I move: "That Report Stage be taken now."
European Convention on Human Rights Bill 2001: Order for Report Stage.
On a point of order, I attempted to raise a point of order on the Order of Business in relation to Report Stage of this Bill. It concerns a matter arising out of Committee Stage. As I understood, there was agreement on all sides to try to find a remedy to the question of a pardon. This matter relates to section 5. I would have tabled an amendment if I had known that the Minister was not going to come back with an amendment of his own. The amendments which have been tabled are short, technical amendments and there is no reference to this matter. It has left us in an unsatisfactory position. I thought there would have been a development on this issue. There is precedent for pardons to be granted, that is, in the context of the legislation arising out of the "Tallaght two" case – the 1993 Act. I would have thought the Minister would have come up with something along those lines but, unfortunately, he has not. I find the situation unsatisfactory and it makes it difficult to proceed with legislation without this matter being addressed in a formal fashion. Perhaps the Minister might comment on that.
As Deputy Costello said, it is true that I said I would examine the issue but I am satisfied that the power of pardon conferred under the Constitution on the President is one which can be exercised on the advice of the Government. It is an Executive matter under the Constitution and is not something which should be legislated for in this way. It is doubtful whether it would be advisable or desirable that an attempt should be made by legislation to coerce the President or the Government to give the President advice to exercise the power of pardon in any particular circumstance.
The 1993 Criminal Procedure Act specifically makes provision for the power of pardon to be exercised by the Minister for Justice. As I understand, it was brought in on foot of the Tallaght case where there was a perceived miscarriage of justice. Sections 2 to 6 allow the application of the courts, while sections 7 and 8 offer an alternative mechanism to apply to the Minister for Justice with a view to pardon. He may pro ceed through a committee or some other mechanism and may grant a pardon in these circumstances. Precedent has already been established and the Minister would not be creating precedent if he went along with what was all-party agreement, as I understood it, on Committee Stage. Both the Government parties and the Opposition felt that something should be included in the legislation which would seek to resolve the difficulty we are encountering.
Acting Chairman
Are you opposing the question that Report Stage be taken now?
I am opposing it until we get clarification on this point which was the one serious point on which the Minister was prepared to make some concession towards the Opposition. As it stands, we have got not a concession, good, bad or indifferent, from the Minister, unless he makes some concession at this point.
It arises under the amendments to section 39 and I will deal with it fully then. I do not think it is reasonable or proper to interrupt the debate now to deal with a particular section which is of interest to only one Deputy.
It is not just of interest to one Deputy. This was discussed by Deputies from all parties and, as I understood, there was consensus that this was a matter deserving of support. It is not just of interest to one Deputy but to Deputies across the board. I wish to clarify that, so the Minister—
Acting Chairman
I am going to put the question.
Perhaps I could help to clarify the matter by reading Article 15 of the Constitution. It states
The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities.
I understand that the only circumstance in which a law can confer the prerogative of mercy on anybody else is in respect of commutation and remission. The right of pardon is vested exclusively in the President, who, under the Constitution, operates exclusively on the advice of the Government. I do not understand from my knowledge of the law – and nobody has suggested otherwise to me – that it is possible for me to create a statutory right of pardon or that it is possible to direct by legislation how the Government should or should not exercise that power.
Acting Chairman
Is it agreed that Report Stage be taken now?
I have a suggestion.
Acting Chairman
I am putting the question.
I have a suggestion that will help surmount the problem that has arisen. I understand the point being made by my colleague Deputy Costello. It is an issue that might be incorporated into the discussion prior to our voting on the Bill. If it is acceptable to my colleagues, I suggest that we carry on as we are and allow the issue to be debated somewhat further and perhaps voted on in the context of one of the amendments already tabled.
Acting Chairman
The Bill will be discussed by way of the amendments. Is it agreed that Report Stage be taken now?
No.
Question put and declared carried.