parts of the island together in its operations. That is good, that this idea of the fingertips touching for mutual benefit will be enhanced by this Bill and expanded and increased. Far from being divisive, it will have a unifying effect because it will introduce a cross-Border dimension, and this I think is desirable.

There has been too much dichotomy on this island. We want to move towards each other, and this Bill gives an opportunity for such a movement. I do not see how it can divide the majority from the minority in the North, as was suggested, because it is aimed at dealing with the common enemy, the terrorist. He is an enemy of both the majority and minority communities. I do not see how it can divide North from South, because this same terrorism is the common enemy of both. I do not see why it should divide people in the South from each other, because again it is aimed at ending a scandal which is bringing all the people of the South into disrepute, so I cannot see any logic in the argument that it is divisive.

I would not be unfair in saying that there were no arguments put forward to sustain the proposition that it was divisive. Allegations of divisiveness were made but no arguments to sustain those allegations. An allegation is only as strong as the argument that supports it. On the contrary, because of its cross-Border dimension, because it is going to bring the two jurisdictions into closer contact with each other in an attempt to deal with a major problem on this island, it is going to have a unifying effect, to break down barriers and antagonisms. It is going to be a significant contribution to the process of the two sides getting to know each other and to trust each other. It is very important from that point of view.

Its constitutionality was called into question from the moment it was born. I felt that, having being called into question, that argument then had to be continued and sustained and reasons to support that allegation had to be found. I felt all along that there was no great heart on the part of the Opposition in alleging unconstitutionality against this Bill. It is novel. That does not necessarily mean it is invalid. It is without precedent in common law jurisdictions, but neither does that necessarily mean it is invalid or unconstitutional. I think there was a misunderstanding of the nature of the principle of extra-territoriality and this possibly contributed to a feeling that it could not be constitutional, that there must be something wrong about it in that regard. That initial, possibly facile, reaction brought with it an obligation to try to construct arguments to support it. However, the debate has been useful in that these arguments have been put forward and substantially rebutted. As Deputy Kelly said, one cannot be 100 per cent proof certain that one's view on the constitutionality of any measure will be absolutely correct. We all have to wait on the decision of the courts to decide finally that point. Should the matter go for decision in the courts I would be happy—and again one takes a risk in putting forward such a point of view—to await the outcome of such adjudication——

Mr. Haughey

There is no alternative really.

Mr. Cooney

——happy in the sense that I would not fear the adjudication. If people who are interested in this aspect of it read the debate carefully, and read the contribution of Deputy Lynch, who made the main anti-constitutional argument, if I may put it that way, and the reply from the Attorney General, who defended the Bill's constitutionality, I think a disinterested observer would come to the conclusion that this Bill appears to be constitutional. However, we will await final adjudication. How that takes place is something we in this House cannot decide on. It is a prerogative that lies elsewhere and the exercise of that prerogative is nothing that we should or can comment upon. Whether it can be tested in that way or contested by a citizen affected by it is something we will just have to wait and see.

As I have said, I am satisfied it is constitutional. The two main arguments impugning its constitutionality related to implementation of the idea of extra-territoriality, that there was an inhibition by virtue of the phrasing of Articles 2 or 3 of the Constitution. I suggest that at the end of the debate there was general acceptance—I recall Deputy Colley very specifically accepting it—that there was power for a State to legislate extra-territorially in accordance with well-defined principles of international law.

The other argument was that it would institutionalise the Special Criminal Court. I think it has been shown that that is not so. Trial for an extra-territorial offence may take place in any court in the land but the procedure for taking evidence on commission can only take place when the trial is before the Special Criminal Court. That is a distinction that I do no think was seen originally and having been exposed and exhibited it puts the matter beyond doubt.

It was argued that there is something wrong about the Bill because it is, as it was described, "the fag end of Sunningdale", that it was all that was left of it, and because that was so it was somehow inferior. If Sunningdale had never happened a Bill of this type was essential because the scandal of the fugivite offender did not arise out of Sunningdale: it predated it and is with us still, and a Bill of this nature would have become necessary even without the Sunningdale Agreement—the pressures on us to end this scandal would have arisen irrespective of any Sunningdale meeting. This Bill can stand on its own and Sunningdale is only incidental to the problem the Bill seeks to deal with.

This argument about Sunningdale was meant to denigrate the Bill. I totally reject it because the problem with which it has to deal has nothing whatever to do with Sunningdale. It arises out of the campaign of terror in Northern Ireland and the fact that fugitives take refuge down here. Therefore, it was incidental to the Sunningdale Agreement.

In that context it was said there was a better remedy than the Bill—and all-Ireland court. Much play was made of the report of the Law Commission, that the reason they rejected the idea of an all-Ireland court was that there was an urgency about the problem. At the same time the commission reported it was clear that it seemed to the commission that of the two options this Bill would be a quicker procedure than to try to establish an all-Ireland court which would have involved a referendum. Of course that would have been only the tip of the iceberg. The people who comprised that commission, jurists and not politicians, were well aware of the political implications and it was not within their province to get into the political arguments for or against an all-Ireland court other than the considerations that would follow from a careful and deep study of the idea of an all-Ireland court. Rather politely they said it would take too long and would require a referendum. Realism demands and acknowledgment that an all-Ireland court——

Mr. O'Kennedy

I think the Minister is stonewalling the Bill.

Mr. Cooney

This is the last opportunity I will have to speak in this historic debate and having regard to all that has been said about the Bill, I think I am entitled to take a little time to deal with the many points that were made. If the Deputies want to leave the House now I will hold the fort until 1.30. Having regard to the myriad of points, rational and irrational, relevant, irrelevant, emotional, unemotional, made during the debate, I must take time to answer.

The Opposition made a lot of play that they are as keen as we are on the idea of dealing with the fugitive offender but they say they would go about it would be to have an all-Ireland court. There is an implication by Deputy Collins that this would involve an all-Ireland police force. Of course that would involve, necessarily, some form of all-Ireland Government and in effect that would be the end of Partition because you would have a unified Ireland. This is so unreal in the context of 1976 as to be ridiculous. If that is being put forward to deal with the problem it must leave those who put it forward open to the charge of not being serious. How can anyone here, having regard to the intransigence and fear in the North from the point of view of having anything to do with the South put forward as a realistic solution an all-Ireland court that by implication would command the allegiance of all sections on this island? That pre-supposes that there must be a political structure, an executive or state of some sort to which that court would have to show allegiance. There would have to be some form of an all-Ireland dimension to have such a court set up.

How can anyone allege there could be an all-Ireland police force which would be needed to provide the means for detecting and bringing people before such a court? I suggest that is a totally unreal argument, totally unreal opposition in the context of this island at the present time. It follows that to suggest something that is totally unreal and has no more hope of becoming a reality than I have of joining Fianna Fáil must cause one to place question marks about the people making such a suggestion and their general attitude to this problem.

That is why I say that the people who put forward this idea have an obligation to show how such things could be expected to be realised. They should also give an indication of a timetable. That has not been done. The idea was put forward as something that could be pursued and of course none of them gave an idea of how it should be pursued and how long its pursuit should take. Because the Convention has failed and even a power-sharing arrangement could not be come to in Northern Ireland, how much more unlikely it is that a similar cross-Border arrangement will ever happen within our lifetime. It seems to me that to argue that an all-Ireland court is the best solution is to make a totally unreal argument.

Mr. G. Collins

No more unreal than what the Minister is doing.

Debate adjourned.

Business suspended at 1.30 p.m. and resumed at 2.30 p.m.