I made that statement because the Minister shook his head. If that is the case I will ask some fundamental questions. One significant absence from the Minister's speech was a reference to the outrageous and widely publicised processes of law that have operated in trials in Britain, particularly in regard to the Birmingham and Guildford defendants. Have we lost all courage and all responsibility that we are afraid to refer to those trials? It is the Minister's role to administer the law here and to show that he above anybody else will demonstrate that the principles of justice will be applied, but in the course of a 30-page speech introducing the Bill he made no reference at all to the total repudiation and rejection that have been voiced about what was done in the name of justice to those people.
I am sure the Minister will have heard of the Federation of Irish Societies in Britain — the Taoiseach certainly has. They represent, I would say, a most responsible, respected and well established group in society in Britain or elsewhere. They were outraged by the Minister's failure to make any reference to their concern and that of most people in Britain about the maladministration of justice in that case. They have been making a case through parliamentarians of all parties for a new trial for those unfortunate people.
The Minister has told us that there will be six months moratorium until June. That applies only to the process of law as it affects Northern Ireland — there is no reference to the position about what is being done in the name of law in Britain. Have we such little strength that we are afraid to state that what Britain has been doing in the name of law is totally reprehensible and that we cannot enter into agreements with them in regard to international law unless they demonstrate to us and to the world that they have respect for the application of the law to all citizens? The federation I have referred to continue to say that and we must support them, no matter what our obligations are to Britain, no matter who is their Prime Minister.
Let us look at another statement by the Minister in his introductory speech. It relates to our obligations to our own citizens. That part of his statement has caused grave offence to the Irish in Britain. There is reference to the Fianna Fáil policy of having special care for our citizens under extradition arrangements with Northern Ireland particularly, which is, after all, part of the territorial area of this country under law as far as we have seen it enshrined in our Constitution —de jure part of this land, if not de facto. The Minister said this, by way of reference to the fact that we do not extend our citizenship protections to Irish people in England:
Our citizenship laws are very wide by international standards. Apart from the fact that nearly everybody in Northern Ireland is an Irish citizen, numerous thousands of people in Britain who are of Irish descent are also Irish citizens. To exclude Irish citizens from extradition arrangements is, in our situation, tantamount to saying we will not extradite at all.
Those Irish in Britain, no matter how they may suffer, apparently will not be given the protection of whatever reservations we have here — there are too many of them. Whose shame is that, theirs are ours, particularly in recent times? We export them. Therefore, those Irish citizens will be subjected to the Prevention of Terrorism Act every time they pass to and fro coming here on holidays or on business. They will be subject to the practices and procedures we complained about because there are too many of them and we cannot vindicate their rights — according to the Minister we are not to exclude our citizens from the application of this Convention. That was a shameful statement by the Minister which gave offence to the countless thousands of Irish citizens in Britain who have made major contributions there, and to us at home as well.
When we extradite persons they will be subject to all of the processes of the laws of that country, police practices, courts, statute law. We will extradite them to a country where the climate of opinion may be very different from our own. Do we not know that some of the British tabloids, for instance, even at the hint of an offence or maybe when there is an outrageous offence such as bombings in Birmingham or elsewhere, direct general condemnation at Irish citizens which arouses widespread prejudice? That does not exist here. We as a sovereign nation must take account of that prejudice in any country before we agree to extradite. The Government are failing totally to do this. Some outrageous prejudice has been aroused particularly by some English newspapers.
One can share with Irish citizens in Britain, and indeed the public at large there, the great anxiety and worry about offences of the kind I have spoken about, but the general condemnation that is expressed of Irish citizens must be taken account of — I refer specifically to some of the cartoons we have seen.
Police practices are part of the extradition process. Does anybody say in relation to the Birmingham bombing cases that we would condone here those police practices in respect of our own or any other citizens? Would we subject people to a trial based on preliminary police investigation, to use euphemistic terms? Of course we would not. Of course Britain is embarrassed by the fact that this is being exposed before the world, but apparently we are more concerned about their embarrassment than in ensuring that justice will be done and seen to be done, and be guaranteed to be done in the future. It is time that those police practices that would not be tolerated here be rejected and condemned for what they are, outrageous interference in the name of the State in the rights of individuals. Who could have confidence in extraditing people in those circumstances?
Another matter that comes into this legislation is the application of the courts. I will not comment on the courts here or in Britain beyond saying that the principle of exclusion for political offences was established in the first instance in the United Kingdom courts, particularly in the House of Lords. The principle about which we are speaking here is not one that was dreamed up in Ireland, or even in France, America or anywhere else. It has been an essential part of the law of Britain, as laid down in the House of Lords and in many other judgments for years. Assuming that the British courts adhere to that principle — and it has to be said that as far as the application of principals are concerned they do — nonetheless why should we allow it to pass unnoticed that if those are the principles on which the courts will act, where the pre-trial practices in police questioning or otherwise are such as to make the total process unacceptable by our standards, we are not going to say: oh, yes, but it is your principles of not extraditing for political offences that we are following? In effect that is what we are doing. It is they who first said one does not extradite for political offences. It is they who have been recognised internationally, who have laid down the law and in court judgments that will make it more difficult to extradite out of Britain than anywhere else in the world. That is as they see it. We do not see it that way; we make it very easy for anybody.
I might quote from 1973 All-England Law Reports, from a leading case, in the House of Lords, the famous case of TzuTsai Cheng and the Governor of Pentonville. Lord Simon was speaking on the conclusion of the case, refusing to grant extradition in respect of a person who was accused of a political offence, an offence that appears to have been of terrorist violence — he was a member of a Taiwanese organisation in the United States dedicated to the overthrow of the existing régime in Taiwan and was accused of a terrorist offence in the course of demonstrations and an attempt to commit a crime of violence. He subsequently found himself in Britain from which his extradition to the United States was being sought. We do not often quote House of Lords decisions here but it is no harm to quote Lord Simon now. He said:
It is unlikely that the world will ever be free of political crime: subjects will always tend to feel grievance against their governors, there will always be conflicts of ideology, and some people seem to have a natural propensity to express themselves in violence. But there is the less excuse for, and therefore will be the less public condonation of, political violence if there is institutional power to influence the decisions of government and if substantial freedom of expression is safeguarded by the law. This country prides itself on its tradition of constitutional government and freedom under the law. Our tradition of asylum for political criminals is closely associated with our cherishing of our own rights.
There is Lord Simon saying that their standing internationally is based on the fact that their tradition of asylum for political criminals is closely associated with their cherishing of their own rights. At least they respect their own principles. Apparently we are going to repudiate ours. On that basis this approach by the Government overlooks all of the most established conventional principles of the law and of the application of the rule of law through the courts in any country.
There is something else I want to say about the relationship between Britain and ourselves. What we are proposing here is extradition without the protections that have obtained heretofore. Are we not aware of the fact that already between Britain and Ireland there is something exceptional that does not exist at all between other countries? As if we have not gone far enough, we are now going further. The extra-territorial jurisdiction provision introduced after Sunningdale, the Criminal Law (Jurisdiction) Act procedure, whereby a person can be tried here for an offence committed in Britain or the North of Ireland andvice versa is unique to these countries. We already have something special to demonstrate to the world — if we need to demonstrate it — that we are not a haven for terrorists, reverting to what Deputy McGahon said. No other countries have that kind of arrangement. We have it already and, what we are proposing to do now is an addition to that. We are going to go much further without any regard to what are our obligations to our citizens having regard to the practices to which I have been referring in England or the North of Ireland. It is time we were sufficiently confident to tell the British Government of any one day, who try to imply that this part of this island has been a haven for terrorists, that the only consequence of violence we suffer from is that of the injustices in the North of Ireland which spill over here. Perhaps we do not suffer nearly as much as do the people in the North of Ireland in one way or another.
I want to tell Deputy McGahon or anybody else who would make the case about the Criminal Law (Jurisdiction) Act provisions that I have visited the North very many times. I made a point of visiting not just Nationalist areas but Unionist areas as well and of speaking in particular, to Unionists in various places. In the course of one such visit about three years ago to Saint Anne's Cathedral in Belfast — this gives the lie to what Deputy McGahon and others suggest — there was a case being made to me by a number of people in the crowd that evening that Ireland was regarded as a convenient haven that, as Deputy McGahon put it, they are walking the streets of Dundalk and Dublin. Someone in that crowd, perhaps not surprisingly, put it just like that. When somebody like Deputy McGahon is saying it, is it any wonder that they will say it too? It was said that it was about time we did something to shift these fellows to where they would be dealt with. A person I did not know then but have got to know since, who was not in uniform, got up in that crowd that evening in Belfast. He said he was tired of listening to this misrepresentation of the position. He was tired of hearing the Republic being blamed in respect of people alleged to be walking the streets of Dublin, Dundalk or anywhere else. He said the problem with regard to those people was that they, in the North of Ireland, did not have the evidence to bring them to trial. He said if they had the evidence to bring them to trial, by way of the extra-territorial provisions, they could and would be in a position to get convictions. It was not the lack of extradition but the law of evidence. That was none other than Sir John Hermon, Chief Constable of the RUC who publicly stated that in Saint Anne's Cathedral in Belfast in my presence about three years ago. To his credit, he was not wearing uniform that evening. I know that he has publicly stated it at another conterence in London attended by my colleague, Deputy Lenihan, a conference organised by the Oxford Union.
I do not suppose that Sir John Hermon would be recognised to be, if you like, a total supporter of the attitude of Governments here. But the fact that somebody like him put that publicly on the record underlines the fact it is not the lack of extradition that is the problem, but rather the lack of evidence. If there is not evidence we should not extradite people to be subjected to questioning in a way that will bring forward the kind of evidence that would never be acceptable here. That is what we are determined to guard against in this case.
If we enter into arrangements with countries with regard to extradition we should do so on the basis of what is known in the law, whether in regard to ordinary contract law or international law, as mutual consideration. That means basically that there is a fair exchange, there is a consideration for what one does given by the other and the two parties stand on equal footing when they enter into those contracts. We are now entering into a contract with Great Britain under which we will extradite without having the qualification ofPrima facie evidence in respect of those persons. We are going to do it that way. Let us look at the fact that Britain will not extradite without having prima facie evidence. They require prima facie evidence before they will extradite to us but we do not require Prime facie evidence before we extradite to them. What nonsense that we say, “It is all right, do it your way and we will do it your way to suit you but we will not do it the same way if it does not suit you”. That is a total repudiation of the basis of international law, and the Minister tells us that they are reviewing the position in Britain and that they hope and expect fairly soon that the condition of prima facie evidence will not apply there. Live, horse, and you will get grass.
Our position is not to be determined by what they say they intend to do or what they are considering. Even if we were determined to implement extradition immediately and directly, it should be clearly on the basis that we want to see the same balance, the same laws, the same conditions apply with them as with us, and this Government simply failed to do that. Fianna Fáil are saying in respect of our citizens that at least for as long as it lasts in Britain — who for years did not mind being the exception — we wantprima facie evidence before we extradite people to places where we know police questioning practices are reprehensible. That even strengthens the case. I am not saying they are reprehensible universally, but in cases where some Irish are hauled in for outrageous events — Deputy Andrews will be able to elaborate on this because he has been directly and personally involved for a long time — we insist on implementing that position.
Someone has said that that was not there in 1965 and that we signed a convention on extradition in 1965. There have been major changes since 1965 in Northern Ireland, in Britain and in all that has happened between Britain and Ireland. There were no Diplock courts in 1965. There were no Birmingham Six in 1965. There was no Prevention of Terrorism Act in 1965. There were no Bloody Sundays in 1965. I am not saying that there was no injustice in the North then, but much that has happened since must alert us to the fact that what existed in 1965 would have been acceptable when Seán Lemass and Terence O'Neill were at least attempting to bring down the barriers and the Governments were trying to get together. The climate in 1965 was very different from the climate now and on that basis we must take account of these changes and ensure that if we are going to extradite now we do so only if we are satisfied that the extradited will be given the protection that we are obliged by law to give them here or there.
I want to make one or two references to personal experiences which are minor by comparison with what other people have experienced. The Prevention of Terrorism Act is directed particularly at the Irish. Apparently they are the ones who for the purpose of what was introduced as a temporary provisions Act are to be guarded against. I mean the Irish collectively. Almost every Irish citizen, bona fide and otherwise, people who go over and back regularly are, to say the least of it, at the risk of being subjected to the rigours of the Prevention of Terrorism Act at the airports, notably Birmingham. If we know that fact then we ignore it. If we know that they are treated differently from others then we ignore the fact. If we know that they are made to feel almost guilty or criminal simply by being extracted, even when they are extracted from the company of the business people they are travelling with, we ignore what they have gone through. Cases have been made to the Irish Government about this for some years and I can testify that this treatment does not except Members of this House. What would happen if we treated an MP, a former member of Government, leave out any other involvement he may have had, of the British Parliament coming into our country in the way I was treated in Birmingham not so long ago? I ask, not for myself but as a Member of this House and a former Member of Government, if that in itself does not illustrate in its own little way that others have been subjected to much worse, that there is a collective view towards the Irish no matter who or what they are. I make no bones about my personal worry because I was not concerned in the slightest. What a hue and cry there would be if we hauled in some former foreign minister here at Dublin Airport and kept him there for three quarters of an hour trying to satisfy ourselves that he was who he was until be produced evidence that everything that he would say and do would clearly demonstrate that he was not Walter Mitty on holidays.
In relation to Britain's attitude in this area I recall discussions with the current British Prime Minister in 1979 in the course of the regular bilateral discussions that Irish Governments have had with British Governments. I recall her making the case in her simplistic way, and I give not the tone but the quote: "Murder is murder and must be treated as murder." That was her statement. I reminded her on that occasion that funnily enough, the exceptions for political offences or for the protection of political offences — I am not making any protection for murder — were established in her court and had only in the last two or three years been expressed by her then Attorney General in the House of Commons. She was not aware of that fact. Her first reaction was to call her Attorney General to find out how and why he should say this. If murder is murder, does that mean that what was done on Bloody Sunday in Derry was murder? It was closer to it than some of the things that people have been accused of. What was done on Bloody Sunday here? Was that murder? Would the British Prime Minister, Mrs. Thatcher, or anybody else say that of course it was murder and that we are going to punish those concerned? No you can have convenient exceptions if it suits you. Nobody in this House is going to condone murder or anything of that nature, but people can speak only for themselves. Offences motivated by poiticial issues — political offences so-called — have to be treated in terms of trial, that is all, under the practices that have long since been established in international law.
That is not to say that people will not be tried. The rule of law isaut dedere aut iudicare— either to try or to hand over. There is no reason between Britain and ourselves why we cannot try here for offences that could be said to be murder or terrorist offences or whatever. We can do it. We should do it because we know the principles of our own law. We know the protections that apply in our own law. This legislation ignores the fact that we have built up in recent years the most respected practices — although there will be exceptions everywhere — in regard to police investigation, court preliminary issues and court trials. We should at least ensure that our citizens will be given the benefit of the same if we extradite them elsewhere.
To implement this understanding in the Anglo-Irish Agreement — and the Minister says clearly that this is part of the process of the Anglo Irish Agreement — we just do not change relations between Britain and Ireland as is proposed here. We are going to go much further than that. We are going to change relations with all of the countries that have signed the European Convention on Terrorism. As part of the process of implementing the Anglo-Irish Agreement we are going to sign the convention without reservation in respect of all of the countries that have signed this convention. We totally agree with the need, as has been stated by our Leader and everyone else, to combat international terrorism and to work together as a family of nations to deal with it, but what are we doing in trying to implement that? We say to them, "It does not matter whether you refuse" and there are so many of them as Deputy Woods indicated.
There are about eight who said they will not extradite their own citizens. We will extradite our citizens as part of the Anglo-Irish Agreement no matter that the recipient country's process of trial is different from ours. I will not name the countries that are different in case I offend them but their process of law is so slow and cumbersome that people can be imprisoned for two years before trial. It does not matter about the reservations which have been entered, we will extradite without reservation, as part of the Anglo-Irish Agreement process. Is not that a nonsensical decision for any Government? If we are to be respected we should introduce the same reservations in respect of other countries as they might have in respect of us. Reservations are essential because the processes of trial in some jurisdictions are so slow and cumbersome and not up to our standards. Even the nature of a criminal prosecution is different. There is not the presumption of innocence in all European countries as there is here.
The Government seem to have overlooked that. Would any of these countries criticise us for entering reservations when they have done so themselves? Of course, we have to be nice to Mrs. Thatcher and show our anxiety to work something out. We will sign away all our rights in relation to other countries who insist on maintaining their rights. What kind of nonsense is that? The Government should reflect that the consequences of that must be a matter for serious concern and that it is unacceptable to us.
The six months delay before this comes into effect does not apply to what might happen in England but only to what may happen in the Diplock courts and in the administration of justice in the North. Do we expect dramatic changes in the next six months in an area which has been categorised around the world as being an area of repression and injustice in the last 60 years? Do the Government believe that police practices and trial procedures will be changed in six months? Even if they did should they not have also taken into account that we are also talking about extradition to Britain? Are we making no condition about a provision of six months for a change of practice in Britain, for instance in relation to the Guildford and Birmingham cases? Suppose there is not a new trial, do we sign this at the end of June? That would endorse what we, the European Parliament and the world have condemned. That is an untenable position for a Government of a soverign State whose first responsibility is to its own citizens.
The judgment in the McGlinchey case, particularly the arbitrary dictum of Chief Justice O'Higgins in that case, will not be recalled as being one of the great statements of the principles of law. Most students of law and most people concerned with the principles of law would do it a great favour if they confined it to oblivion. Some principles which have never been restated, were stated in that case. That judgment seemed to accept that if the offence for which the extradition is sought is more serious than the offence committed in this jurisdiction, one makes a balancing judgment to extradite because that offence is more serious. In that case we had a flagrant breach of the law. A person was found inflagrante delicto, taking on the forces of security and engaging them in open shoot out. If we had any respect for ourselves we would have tried him here for that. But instead we extradited him to the North because there was a story that the authorities there had evidence in respect of a more terrible and horrifying offence, the killing of an unfortunate old lady in the North. There was no evidence in that case and subsequently the offender was returned for trial here. All lawyers recognise that that was not the high point of judicial interpretation and that it was not in line with the principles laid down by some of the most established and respected judges of the Supreme Court, for instance, Cearbhaill O Dálaigh, Chief Justice Brian Walsh, and the current Chief Justice Tom Finlay whom we were privileged to appoint to the judiciary despite the fact that he had sat as a Fine Gael Deputy previously. We should correct that state of affairs. Only the Dáil can ensure that such decisions are not left open for the courts. If we laid down the law and said that people can only be extradited where there is a prima facie case then the scandal of the McGlinchey extradition could not have arisen. That is one central example of the need to enter this reservation for which Fianna Fáil have argued so persuasively. A nation that does not protect its citizens as well as asserting itself against any violence, has lost the very fundamental principle it should follow.
I would refer to some established principles that have been laid down, including one which is not incorporated in this law. I will quote from what is recognised as perhaps the best and most informed publication on this whole issue, a book calledThe Political Offence Exception to Extradition, by Dr. Christine Van de Wijngaert. This book was published in the Netherlands in 1980 and has won numerous prizes as being the authoritative statement of the whole question of political offences and the exceptions for political offences. This Minister has recognised that this legislation, rather than applying the existing exclusion, or protection, for political offences, or offences associated with political offences is now going to narrow that definition in another way in accordance with this Convention. What we are doing here is narrowing the fundamental protection for political offences. I do not condone crimes of violence but this is what the distinguished author had to say in respect of this Convention. The book says on page 89:
There is indeed a basic need to protect the individual against being extradited to a state where he is liable to "persecution". This need is all the more apparent today, because there is a continuing tendency to restrict political asylum with respect to certain offences. Exceptions to the political offence exception are, it is true, introduced in order to make better administration of justice possible, but, on the other hand, they deprive the political offender of an important protection. Therefore, with regard to a continually shrinking political asylum, humanitarian asylum as an exception to extradition should be emphasized instead.
That is about as clear a statement of apprehension as you could get. We must guard against extraditing people to a state where they are liable to persecution, not prosecution. That is why I say that in countries where there are such police practices, court practices, Diplock courts, questioning practices and so on it is time we said "no". Even the international legal authorities are totally with us on that.
I should like to quote again from the same person where on page 135 of the book she states:
Therefore, it is regrettable that the drafters of the 1977European Convention on the Suppression of Terrorism have persisted in using the latter formula.
She calls this formula "a legal fiction". She states:
In this Convention, elements which in fact are relevant to theextraditability of an offence, such as its seriousness or its dangerousness, have been advanced as criteria to determine the nature of the offence in question. In this completely illogical way of reasoning, article 13 of the Convention provides that States making a reservation with respect to article 1 undertake ...
She goes on to quote another authority, Fr. Hammerich, who was one of the greatest professors of jurisdiction in Europe, which is as follows:
Fr. Hammerich's observation with respect to the depoliticizing formula, made more than half a century ago, is still relevant as to this brand new convention:“a solution est juste, seulement le raisonnement ne l'est pas” (The solution is correct, the reasoning is not.) Acts of Terrorism do not become less political because of the above enumerated circumstances.
That is the view of, perhaps, the most distinguished international writer in this area. She suggests that what should be done is to approach it in a different way. She said the formula of the exception to the exception for political offences would at least have been more honest, less ambiguous and more logical than trying to introduce new categories which seems to suggest that there are certain categories of offences which take them outside the area of protection from extradition.
She goes on to state on page 152:
TheEuropean Convention on the Suppression of Terrorism indeed constitutes a serious restriction on political asylum, and may, as has been argued, constitute the end of political asylum in Europe.
She says that in respect of a convention, the principles of which we are prepared to support. She is a writer who sees all the pitfalls which can follow. She mentioned during the course of other arguments that the very first thing which was done in Germany and in Italy under the Nazi and the Fascist regimes was to abolish the protection of political offence. She argues that when you start to chip away at basic fundamental international law which has been well established for the sake of meeting a particular position at a particular time, you are going to undermine the basic thing you are trying to protect. I do not think the Government have even begun to consider that.
Finally, let me say that that is the basis on which we want to see the protections for which our spokesman have argued here. If we have agreements with other countries, they should be entered into on the same basis; if they can enter reservations, we can enter reservations. I hope all sides of the House will agree that what we want to ensure is that we act effectively against crimes of violence and terrorism, international or otherwise, and we do it within the rule of international law. I am afraid the Government's approach is doing quite the opposite.