I have listened with very considerable interest to the contribution made by Senator Connolly. I am happy to see him here in the Seanad and I look forward to hearing him speak frequently in our debates.
I thought that the general line of his speech was rather strange. As I understood him, and I may be misinterpreting his speech, it seemed that he was saying that he did not like the Bill. But he was urging certain Senators to accept this Bill, not because they liked it or because they thought it was a good Bill, but in order not to rock the boat of Coalition. Of all the reasons for supporting a Bill of this kind, this seems to be the worst. He also suggested on a couple of occasions that there was no real reason for opposing this Bill. He said he had been assured by the Minister that there was nothing in the Bill directed against the working class.
A Bill of this nature, which many of us believe flies in the face of all the ordinary tenets of criminal jurisprudence, is a bad Bill which ought not be supported irrespective of what section of the community may be affected. All of us are equally Irish. All of us are equally entitled to the protection of the law. All of us are equally entitled to be tried in accordance with the ordinary concepts of law, whether or not any of us belong to the working class or any other class.
This debate seems to have been held in an unreal atmosphere. No one really believes that this Bill is ever going to become law. No one believes that, should it pass through the Oireachtas, it will be accepted by the Supreme Court as being in accordance with the Constitution. No one believes, either in this House or outside it, that any single individual will ever be convicted under the Bill. One wonders why the Government are pushing this Bill. We all know that at present we face many very serious problems. The financial situation is deteriorating day by day. There are great numbers of people out of work. Thousands more week by week fear they may lose employment. The Government's budgetary and other financial problems grow more serious every day. In the light of this situation one must ask why are the Government pushing a Bill of this nature which has no relation to the immediate practical needs of the nation and which, in so far as it is intended to deal with the appalling situation of violence in the north-eastern part of the country, has no relevance to this and in practice would do nothing to help matters there?
It has been said by the Minister and others that this Bill originated with the Sunningdale Agreement, followed by the meetings and the report of the Law Enforcement Commission, followed by the usual lengthy period of gestation which one associates with the legislative programmes of this Government. Finally, the Bill did emerge in its present extraordinary form. It was introduced into Dáil Éireann last November. But for five months nothing was done. Admittedy, during that period nothing was done about any of the other problems that face us. The Government continued, week by week and month by month, with their prevailing policy of doing nothing to repair the leak in the roof with the hope that the rain will ease off and things will get better by themselves. They did nothing with regard to the needs of the nation or about this Bill. Then there is this sudden, unexpected revival of interest. Overnight, as it were, the Bill was taken out of whatever pigeon hole in which it was lying and was suddenly withdrawn from the Dáil and introduced here.
One wonders why. Was there some kind of outside pressure? Were there meetings with members of the British Government? Was there any insistence by the British Prime Minister or somebody else that this Bill should be proceeded with? We do not know. One cannot find any sane, normal, sensible reason why it should suddenly have been brought forward in this way.
I will say again that a Bill of this constitutional and legal importance never should have been introduced into this House. There are many other Bills lying around on the Dáil Order Paper that could have been introduced in this House or transferred to this House and could have been dealt with eminently successfully by Seanad Éireann. It is disgraceful that a Bill of this nature should have been introduced to a House which is popularly elected and to which under the Constitution the Government are solely responsible and then discharged from there.
This Bill has been debated for a number of days and it is not unfair to say that the speeches from the Government side, including the Minister, have universally evaded dealing with the terms of the Bill. A number of them have confined themselves to saying that there is a need for this Bill pointing out the dreadful violence which is taking place in Northern Ireland, and saying that as a result this Bill is needed. The answer to that is of course that a Bill is needed but not this one.
Many Senators opposite completed their speeches without mentioning the Bill at all. Their main effort has been a political one in order to discredit the Fianna Fáil Party. We had a rather colourful speech from the Parliamentary Secretary to the Taoiseach, Deputy Kelly, who said that Fianna Fáil favour murderers and bank robbers. We had a remarkable speech by the Leader of the House, Senator M. J. O'Higgins, on the First Reading of this Bill. At column 193, Volume 80, he said:
Anyone who does condone murder should oppose this Bill. Anyone who does condone kidnapping should oppose this Bill. Anyone who does condone kneecapping should oppose this Bill. Anyone who wants to see churches burnt in the North of Ireland should oppose this Bill. Anyone who wants to see dwelling-houses in the North burnt with people inside them should oppose this Bill. This is the company Fianna Fáil voluntarily are stepping into by their attitude here today and yesterday.
I find it hard to forget that a young man who sat behind me on these benches since the last Seanad elections was one of the victims of the murder and terrorism that is rampant in part of this country. This Bill may help to stamp that out.
The Senator is well aware, I am sure, that the deeply regretted murder of Senator Fox had nothing to do with this Bill. It took place in the territory of the State. Those responsible were convicted under the existing legislation of the State. The matter was brought in simply to further the atmosphere that has been created that those of us who for many reasons feel that this is a disastrous and dangerous and unconstitutional Bill are to be associated with this kind of murder and terrorism. We had from Senator Halligan a similar type of statement. He said, at column 904 of Volume 80:
The argument that this Bill is repressive is a contemptible argument. It is implied only by those who have an emotional sympathy with the Provisional IRA...
This type of extragavant language is no way to deal with a Bill of this nature.
As I mentioned, Senator O'Higgins said that anyone who wants to condone murder should oppose this Bill. I could just as easily say that anyone who wants to discredit utterly the courts and judges and administration of justice in this State should support this Bill. I could say that with equal truth. I accept that the Government do not intend to discredit the entire administration of justice. But the inevitable result of this Bill becoming law would be that this would take place.
The Bill claims to be directed against the IRA and various other men of violence who have disgraced Ireland in the eyes of the world. These men of violence are the one group who will lose nothing by the passing of this Bill. The people who will lose should this Bill become law are the law-abiding members of the community. All of us, whether working class or not, who depend completely on the protection of the rule of law or the integrity of the legal institutions of the State will suffer as a result of this Bill becoming law. I am convinced that no single individual will ever be convicted under the Bill. The men of violence on the contrary will rejoice at the undermining of our legal institutions by this Bill.
We should put the implications of this Bill into some kind of context. Senator Alexis FitzGerald, in a rather striking phrase, compared those who were worried by the effects this Bill would have on the legal system to a passenger on the Titanic when the ship was sinking worrying about the structure of the deck chairs. Senator FitzGerald's remark sounds very much like saying the end justifies the means. When it comes to criminal jurisprudence, the rights of the citizen to be tried in accordance with the rule of law, I do not think the end can ever justify the means.
In any event, we should realise that if for practical purposes we were to assume that this Bill became law and was to operate in a manner envisaged by the Government, it could have no perceptible effect in lowering the level of violence in Northern Ireland. How many people are likely to be involved? In the three years from 1971 to 1974 the total number of extradition warrants sworn out in Northern Ireland and rejected by our courts on the basis that they were in respect of political offences was 33. That is an average of 11 per year. This Bill is not retrospective, so none of those people will be concerned in the new Bill. Eleven or 12 cases a year would be the most one would expect to be dealt with in a year.
When one considers the numbers who are tried for, in one year, murder, knee-capping, arson and various political offences listed in the Schedule to this Bill, thousands have been so charged in Northern Ireland in that period. Eleven cases a year is the number of extradition warrants they will look for in the State. In other words, this enormous complicated edifice that is before us today, even were it to work, would not have even a perceptible effect on the level of violence in Northern Ireland.
It seems to me that the Government in their attitude to this Bill have fallen into the trap that over the years has been set for them by the Northern Loyalist element and also by the British newspapers and media generally and by politicians. They have fallen into the trap set by those who have claimed that the violence in Northern Ireland is being committed by citizens of the Republic of Ireland who go across the Border to commit their murders, their arson and so on and then fly back for protection here. Probably 95 per cent of those who commit those crimes of violence are people who live in the area of Northern Ireland.
In view of the fact that all the indications are that only a small number of people would be affected by this Bill, it is being asked why is there need for worry—after all if injustices are done they will be very small in number. My answer to that is that the mere fact that so few people could be involved makes this Bill even worse. I am not accepting in any way what appears to be Senator Alexis FitzGerald's argument—whether he meant it or not that way—that the end to some extent justifies the means. The end is so ludicrously small and could not in any way even dint the massive mountain of violence that we have in Northern Ireland that the means in this Bill become totally unworthy of our support. There might be an argument in favour of a Bill of this kind if it really was going to eliminate or even reduce the level of violence in Northern Ireland. In a situation where that violence will continue unabated and not be affected in any way by this Bill, I do not think that even the smallest case can be made for the various provisions in this legislation.
What, in fact, does the Bill do? It provides for a trial at the Special Criminal Court in certain conditions. These conditions in brief—I will deal with them all in greater detail later— are that the prosecution will be launched on the basis of an original decision taken by the security forces in Northern Ireland with the extreme likelihood of some element of bias in the decision to prosecute.
This Bill provides in effect that the greater part of the evidence—in most cases all the evidence—will be taken in secret in the absence of the accused, perhaps even without counsel appearing for the accused. I will go into more detail to substantiate these claims—I am giving them only in summary at the moment. The proceedings during which this evidence will be taken will be under the direction and control of a Northern Ireland judge. The judges in the case, the members of the Special Criminal Court, who in theory will be trying that case, will be unable to play any part whatever in this process of hearing evidence. Nor can these judges rule on such matters as the reception of evidence, claims of privilege by the military or police and so on. These will be under the control of the Northern Ireland High Court.
In most cases, in so far as one can see, there will be no evidence at all of the accused's identity—to associate the accused, who will remain in Dublin or in the Republic, with the person who is being accused by these witnesses.
All these matters, and there are many more besides, are to say the least of it, highly unsatisfactory. They are unfair to the accused. They are completely in breach of all the ordinary accepted rules of law and of the generally accepted principles of criminal jurisprudence.
Besides being quite unworkable, this Bill is also contrary to several Articles of the Constitution and it appears to be inconsistent with the Convention on Human Rights. These, in brief, are our reasons for opposing this Bill. None of them to my mind has been dealt with, not alone answered, by speeches from the Government side, nor indeed were they answered or dealt with in any satisfactory way in the Minister's introductory statement.
The form of trial envisaged in the Bill is one—I do not think I am exaggerating in this—of the nature that one would expect in a fascist or communist totalitarian regime. We can only condemn the arrogance of the Government who have brought in these proposals that are clearly ill-drafted, unworkable, entirely oppressive of the rights of the accused, and then when criticised for this by Members of the Opposition, they attack Fianna Fáil and claim that our criticism of this bad and unworkable Bill is an indication of our support for bank robbery, for murder, for kneecapping and so on.
The policy of the Government in regard to events in Northern Ireland seemed all along in the past couple of years to be deliberately divisive. The aim of certain Ministers— obviously one is the Minister for Posts Telegraphs—appears to have been to use the tragic problems of the North as a means to try and damage Fianna Fáil. Take for example the Sunningdale Agreement, a matter about which I will have much more to say later on. The Sunningdale proposals were presented to the country and more particularly to the Fianna Fáil Party with a sort of take-it-or-leave-it arrogance. The Opposition were told there was a package deal. We should accept all of it or none of it as we liked. There was a point blank refusal over many weeks by the Taoiseach to explain certain aspects of the agreement that were causing worry to members of the Opposition.
Instead, we had such Ministers as the Minister for Posts and Telegraphs challenging Fianna Fáil across the floor of Dáil Éireann to fight an election on it if they wished. This arrogant attitude has continued in this Bill. The Bill was rushed to the Seanad from the Dáil—not even one day's delay was granted although it was asked for by the Fianna Fáil Party in Dáil Éireann. The Government knew perfectly well from the moment this Bill was introduced in the Dáil, and even earlier, that Fianna Fáil strongly opposed this legislation, though when it came to the transfer to the Seanad the Government in their usual fashion leaked to the Press what they described as their surprise that Fianna Fáil should have opposed it in this way—according to the leaks to the media, this came as a surprise to them. They had expected that any opposition would be mute.
They knew that this Bill was highly controversial and would be strongly opposed, yet they quite deliberately brought this Bill out of limbo within days of the Convention election in Northern Ireland.
I do not believe for one moment that anything that has happened with regard to this Bill made the slightest difference to the way the voting went in the recent Convention election in Northern Ireland. I do not think it is a matter of any interest to the ordinary voter in the street. I think they voted for broader considerations which were not relevant to the discussions on this Bill.
In these circumstances, any Government that wished to avoid dividing the nation North and South would at least have held their hand on this Bill for two or three weeks until the election was over. They were taking a very grave risk that serious damage could have been done in the light of the Northern election.
Related to this whole question of Government arrogance, we had the attitude of the Minister for Justice during the course of the debate. Ministers in all Governments must sit through long debates. They must sit through speeches which they do not like—that is one of the less pleasant aspects of being a Minister. It must be the first time—nor have I heard it happening in the other House—that a Minister, when a speech was made with which he disagreed, just walked out. The attitude of the Minister for Justice during this debate and his long periods of absence have been notable. He is not present now. There may be some excellent reason for his absence, I do not know, but I have never known of a debate on a Bill, important or unimportant, during which the absence of a Minister has been so notable. It would appear that having rushed the introduction of the Bill into the House, the Minister has since adopted the attitude that he does not care what is said in the course of the debate.
The Government, in accordance with their deliberately divisive policy, in the course of the crucial Convention election in Northern Ireland, have been telling Unionists of all persuasions that the largest party, Fianna Fáil, support the IRA, that they are in favour of murder, violence and so on. What results does the Minister expect these statements to have, when simple opposition to a Bill of this kind based on the unworkable nature of the Bill, its unconstitutionality and on many other matters brough out in the debate, is advertised to our Loyalist countrymen in the North-east as an indication that we are in favour of violence? It seems to me that Ministers, in their overweaning ambition to cause political damage to the Opposition Party, will stop at nothing to discredit Fianna Fáil. The result of all this slandering has been, and will continue to be, that no harm at all will be caused to this party. It seems senseless and utterly dangerous, in the Northern context, to engage in this type of slander.
The Opposition have been setting out in this debate the real meaning of this Bill. One can only urge Senators, in what is left of this debate, to try to forget about their constant and personal attacks on Fianna Fáil and instead to try to answer the very valid objections which we are making to this Bill. So far, Senators on the Government side have not done this.
The main purpose of this Bill is to extend the criminal law of the State for the offences listed in the Schedule for crimes committed in Northern Ireland. I shall deal later with the constitutional aspects of the Bill. First of all, one ought to consider what the position of the accused will be under this Bill. Some Senators from the Government side have given the impression, even though they may not have intended to, that people who will be accused under this Bill are men who have committed dreadful crimes, murder, arson and so on. There is the implication that they deserve what they get.
One must try to maintain the simple rule of law that no man is guilty until he is convicted. The people who will be tried under this Bill—if anyone is ever tried under it—may be guilty or on the other hand they may be innocent. One cannot forget that the choice as to who will be tried under this Bill will be made not by our own legal authorities—in whom we can have complete confidence—but by various members of the police forces, the prosecution and so on, in Northern Ireland, in whom one could have a great deal less confidence with regard to their impartiality.
However, the accused, guilty or not. will be brought before the Special Criminal Court. Because the offences under this Bill, with regard to extraterritorial offences, will have been committed in Northern Ireland, all the witnesses will inevitably be from Northern Ireland. There will be one Garda witness who will give formal evidence of arrest, but every other witness will be from Northern Ireland. They may, under the provisions of this Bill, be examined here. It is quite clear that, when it comes to the police and the military who will be the main prosecution witnesses, they do not in practice travel across the Border.
It was made quite clear by the members of the Law Enforcement Commission in their report that in their view police and military would not cross the Border to give evidence in a matter of this kind, if only because claims of privilege and so on might be decided in a manner unsuitable to them in a court in the Republic. They would insist on giving evidence across the Border in Northern Ireland in order that any claims they might have for privilege would be upheld in accordance with the rules applying in Northern Ireland. If they crossed the Border the inevitable result would be that there would be demonstrations against them outside the courts. In view of the atmosphere generated with regard to this Bill I would not be in favour of such demonstrations—it would be quite wrong that anyone who took part in these demonstrations would not be dealt with by the full power of the law.
However, we must be realistic. There would be such demonstrations but it would be extremely undesirable, from the point of view of the application of the law, that there should be such demonstrations. Anyway, it is quite clear, and the members of the Law Enforcement Commission have no doubt, that the military and police witnesses would not cross the Border. Therefore, the prosecution's evidence will almost always, in some cases in its entirety, be given on commission under section 11 of this Bill in Northern Ireland. In these circumstances what will be the position of the accused, guilty or not?
The accused is given under the terms of this Bill the option to cross the Border to attend the commission. The question is whether he is in a position to exercise this option. I need hardly say that it is a universal requirement of criminal law that an accused who is tried for an offence should be present at his trial and be in a position which will enable him to see and hear the witnesses give evidence. It is absolutely vital that in a Bill of this kind the accused should have a genuine possibility of attending his trial. How genuine is the possibility presented to him in this Bill?
He is to be told by the Special Court that he has the option to cross the Border to attend the commission. Even though he will be on bail, and he will unless it is a very serious case such as murder, he is under these circumstances to be delivered into the custody of the Northern Ireland police. That is what the article says. One problem here is: in whose custody would he be held in Northern Ireland? Our Bill says he is to be delivered to the police.
What guarantee have we that he will not be delivered to the military arm of the security forces in Northern Ireland? We know how some of these regiments, such as the SAS, have behaved in past years. We have no guarantee, but we have the extreme likelihood, that so far from being held by the police, the accused will be held by the military forces if he crosses the Border.
We are told in the Bill that no further charge can be made against the accused in the event of his crossing the Border. But there is nothing to prevent him being questioned if the person who is rightly or wrongly alleged to be a member of the IRA or some other illegal group were to cross the Border and be handed over to either the military or the police. Is it not obvious that they would occupy the period between the giving of evidence and the trial with questioning him about everything they can think of. They cannot charge him with anything but they can question him, not merely about the matter with which he is charged, but also all the other activities in which he may have been involved while living in Northern Ireland.
With regard to the question of custody in which he is to be held, we have a curious situation in this Bill. We are told in the Bill and, indeed, by the Minister in his opening speech, that the accused is to be delivered to the police forces in Northern Ireland. We are told in the corresponding sections that deal with the situation where an accused from Northern Ireland who is being tried for an offence which took place in the Republic and where the evidence is being taken under a corresponding section in the Republic under the jurisdiction of a High Court judge, that while here, he will be held in the custody of the Garda Síochána and in a prison which includes St. Patrick's. We are told by the Minister that the British legislation, which is being prepared in collaboration between the relevant British Department and our own Department of Justice, will be parallel and will have similar provisions. One would have thought that any Minister for Justice in an Irish Government would have ensured that the British legislation gave corresponding protections before he brought a Bill of this kind before the Oireachtas, that is, that the same restrictions or the same protections we are providing for an accused coming here from Northern Ireland to attend the giving of the evidence, would be extended to the person living here who is brought across the Border into the North to hear the evidence against him. He has not done so.
In certain respects, protection given in the British Bill to the accused is much less than the protection in a similar case for someone from Northern Ireland in this Bill. For example section 13 (1) of our Bill provides:
While an accused person is in the State in exercise of his right under section 12 to be present at the taking of evidence under that section and until his removal from the State at the conclusion or any adjournment of the taking of the evidence, he shall at all times be kept in the custody of the Garda Síochána or in a prison.
The British Bill, on the other hand— and this has been passed in the House of Lords and is awaiting a Second Reading before the British House of Commons at the moment—states that:
So long as the accused is in Northern Ireland pursuant to this part of the Schedule he shall be kept in custody.
This is not an accident. One might feel that perhaps this was merely mistaken phraseology which is intended to convey that the RUC will look after them, but it is not a mistake. We are told later:
At the conclusion of the proceedings the Commissioner shall direct that the accused be delivered into the custody of a member of the police force, Garda Síochána, in the Republic of Ireland.
When it comes to crossing the Border into the Republic, then immediately the Garda Síochána are mentioned. But while the accused is in Northern Ireland he is merely to be kept in custody. There is no guarantee contained in the British Bill—which is supposed to be corresponding and parallel to our Bill—that he will not be immediately handed over to the Military forces as soon as he crosses the border. If the accused accepts this so-called option of crossing the border to hear the evidence against him, he is held in custody, and our Bill says in the corresponding case in section 12 (3) (d):
Upon any adjournment of the proceedings, if he thinks it appropriate to do so, on the application of the accused or the prosecutor authorise the temporary return of the accused to Northern Ireland.
If the Minister were here he would agree that this means that as a matter of course the accused in the case of any substantial adjournment will be returned to Northern Ireland and released again on bail. The British Bill is worded differently:
If the accused has exercised his right to attend the examination as a witness he shall, unless the Commissioner otherwise directs, remain in Northern Ireland until the examination is completed.
Here you have a negative form and the clear implication there is that as a normal course the accused will remain in Northern Ireland until the examination is concluded. The implication of this is that the accused who has been on bail in this part of the country could remain for a long period in the custody of the military or police forces of Northern Ireland until the final examination is completed. It is clear that where a trial is taking place in the Republic and evidence is being given across the border, frequent adjournments may be necessary. In a situation where one cannot really have any faith in the integrity or impartiality either of the Northern Ireland prosecutors or of the Northern Ireland Judiciary, let alone the police and military forces, it may well be that excuses will be worked up to prolong the proceedings by extensive adjournments. One can imagine a situation where a soldier, for example, had gone on leave. The High Court judge will agree the application of the presecutor to adjourn the proceedings for one, two or three weeks until this man comes back. While this is going on the accused will be in custody.