Court of Justice of the European Communities (Perjury) Bill, 1975: Second and Subsequent Stages.

Question proposed: "That the Bill be now read a Second Time."

This is a short Bill to enable this country to comply with an obligation which arises directly from membership of the European Communities. Under the Treaties a member State is obliged to treat false testimony given on oath before the Court of Justice of the Communities as if it were an offence committed in proceedings before one of its own courts. As Senators are aware, the court sits in Luxembourg. The effect of the Treaty provisions is, therefore, to compel us to take extra-territorial jurisdiction in respect of false testimony before the court.

Section 1 of the Bill makes it an offence under our law for a person before the court to swear anything which he knows to be false or does not believe to be true. Section 2 is a technical jurisdiction provision.

Where perjury appears to have been committed before the court, the initiative in reporting the matter to the competent authority of the member State concerned would be taken by the court itself. This is provided for in its supplementary rules, which were revised last year at the same time as the court's rules of procedure and were approved by the Council of Ministers on the 26th November last.

While it is necessary for us to make this provision in our law, I think it is right to mention that since the institution of the court 23 years ago it has never reported a case of perjury to a member State. Consequently, there is no case law on the matter either from the court itself or from the courts of any of the member States.

Of course, the procedure before the European Court differs substantially from the procedure before our courts. The procedure is mainly a written one and it is not at all common for the court to hear witnesses or experts. It is interesting to note that both witnesses and experts take the oath after they have been heard by the court and that the court may, after hearing the parties, exempt a witness or an expert from taking the oath.

Perjury under our law is a common law misdemeanour. As such it is an indictable offence but, in certain circumstances, it may be tried summarily under the Criminal Justice Act, 1951, as amended by the Criminal Procedure Act, 1967.

I commend the Bill for the favourable consideration of the House.

As far as we are concerned there is no objection to this measure. It is good to see an extra-territorial measure coming before the House which is acceptable to everyone. It is necessary legislation consequent on our signing the Treaty of Rome. It ensures that in so far as the law of perjury is concerned if there is any contravention of testimony, given before the European Court, the case will be reported by the court to the competent authorities here and they will then take the necessary proceedings under our own law.

On a point of information, if it is an obligation of the Treaties to treat false testimony as if it were an offence committed in proceedings before one of its own courts, as a theoretical matter in relation to the whole interlocking of the law of this State with the legal order of the Communities, is it a question of our choosing to have legislation rather than the question of it being necessitated by the Treaties to enact legislation? That point affects one's thinking on the whole question of whether regulations are needed to give effect to certain types of regulations which are in nature directives or whether legislation or regulations shall be enacted by the Dáil in all such cases and in all cases of directives.

The other question is this. Presumably the general common law applies to this matter and the Attorney General is the prosecutor. The question is what the penalties are which follow from conviction. Presumably they are the same as if the offences being committed extra-territorially were offences committed under the common law and the penalties for the conviction are those which follow from the conviction of an offence against the common law.

Finally, again on a point of information, I should like to know—and every lawyer should know—why the British found it necessary 60 years ago to replace the common law offence of prejury with the statutory offence which is described in the Perjuries Act, 1911. For a reason which I again do not understand, although it was enacted by the United Kingdom Parliament, it was one of those pieces of legislation which on examination did not apply to Ireland. What kind of reason was there for that? What results are there from having a UK statute on this? I am taking this opportunity to receive education and I hope the Minister will not mind taking an honorary appointment as my tutor.

The Senator's last state might be worse than his first if he offers me that post because, quite frankly, I am unable to say why the UK Government decided to have a statutory form as opposed to the common law form we have here. I think it is statutory in Northern Ireland also since 1946. It was statutory first in England and Wales in 1911 and subsequently in Scotland in 1933 and in Northern Ireland in 1946. Perhaps there was a higher incidence of perjury in those places. It is an indication of our greater morality that we have been able to make do with the common law situation. I speak with my tongue slightly in my cheek here; we have been able to make do and there has not been any dissatisfaction with the operation of the common law in relation to perjury. I am glad that Senator Lenihan welcomed this and adverted to the principle of extra-territoriality as acceptable without dissension. It is important that the principle be established. I do not see any difference in extra-territoriality in one field and in another field, but that is another day's work. There may be political overtones that would make the principle different, but this is as far as we can go at this stage.

In reply to Senator FitzGerald, under the protocol of the statute of the European Court attached to this Treaty there is a positive obligation on us under Article 27 which says:

At the instance of the Court the member state concerned shall prosecute the offender before a competent court.

That Article deals with violence of an oath by a witness or an expert and it imposes a mandatory obligation on a member state to prosecute an offender. We are fulfilling this obligation in this particular Bill.

May I ask just one question? I accept that it is mandatory on us to be able to prosecute. Are we not already by virtue of the Treaty of which this protocol is part, in the position that that was imported into our law even though we did not have an Act? For example, somebody had committed perjury six months ago. Is it the position that we could not, despite the protocol, prosecute in our courts for that perjurous offence, which it would seem to me to be by virtue of the protocol, or do we need the teeth of this legislation to enable that prosecution to take place?

This is a serious question and it seriously relates to the whole question of this Parliament's role in relation to questions as to whether we make orders or whether we are obliged to make regulations under the European Communities Act or have separate Acts to give effect to regulations of a certain kind. Some of them are self-operative and some of them can be held not to be self-operative and to have a similar effect as directives. Some of the directives are not being given effect to by regulations because the view is taken that, in relation to some of them, though called directives by virtue of their very nature they are immediately imported into our law. This does affect Senator Lenihan and myself and other Senators who are members of the joint committee; it does affect the general question which is at the moment very much before the committee as to what should be our attitude. May I say, in case I am misunderstood, even if it were the position that we could properly say that somebody who committed perjury six months ago, could be prosecuted notwithstanding this Bill, it is highly desirable that we should have such a Bill and be able to have a discussion of this kind? This should indicate my general attitude to what we ought to be doing about regulations and directives.

There is divided opinion on whether, by virtue of our accession to the Treaties and by virtue of the European Communities Act, the courts will automatically be entitled to prosecute here domestically for a perjury committed before the European Court. Because there is divided opinion on that it can only be clarified when a prosecution is taken and, unless the defendant chooses to test it in a higher court, you could have a very long delay and an unsatisfactory state of affairs. In order to avoid that possibility, remote as it is, it was felt that whilst a statute on one view of the present constitutional European position might not be strictly necessary it was desirable to remove any element of doubt. It also, by section 2, removes any element of doubt which might exist regarding technical jurisdictional questions.

There is the further point that, if this statute were not passed, the prosecution presumably would be for perjury as defined under our domestic laws, namely, the common law offence of perjury. One element of the offence, which is not repeated in this Bill, is that under common law the false statement made by a witness must be material to the proceedings before the court. That element of the common law offence is not being repeated in this Bill. The Bill is providing for the punishment of any violation of an oath before the court whether it be material to the proceedings before the court or not. This is a fairly significant distinction and I think that distinction has to be made in our law in order to comply with the requirements of Article 27 of the protocol setting up the European Court.

Question put and agreed to.
Agreed to take remaining Stages today.
Bill put through Committee, reported without amendment, received for final consideration and passed.