Dáil Éireann debate -
Wednesday, 30 Nov 2005

Vol. 611 No. 2

Leaders’ Questions.

Mr. Kenny

A year ago this week, the secret deal, done between the Government and the IRA in respect of the release of the killers of Detective Garda Jerry McCabe, was exposed causing widespread anger among the public. It was a serious error of judgment on the Government's part. We have since learned of the Government's proposal to allow non-elected individuals to the House to speak to it, which would be a dilution of the institutions of the State. More recently, we learned of the Government's decision to proceed with presidential pardons for terrorists sought in respect of offences in the State. The Taoiseach's claim on Monday that this was well-known after the Weston Park discussions in 2001 is simply untrue.

The proposition for presidential pardons, which are irreversible and irrevocable, was never mentioned after the Weston Park talks. It was accepted that this matter would have to be dealt with one way or the other. I believe there is another way. Will the Taoiseach explain why the Government has chosen the particular route of presidential pardons? I consider it an abuse of presidential pardons to deal with terrorists who have never been convicted.

Article 13.6 has never been interpreted before. Presidential pardons have only been used on three occasions, twice in the 1940s and once in the 1980s, and then in respect of what were deemed to be clearly unsound convictions. In this proposal, no conviction or admission of guilt has been seen. Will the Taoiseach publish the legal advice which was made available to the Government upon which he is basing this decision? Is the Taoiseach's decision to proceed down the route of presidential pardons the result of discussions he had with Gerry Adams at several private meetings during the summer? Was this matter discussed at those meetings? Is that the reason another side deal, that of the Government choosing presidential pardons, will be followed?

The Taoiseach

For a long time, Deputy Kenny has decided to be in favour of the Good Friday Agreement but to oppose everything that comes out of it. It is a tactic he has pursued for 12 months. In 1998, we were very clear that certain prisoners would be released. The only exceptions to those prisoner releases were the murderers of Detective Garda Jerry McCabe and those who injured Detective Garda Ben O'Sullivan. We said we would deal with this issue as part of a total act of completion but not otherwise. There is quite a number of people who murdered gardaí. The families of those gardaí have had to go through the trauma associated with this and they accepted we would release those prisoners in 1998 and 1999.

The participation of Northern MPs on a cross-party basis in the Houses of the Oireachtas was documented in a report compiled by the House, including Fine Gael Members, in 2001. It was debated in the House and agreed to by the then leader of the Fine Gael Party. I resent the Deputy's continual accusation that these are part of some secret deal. Neither of those issues was part of a secret deal.

The issue of on-the-runs was part of the discussions which took place prior to the Weston Park talks, was agreed there and was part of the Joint Declaration in 2003. The legal basis was not worked out then. That is the only point on which Deputy Kenny is correct. It is a matter of course for each jurisdiction to bring forward proposals to deal with the issue within their own legislative or constitutional frameworks.

The House is aware the Government intends to deal with these cases by advising the President to use her powers under Article 13.6 of Bunreacht na hÉireann. An eligibility body will be established to determine whether individuals are qualifying persons, subject to the condition that the person is not affiliated to or supports an organisation that is not maintaining a complete and unequivocal ceasefire. The eligibility body will submit its findings to the Minister for Justice, Equality and Law Reform who in turn will submit the cases to the Government, with a view to recommending to the President that her powers under Article 13.6 of the Constitution be used. It is implicit that in the operation of such a scheme, in each case the eligibility board, the Minister for Justice, Equality and Law Reform and, ultimately, the Government must be satisfied that these arrangements should apply. I have a longer note on the matter, effectively the Attorney General's advice, which I would be glad to forward to the Deputy.

Mr. McCormack

The Taoiseach can go ahead with the secret deal.

Mr. Kenny

That does not amount to the publication of the legal advice on the matter received by the Government. The Taoiseach claims that neither this matter nor that of non-elected individuals addressing the Dáil was part of a secret deal. That may be so but it gives a clear indication that there were secret deals. It seems to the public that when it comes to a choice between justice for victims and appeasement of Sinn Féin, Mr. Adams seems to win on each occasion with the Taoiseach. While I accept this matter has to be dealt with there is a much better way for the Executive to deal with it.

There are 45 prisoners on release from Portlaoise Prison, each of whom is on licence. I would have expected that the Government, rather than dragging the Presidency down a route of dubious constitutionality, would have made arrangements for the persons in question to attend before a court to proclaim their guilt before being released on licence which could be revoked if, under unfortunate circumstances, matters were to reverse. A presidential pardon is irreversible and irrevocable.

As Article 13.6 of the Constitution has never been interpreted, this approach appears to present dubious constitutional consequences. A much better approach would be to make arrangements for persons to attend in court and proclaim their guilt. To proceed on this route will, it seems, result in an attempt being made to turn Áras an Uachtaráin into something akin to the court of Queen Elizabeth.

An Ceann Comhairle

Before the Taoiseach replies, I point out that while it is in order for the Deputy to raise the concept of presidential pardons, the President, in accordance with long-standing precedent, should not be referred to in the debates of the House. Under the Constitution, the President does not have——

Mr. Kenny

I apologise if I used the word "President", by which I meant the Presidency and the Office of the President.

The Taoiseach

I did not answer Deputy Kenny's question as to whether this process was negotiated or agreed with Gerry Adams. There was no discussion about the process. The issue of on-the-runs was agreed back in 2001 and 2002. The exercise of the power of pardon does not undo the past. In a case such as that of the OTRs, it does not turn back the clock of time and treat what occurred as if it never took place. It does not undo the wrong. In reality, the power of pardon in the case of on-the-runs means they will not be prosecuted, imprisoned or fined for their wrongs. It is to be recalled that a similar consequence arose from the Good Friday Agreement in relation to convicted and imprisoned prisoners.

The power of pardon is separate and distinct from the power to commute or remit a punishment. It is only the latter which requires a conviction. Moreover, the power of pardon is not an administration of justice but an act by the President acting on the advice of the Government.

Ms O. Mitchell

It is bad advice.

The Taoiseach

The Government makes the decision and informs the President's office. It is worth looking at the experience of other countries which operate legal systems similar to ours. The Attorney General has examined this matter very closely. In the United States the President exercises his power of pardon frequently.

The Government will effectively resolve this issue and comply with the commitments made at Weston Park after the British Government has addressed the issue through legislation. In accordance with its commitments at Weston Park, the Government will resolve this matter.

It has been made clear repeatedly, including, I believe, at the time of the Good Friday Agreement, that the relevant provision did not apply to those charged and convicted of the killing of Detective Garda Jerry McCabe or the wounding of his colleague. This will continue to be the position of the Government.

Mr. Rabbitte

The Taoiseach does not appear to acknowledge the rising public concern, North and South, about this issue and the succession of secret bilateral deals, details of which are still emerging. How can he make the comments he has made in the wake of the House of Commons debate? I will cite, for example, the words of SDLP leader Mark Durkan in the House of Commons regarding the negotiations preceding the Good Friday Agreement:

People asked whether there would be an amnesty or a wipe-out or whether the files would be closed. Assurances were given by Minister upon Minister, including the Prime Minister and the Taoiseach, that all the outstanding cases would continue to be pursued and that those who had issues to face would be brought to court. It was said that, if convicted, they might have to spend only two years in jail, but they would appear in court, they would be convicted and they would spend time in jail. That is what the victims were told at that time. It was on the basis of that expectation that many people struggled to vote in favour of the agreement and did so.

How can the Taoiseach dispute Deputy Kenny's remark? The Minister for Education and Science, Deputy Hanafin, is shaking her head about the secret deals. She must have brushed up on the matter since her performance on television on Sunday night when she was at sea on it. I have sympathy with her and understand the reason for her performance.

In 1993 the Taoiseach introduced a tax amnesty under which it was mandatory for offenders to come forward and confess. Can he imagine introducing an amnesty — the arrangement for on-the-runs is an amnesty — which has no mandatory dimension and allows people to continue to conceal the crime they have committed? Only if they are caught at any indefinite stage in the future can they resort to using the amnesty. The proposal is indefensible. While the Taoiseach indicated it was known at Weston Park that fugitives needed to be dealt with, never was there any mention, nor is there any in the United Kingdom legislation, of the ambit and scope of the measures introduced.

Further, it was never clear that the measure would have application to the security forces. As a result of this side deal with Sinn Féin, we now find that the arrangement covers members of the security forces who are guilty of dozens and dozens of murders in Northern Ireland, were not intended to be included in the arrangement and were never referred to either in the Good Friday Agreement or at Weston Park. The Taoiseach informed me last week that he made clarificatory requests to the British Government about the Hain Bill. He either made an input or did not make an input. He was either involved in the side deals with Sinn Féin or not involved in them. Which is it?

The Taoiseach

I repeat again that the question of on-the-runs is not a side deal. As part of the Weston Park agreement, it was negotiated that OTRs and many other issues would be addressed. The question was included in the acts of completion and all the relevant discussions in 2001 and 2002. The process of dealing with the issue, namely, the introduction of legislation in Britain and the use of Article 13.6 here, were the only issues not worked out at that stage. It was made very clear that the issue of OTRs would have to be dealt with as part of the logic of releasing 444 prisoners who were convicted at that stage and subsequently released over a short period. It was not on the basis of any side deal that this arrangement was made.

We have examined for some considerable time how best we could deal with this matter and we have exchanged information with the British Government on how we intend to do so. There is an agreement that when the House of Commons is finished with the legislation, which I understand passed Second Stage the other day, the Irish Government will deal with the matter. We will draw up the scheme over the next few months. It is expected the legislation will be passed at Westminster by the end of March and we must have our scheme finished by that stage.

Deputy Rabbitte asked if we had an input. He is correct. We made our input but we did not believe that the issue of British soldiers would be included in the Bill. This was not made known to us or discussed with us. We were only informed about this provision around the time of the publication of the Bill. It did not form part of the Weston Park agreement or the Joint Declaration. I did not agree with the British Government's decision to include the issue in the Bill. As the Deputy will appreciate, however, we do not write British legislation, we make an input to it.

The issue of OTRs, as difficult as it is, must be dealt with. I say to Members of the House, because it is always easy to forget, that the reason for all the arrangements we have put in place has been to try to end the violence, killing, mayhem and bombing in Northern Ireland, and to bring an end to IRA military activity and criminality. If we did not deal with some of these issues, there would not have been a hope in hell or a chance in a billion of ever getting to this point. I do not like to say this so bluntly but one must decide which way one wants it. Either one deals with these difficult issues or one has the past. I opted for the former approach and will never apologise for doing so.

Mr. Rabbitte

The Taoiseach's last point is a strong one with which I entirely agree. The question he must answer, however, is what kind of an amnesty does not require people to come forward and admit the offence of which they are seeking to be released. I suggest that the alternative is an agreement which requires that the people in question come forward, plead guilty, be convicted and be released. It seems the only reason the Taoiseach is going down the road of a presidential pardon is because he wants to avoid the circumstances that gave rise to charges of double standards the Government had with regard to the killers of Jerry McCabe. We are in this position because the Taoiseach could not introduce legislation in the House that excluded Jerry McCabe's killers. The Taoiseach is now pleading American law, citing the case of President Gerald Ford who pardoned President Nixon.

An Ceann Comhairle

The Deputy's time has concluded.

Mr. Rabbitte

The Taoiseach wants to set that kind of precedent in our jurisprudence and constitutional law. If the Taoiseach looks at the outrage in the House of Commons, which ran right across parties from the DUP to the SDLP, he cannot defend it. He has now conceded that in the deal entered into with Sinn Féin, where members of the security forces get off scot-free, which raises fundamental questions about the commitment to the cold cases review——

Caoimhghín Ó Caoláin

There is no such deal.

Mr. Rabbitte

These people are getting off scotfree and we are now inviting people here to hide for as long as they can, but if at any stage indefinitely down the road, in ten or 15 years' time, they are caught they will then have an insurance policy to which they can resort. All they have to do is apply for the benefit of this amnesty, which is ill-considered. I do not dispute the substance of the point the Taoiseach is making about having to draw a line in the sand at some stage, but to use the presidential pardon in this fashion is not the way to go about it.

The Taoiseach

A number of points have been made, including those by Deputy Rabbitte, and I have no doubt that all valid points will be considered. I am not being unreasonable about this. Our examination of the matter included the legal position. To the best of my knowledge, although I may be subject to correction, I am almost certain that it was not just the issue of the late Jerry McCabe which decided that this was the best legal way to go. I do not think that was the consideration and although I am subject to correction, I am fairly certain of that. We have a number of months in which to deal with the matter, but this is considered to be the best way to proceed, having considered the legal system. If valid points are made I will certainly not rule them out in advance. The Deputy will appreciate, however, that this matter has been examined for some considerable time because it has been known since 2001 that this must be dealt with. It was in the declaration two and a half years ago, so much legal thought has gone into it.

Whatever else I accuse Sinn Féin of, and I have accused them of many things, I do not think they were in a side deal trying to arrange amnesties for British soldiers. That certainly was not part of any discussions. As I said earlier, the position was that the British Government decided to include other matters in the Bill. My involvement in the discussions was on issues concerning OTRs. The British decided they had to do those things and they are doing so, but I will not sign up to matters on which I had no discussions. We dealt purely with the OTR issues. If valid points are made, however, I will always examine them.

Mr. J. Higgins

A few days ago, two Traveller children, Michael McGinley, aged three, and his brother Joe, aged 22 months, died tragically in a devastating fire in their caravan in Clondalkin. It was a tragedy that shocked and saddened people around the country. I do not wish to speculate on the cause of the fire, although there was a suggestion in The Irish Times yesterday that it may have resulted from families in one part of the site being forced to make amateur connections to the electricity power supply. The tragedy has focused attention on the fact that substantial numbers of Travellers still live in the most appalling conditions on roadsides and unserviced sites throughout the country. In this morning’s The Star newspaper, a reporter wrote about visiting just a few such sites. The report quotes a mother in County Laois as saying “We are living in a site not fit for dogs”, adding that shower units are like ice boxes. “You couldn’t send a child out to the units to take a shower in that weather”, the woman was quoted as saying. The newspaper also reported on other similar examples.

Last January, I visited encampments of landless people in Brazil. The sum total of the facilities were black polythene covered shelters, dirt tracks, cold water taps and communal outdoor toilets. Is it not shameful in the extreme that in one of the richest countries in Europe, families, and especially innocent children, are living in squalor, not far removed from that of the poorest people on earth? Last Sunday, the Taoiseach said he believed that State agencies could play a more proactive role in supporting Travellers to develop skills and access employment.

An Ceann Comhairle

The Deputy's time has concluded.

Mr. J. Higgins

That is after eight and a half years of Government led by the Taoiseach. Accommodation does hold the key to the future of Travelling people's health, education, employment and particularly the children's future. What hope do Travelling people have in regard to obtaining accommodation, when yesterday the Minister of State with responsibility for housing could not tell Deputy Gilmore how many people were on housing waiting lists around the country, let alone the situation of Travellers? Can the Taoiseach be specific in stating what Government action will be taken to speed up the provision of appropriate accommodation and to put those State agencies, to which he referred, in emergency mode to deal with the issues of developing skills and gaining employment?

The Taoiseach

I wish to express my sympathy and that of the Government with the McGinley family on the death of their two children last Sunday afternoon. The two boys, aged three and 18 months, died in that South Dublin County Council halting site at Oldcastle Park. It is a huge tragedy for the family as well as for their friends and neighbours. The circumstances surrounding the tragedy are being investigated by South Dublin County Council, the fire brigade and the Garda Síochána. Pending the outcome of these investigations it would be inappropriate to issue any detailed statements. I do not want to get into any speculation. It would not be fair to the family concerned to do so this week, but these issues will be documented in due course.

I am aware the county council has been working to upgrade what has been a very difficult site. I have read about the circumstances as to why it is considered to be a difficult site, but I do not want to go into that either.

South Dublin County Council has been one of the two most proactive county councils in the country in this regard. South Dublin and Clare county councils are the two pilot councils in trying to provide upgraded accommodation for the Traveller community. They have played a leading role in this regard. The South Dublin county manager has been an outstanding advocate of improving facilities under the aegis of the Government's high level group and the integrated provision for Travellers. This year, I have attended conferences and meetings arranged by the Minister of State, Deputy Fahey, at which all councils were represented. The South Dublin county manager has documented the improvements that have been undertaken.

The Deputy is correct in quoting what I said when I opened the centre in Cork last Sunday morning. I have opened many such centres for the Travelling community, which provide crèche facilities along with health and education facilities. This year, some €108 million has been spent on upgrading and providing facilities. That sum excludes the provision of housing. The Deputy is aware of the powers that councils have with regard to housing. It is within their remit to co-ordinate a housing plan and I urge all councils to do so.

There are issues concerning this particular site which both the Deputy and I know about, but in fairness to the bereaved family I do not think it is for me, or the day, to go into that.

Mr. J. Higgins

The issue is not really about this site, but about the general conditions in which Travelling people live around the country. There are social problems in every community that make the resolution of specific areas more difficult than others. We are speaking about a general problem and a general approach.

Is it any wonder that the accommodation and land needs of the Traveller community have lagged behind, particularly in the greater Dublin area, when we see in this morning's newspapers the gallery of rogues, many of whom are members of Fianna Fáil, paraded in front of the Tribunal to Inquire into Certain Planning Matters and Payments yesterday, people who facilitated large speculators in land rezoning scandals in the 1980s and 1990s in order to exorbitantly increase land prices? They were far from providing for working class or Traveller communities. The priorities of those in positions of power in Dublin were other than taking care of vulnerable, Traveller or working class communities.

An Ceann Comhairle

The Deputy's time has concluded.

Mr. J. Higgins

Does the Taoiseach agree it is a shame that almost 1,000 families, 10% of the Traveller community, are still on roadsides or unserviced sites?

Mr. N. Ahern

The Deputy's numbers are wrong.

Mr. F. McGrath

The Minister of State can be guaranteed that the numbers are right. The Deputy got them last night.

Mr. J. Higgins

If the Government gets another five year term, what would the Taoiseach be prepared to say at the end of it in terms of guarantees? Would every Traveller family be accommodated in appropriate accommodation and would children be secure there, in education and in future employment? Does the Taoiseach agree this society and its growth rates should be able to guarantee this at least?

The Taoiseach

On the general issue, as a requirement, every local authority in the country adopted a five year Traveller accommodation programme and was funded for the period up to last year.

Mr. Brennan

Correct.

The Taoiseach

A total of 1,400 units of accommodation for Travellers were provided or refurbished in the first four years of the programme, which is by multiples higher than anything that had happened in the previous 20 or 30 years. Provisional figures indicate that, at the end of last year or at sometime during the year, the number of families on unauthorised sites formerly referred to as roadside was less than 800 compared to close on 1,300 before the scheme started. The reduction of numbers in unauthorised sites occurred in a period where there was an increase of 671 of the overall number of Traveller families, which was almost 1,300. With almost 700 extra families going in, we brought back the figures to less than 800.

A total of €100 million in capital funding was provided to the local authorities in the first four years of the programmes for new and refurbished halting sites and group based houses. A further €40 million was available last year. The overall figure for services this year is over €100 million. This is in addition to expenditure on standard local authority houses provided to Travellers under the local authority housing programme which is a very good scheme.

In October of last year, the Cabinet committee on social inclusion established an interagency action group with the remit to ensure the relevant statutory agencies involved make progress in delivering services across the Traveller sites. The Minister of State at the Department of Justice, Equality and Law Reform, Deputy Fahey, has been extremely active in trying to drive co-operation and these efforts.

An Ceann Comhairle

The Taoiseach's time has concluded.

The Taoiseach

In addition to ensuring a cohesive and proactive approach to Traveller issues, the group has also provided a mechanism for driving delivery services to Travellers where the rate of progress is unsatisfactory. We will continue to do that throughout next year, as indicated in the Estimates a few weeks ago.