Seanad Éireann debate -
Thursday, 13 May 1999

Vol. 159 No. 9

Criminal Justice (Location of Victims' Remains) Bill, 1999: Second Stage.

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

Minister of State at the Department of Public Enterprise (Mr. Jacob)

On 27 April last, on behalf of the Government, the Minister for Justice, Equality and Law Reform signed an agreement with the Government of the United Kingdom to establish an independent commission for the location of victims' remains. The establishment of this commission followed signals from Sinn Féin that actions of the kind now being taken by both Governments would facilitate the recovery of the remains of victims of violence. This is an important and worthwhile development. For the Northern community as a whole, it represents another step in the ongoing process of healing within and between communities. It also brings us a step closer to ending the serious injustice which has long been endured by the families who have been denied information about the burial place of their loved ones.

Senators will recall that the Good Friday Agreement specifically provided that it was essential to acknowledge and address the suffering of the victims of violence as a necessary element of reconciliation. In this context, the Bill before the House will help to bring to an end another sad chapter in the troubled history of this island.

It is regrettable that it is necessary to bring such a measure before the House. The Bill has one purpose – to provide a framework to facilitate the location of the remains of victims. It sets out to do no more and no less than what is necessary to facilitate that process. It is important at the outset to say without equivocation, because there has been some confusion on this point, that the Bill does not contain an amnesty in respect of any offence. Instead, what is at issue is excluding the use by the prosecution of evidence resulting from the process for which the Bill provides.

I say to those who harbour misgivings about the limited immunities provided for that the road to peace and reconciliation is not an easy one and every section of society must be prepared to compromise if we are to achieve our objectives of peace, harmony and mutual respect on this island. It would have been preferable if the need for this legislation had not arisen. However, government often involves making difficult decisions in the face of competing concerns. Without this legislation and the agreement, the location of the remains of the victims might not be revealed and the families of the victims would be faced with the additional pain and suffering of not knowing where the remains of their loved ones are buried. Humanity and compassion surely dictate that if there is an opportunity to lessen that pain and suffering, we must do all we can to seize it.

The timetable for the passage of this legislation is, by necessity, relatively tight. I acknowledge in particular the co-operation of the Seanad in having the matter debated here this morning.

The Bill provides for an independent international commission, as established under the agreement between the Irish Government and the Government of the United Kingdom signed on 27 April 1999, to facilitate the location of the remains of victims of paramilitary violence killed prior to 10 April 1998. The date 10 April 1998 is appropriate given that it was the date of the Good Friday Agreement. Against this background, the Bill provides that the functions and membership of the commission shall be as set out in Articles 3 and 4 of the Agreement; it provides for a prohibition on the use of evidence resulting from the process and for the confidentiality of information provided to the commission in relation to the process and it provides for immunities and privileges, etc. relating to the commission.

The background to the Bill is as follows. At its meeting on 29 March 1999 the Government approved the draft text of a statement to be issued concerning an initiative to locate the graves of missing people from Northern Ireland. The statement indicated that the Government was prepared to facilitate a process in relation to locating the remains through introducing legislation to the effect that evidence resulting from that process could not be used in the prosecution of offences. Shortly afterwards the Provisional IRA issued a statement to the effect that it had succeeded in locating the remains of nine victims. Lengthy and detailed discussions have taken place with the UK authorities with a view to putting in place a framework for the process of locating the remains of victims. This culminated in the signing of the agreement on 27 April between the two Governments.

The Bill provides for the appointment of a commission and specifies that the objective of the commission shall be to facilitate the location of the remains of victims. The commission shall consist of not less than two members to be appointed jointly by the two Governments. There are standard provisions relating to appointments, procedures etc. and the provision to the commission of such moneys, premises, facilities and services, including the services of staff, as may be necessary.

The Bill provides that evidence resulting from the process shall not be admissible by or on behalf of the prosecution in proceedings for an offence. It also provides for a similar ban on forensic testing to that contained in the Decommissioning Act, but testing will be allowed to the extent that such testing is necessary, for inquest purposes, to establish the identity of the victim or how, when and where he or she died or to determine whether an item can be safely moved or otherwise dealt with.

The Bill places an obligation on the commission to maintain confidentiality in relation to the information disclosed to it. This is a central provision in the Bill. There is, however, a provision which would allow, at the discretion of the commission, the family of a victim to be told that information has been given to the commission relating to the location of the remains of the victim, and the place where, according to the information, the remains may be found. The Bill also provides for immunities etc. in relation to the commission. There is also provision for the issue of search warrants to an Garda Síochána on the basis of certificates provided by the commission that the remains of a victim are likely to be found at a particular place.

In relation to the Freedom of Information Act, it is envisaged, for obvious reasons, that there would be no question of the Minister for Finance making an order the effect of which would be to make the commission a public body to which that Act would apply. However, it is necessary to amend the Freedom of Information Act to ensure that information provided by the commission to public bodies, or from public bodies to the commission, can be protected fully.

The Bill also contains standard provisions relating to the submission of reports by the commission, the dissolution of the commission when it is considered no longer necessary for it to remain in being, expenses, short title and commencement.

Section 1 is a standard provision providing for certain necessary definitions. In particular, "victim of violence" has the meaning assigned to it in Article 3(3)(a) of the agreement, namely "persons killed before 10th April, 1998 as a result of acts committed on behalf of, or in connection with, an unlawful organisation". An "unlawful organisation" is defined in Article 3(3)(b) of the agreement as an unlawful organisation within the meaning of the Offences Against the State Act, 1939, in respect of which a suppression order has been made, or an organisation proscribed for the purposes of the Northern Ireland (Emergency Provisions) Act, 1996.

Section 2 provides that the commission will be independent in the performance of its functions and will have the legal capacity of a body corporate. This is in line with Article 2 of the agreement.

Section 3 provides that the objective and functions of the commission, referred to in section 1 as "the process", are as set out in Article 3 of the agreement. The objective of the commission is to facilitate the location of the remains of victims of violence. The functions of the commission are to receive information relating to the location of the remains of such victims, to disclose such information for the purpose of facilitating the location of remains to which the information relates and report on its activities to both Governments no later than one year after its establishment and annually thereafter.

The membership and terms of appointment of the commission and the appointment of staff shall be as set out in Article 4 of the agreement. The commission shall have not less than two members, appointed jointly by the two Governments. The two Governments may, if they so wish, jointly appoint one of the members to act as chairperson. The terms and conditions of the members will be determined by the two Governments. The commission may appoint staff to assist in the discharge of its functions on such terms and conditions as the commission, with the agreement of the two Governments, may determine. In line with Article 8 of the agreement, the commission will be required to keep proper accounts and, at the request of the two Governments, will appoint auditors who shall audit the commission's accounts.

Section 4 will enable the Minister to provide to the commission such moneys, premises, facilities and services, including staff, as may be necessary for the proper functioning of the commission. This is in line with Article 6 of the agreement.

Section 5 provides that any evidence obtained, directly or indirectly, whether inside or outside the State, resulting from the process, shall not be admissible on behalf of the prosecution in any criminal proceedings. Neither will any evidence be admissible which results from a test or examination carried out for the purpose of establishing for the purposes of an inquest the identity of a victim or how, when and where he or she died. In addition, any evidence resulting from a test or procedure the purpose of which is to determine whether an item found can safely be moved or otherwise dealt with, will also be inadmissible. Tests or forensic examinations on any human remains or other item found resulting from the process for any other purposes shall not be permitted.

Section 6, in line with Article 7 of the agreement, provides that no information provided to the commission in relation to the process shall be disclosed to any person, except for the purpose of facilitating the location of the remains to which the information relates. However, the commission may disclose or arrange for the disclosure to members of the victim's family the fact that information has been provided to the commission relating to the location of the remains of the victim and the place, where, according to that information, the remains may be found. Needless to say, ensuring the confidentiality of information provided to the commission is an essential requirement in the process.

Section 7 provides that the Minister may, by order, make provision to the effect that the commission, its property and certain persons, as set out in the section, shall be afforded certain immunities and privileges. This is in line with Article 5 of the agreement. Such provision is considered necessary given that the proposed commission will be an international body and the need to ensure that the commission can give absolute assurances about maintaining confidentiality in relation to information provided to it. There is a similar provision in respect of the Decommissioning Commission in the 1997 Decommissioning Act.

An order under this section shall be laid before each House of the Oireachtas as soon as may be after such an order is made. The order may be annulled if a resolution to that effect is passed by either House within the next 21 sitting days after the order has been laid before the House.

Section 8 provides that a search warrant may be issued by a judge of the District Court if satisfied that the commission has certified that the remains of a victim are likely to be found in a particular place or premises. A person who obstructs a Garda acting under the authority of a search warrant will be guilty of an offence and, if convicted, shall be liable to a fine of up to £1,500 and/or imprisonment for a period of up to six months.

Section 9 proposes an amendment to the Freedom of Information Act, 1997. The Freedom of Information Act would not apply to the commission itself as it is not intended that the Minister for Finance would make an order declaring it to be a public body under the Act. There is, however, a need to protect communications between the commission and public bodies.

Section 25 of the Freedom of Information Act allows, subject to certain safeguards, for the issue of a ministerial certificate to the effect that applications for disclosure of certain information may be refused because the record is exempt under section 23 or section 24 of that Act. The Bill provides that the same freedom of information regime would apply to communications between public bodies and the commission as applies to other sensitive information currently covered under sections 23 and 24 of the Freedom of Information Act. In effect, this would mean that such information will be subject to the same regime which applies to information, such as sensitive security information, and information affecting relations with Northern Ireland.

Section 10 provides that a member or a member of staff of the commission or a person performing functions assigned to him or her by the commission or an agent of the commission shall not be required to attend an inquest in relation to any matter within his or her knowledge resulting from the process. This provision is considered necessary in the context of assuring confidentiality in relation to information supplied to the commission.

Section 11 provides that the Minister may, by order, direct a coroner, other than the coroner in whose district the remains may be found, to conduct the inquest. This provision arises because it has been represented to the Minister that for practical reasons – related to specialised forms of forensic testing – it may be desirable for the inquests to be held in Dublin.

Section 12 provides that the Minister may, after consultation with the Secretary of State, dissolve the commission in line with Article 10 of the agreement. In doing so, the Minister may provide for such transitional or consequential provisions as appear to him or her to be expedient. Therefore, it would be possible to wind down the commission in a manner which would allow for the meeting of any liabilities and for the disposal of any remaining assets of the commission in an orderly manner. Sections 13 and 14 are standard provisions and provide for the payment of expenses arising under the Act, the short Title and commencement.

The troubles on this island over the last 30 years or so have given rise to thousands of victims and it would be invidious to compare the levels of suffering endured by any one group or community. However, there is widespread acceptance that the plight of the families of victims whose remains have not yet been recovered has been an especially harrowing one.

The Government is confident that the Bill, following the agreement signed last Wednesday and taken together with the similar legislation being put through the British Parliament, will encourage those who may have information about the secret burial places of victims to make the information known to the Independent Commission for the Location of Victims' Remains. It is my view and that of the Government that providing this information is no more than justice and basic humanity require and deserve.

There are understandable reservations about what is proposed in the Bill. These were expressed with some force in the House of Commons earlier this week when the UK Bill on the Location of Victims' Remains was debated. Some speakers went as far as to suggest that what the Bill represented amounted to a policy of appeasement of paramilitary organisations. It is no use to anyone to embark on a sterile debate, but it is useful to make it clear that the Bill is not in ease of paramilitary organisations; instead it is intended to be in ease of the plight of families who for too long have been denied the chance to say a last goodbye to their loved ones. I believe that neither the Government nor the House would do anything to deprive those people of that basic right.

I look forward to a constructive and informed debate. I thank Senators for their co-operation and I commend the Bill to the House.

Mr. Connor

I welcome the Minister of State. While my party will not do anything to obstruct the passage of the Bill, we do not welcome the legislation. Neither does the Minister of State. In this Bill we are giving immunity to people who committed murder most foul. If a vital piece of evidence is found during the recovery of bodies which would lead to the conviction of the murderer, it cannot be used. Many of the killings over the years were 95 per cent solved and in many cases only one piece of vital evidence, which would have led to a conviction, was missing. This piece of evidence could be found during the recovery of the bodies and it is with great reluctance and an apology to the victims and their relatives that we must support this measure.

These difficult decisions must be taken in the context of the totality of the reconciliation process in Northern Ireland. However, we do not forgive the people who committed these foul murders. We do not forgive them for the way individuals, who were in most cases innocent, were abducted, brought before the godfathers of an illegal organisation, tried in a kangaroo court and taken away to be summarily shot. Many of them were also tortured, which compounds the violence and horror of the crime.

If that was not bad enough, the names of the victims were usually blackened. Every possible attempt was made to take away their reputations because the justification for killing them was that they had acted as spies or informers. Usually this was not true, but they were not afforded due process. The blackening of the victims' names compounded the grief of their families.

I read the debate on the Bill in the other House and I was most impressed by the contribution of Deputy Currie regarding Columba McVeigh, who was a 17 year old neighbour of Deputy Currie in Donaghmore, County Tyrone. Columba McVeigh was abducted in Dublin, near Dolphin's Barn. He left his flat, telling his girlfriend he was going to buy a packet of cigarettes, and he was never seen alive again. I understand the IRA has indicated that it knows the location of his body. This young boy was caught up with the IRA in 1975 at the height of the violence and he got into trouble with the RUC. His home was raided by the security forces in Northern Ireland and he probably felt it was necessary to leave there and find sanctuary in the Republic. Yet he was abducted and his life was taken. He was probably tortured and his reputation was blackened.

The disappearance of people has been a problem in every country where there has been civil strife or, as they are euphemistically called now, emergency humanitarian situations. Thousands of people disappeared in Chile, Argentina, Angola and Mozambique. It happened in dozens of countries and in every place where there was an attempt to make the transition from abnormal civil strife to a normal situation involving democracy, politics and a civil society there was great difficulty in resolving the problem of people who disappeared. This was also the case in South Africa.

I hope we will soon see an end to strife in Northern Ireland but at times I am more pessimistic than optimistic. All the parties to the Agreement, including the Taoiseach, the British Prime Minister, the leaders of the Unionist parties which are participating and the leaders of Sinn Féin, will sit down again in Downing Street at the end of this week in an attempt to break the logjam. We wish them good luck. Since the apparent failure of the Hillsborough announce ment some months ago, a number of attempts have been made to solve the final problem of decommissioning.

It sometimes appears tantalisingly close, but if one then reads the statements of certain people, it appears the gap is as wide as ever and we may face the awful scenario of slipping back to the previous position. We wish the parties well. There is total political consensus in this House that every possible effort must be made. The Taoiseach would probably give his right hand, as his predecessor would have given, to be able to say that the problem was solved once and for all in his time.

If normality returns in Northern Ireland, with a new civil society and an administration drawn from all strands of political opinion, there is a need to put in place a truth commission for the victims' sake. Under such a body the victims of violence would be able to face the people who perpetrated violence against them. This was a healing process in South Africa where victims met the perpetrators of violence. Extraordinarily, the perpetrators gave accounts of what they did and why they did it, expressing great sorrow and apology. This was necessary because we can never underestimate the festering sense of hurt felt by the families of victims.

This is also felt by people who survive attacks. As the Minister said, it would be invidious to distinguish between, say, the victim of a punishment beating who was left horribly maimed and someone left horribly disabled and traumatised after an attempt on his life. There are hundreds, perhaps thousands, of such victims in Northern Ireland. Many of them suffered when they were young – there has been a preponderance of young victims – and they will be with us for a long time.

In the long-term, when we hope to have a normal political dispensation, we will need to put in place such a body and the Irish Government will have to make a contribution to assist victims and their relatives. The conflict has yielded thousands of carers who must look after a family member who was maimed or psychologically scarred. The British Government and our Government have a particular responsibility to heal the hurt by paying financial compensation to provide for care and to make some contribution to a gainful life the possibility of which may have been lost as a result of the Troubles.

I mentioned events at Downing Street this week and the Minister mentioned the remarks in the House of Commons during the passage of the British equivalent of this Bill. I am delighted that it completed all Stages yesterday and hope it has equal ease of passage in the House of Lords.

We are entering the marching season, the summer months when marches proliferate all over the North. All this will yield is further conflict and tension. I welcome the initiative by the First Minister, Mr. David Trimble, meeting Mr. Brendan Mac Cionnaith of the Garvaghy Road residents' asssociation. Mr. Trimble is the MP for the area. I appeal to both men to be generous and compromising in their attitudes so that we do not see a repeat of the tension which the Drumcree stand-off has produced in the past. All that has been achieved through the tortuous talks process could be set back and almost destroyed by a flashpoint such as Drumcree. I wish them well and congratulate them on their courage in sitting down together. The only way to resolve these problems is for the parties to the conflict talk to each other.

The Minister said the commission would have not less than two members but it should have at least four. There will be equality of nomination between the two Governments – in other words, if the Irish Government nominates one member the British Government will nominate one also. In that case the commission will have an even number of members and if the commission has four members each Government will nominate two.

I have a number of people in mind who could be members of such a commission. The members should be eminent persons with a good reputation and high standing, because they will be doing something which requires us to be reluctant and apologetic. The people chosen must give prestige to the commission. It would then be seen that the work was necessary, because otherwise these people would not lend their names to it. I ask the Minister to take that on board.

We will not bring forward any amendments on Committee Stage. The British House of Commons dealt with the equivalent legislation yesterday evening. The Dáil has already passed this rather unpleasant but necessary Bill and it is appropriate that this House should deal with all Stages today. This will expedite the location and Christian burial of the bodies and some finality in grieving for the families. In Christian society the burial of the dead is an important stage in grieving.

The IRA has indicated that it knows the location of nine bodies but there are at least seven and possibly ten more. I am not convinced that the location of those other bodies is not known to the paramilitaries who committed these murders. The Irish and British Governments and the commission, when it is set up, should insist on being told the location of the bodies of all victims. Someone carried out these murders and the organisations responsible are highly organised and keep good records of what they do. Even if the locations are not written down someone knows them.

Mr. O'Donovan

I welcome the Minister and acknowledge the magnanimous approach taken by Senator Connor in broadly accepting the legislation. This is an unsavoury Bill but it is necessary. Over the last 30 years we have witnessed great turmoil on this island, which saw new lows in the Nationalist-loyalist divide in the North. Great efforts were made by various Governments, culminating in the successful Good Friday Agreement just over a year ago. The day after burying his mother the Taoiseach flew to the North to continue negotiations. Similar commitment was shown by many others, including Mr. David Trimble and Mr. John Hume, and we should also acknowledge the contribution made by the Sinn Féin delegates. It was obvious that if the Republicans were excluded from the talks an agreement would never have been reached.

I acknowledge my colleague's remarks about the gory details of the fate of people who were abducted, possibly tried by kangaroo court without due process of law, killed and their bodies dumped or buried unknown graves. Coming from the seaside area of west Cork, I can see parallels with people who have lost relatives at sea. I am aware of families whose relatives' bodies were never recovered. These families grieve for many years after their loss and continue to hope that some fragment of remains will be washed ashore so they can bury their loved ones.

The situation dealt with by this legislation is even more serious. At least deaths at sea tend to be accidental whereas in this case the people were possibly tortured. Many of them were young people whose families, friends and loved ones never had a chance to pay proper tribute to them, grieve for them and, eventually, to be healed. In this regard, the legislation is essential. Despite its unsavoury aspects and the circumstances surrounding it, the salient fact is that if the bodies can be located, identified and given a proper Christian burial by the families concerned, it will be a major step in the continuation of the peace process.

Following the conclusion of the Good Friday Agreement on 27 April last year, both Governments came together to draft this legislation. It was a joint effort to establish a commission to retrieve the bodies of the disappeared. The central objective of this Bill is that the remains of victims of violence can be located, identified and given a proper burial by their families. I accept this is only a small step in dealing with the pain they have suffered. However, if the independent commission were not established, the problem would continue.

I wish to acknowledge the passing of a similar Bill by the House of Commons. I am concerned about the reservations expressed by MPs but I also understand them. When one weighs up the pros and cons of this legislation, unsavoury as it may be, the fact that it will enable some of the bodies to be located is a benefit. It is important and necessary for that reason.

The independence of the commission must be recognised. I agree with Senator Connor that four or five members is a more appropriate number than two. The personnel to be appointed by the Governments should have an understanding and stature that is recognised by both communities. People have criticised the confidentiality aspects of the information to be obtained by the commission and the immunities and privileges to be offered. Realistically, however, if section 6, which deals with confidentiality, section 7, which deals with immunity and privileges, and section 9, which deals with protection under the Freedom of Information Act, were not included, the bodies would never be located. The possibility of giving some form of healing to the families, friends and relatives of those who died at the hands of extremists would be lost and their suffering would continue.

It is important that the commission collects and deals with the information swiftly. It is essential that the information, once it is collected, be kept confidential. I accept, somewhat grudgingly, the necessity to provide immunities and privileges for those who provide information to the commission. It is extremely important to accept that. My great desire is that the commission, which will be obliged to report to both Governments each year, will complete its work efficiently and swiftly. Hopefully, it will be completed within a year. It is not necessary that it should drag on for years.

I am almost certain the information can be obtained by the commission in a matter of days or weeks rather than years. I hope that by this time next year the commission will be allowed to lapse having completed its functions. The suffering has gone on for decades and the idea that the commission would require up to five years to complete its work would be contrary to the spirit of the Good Friday Agreement and the agreement between both Governments on 27 April. If the bodies were found and given a Christian burial within a year, it would be a source of some comfort and solace for the families.

I am conscious of the difficulties posed by the Freedom of Information Act. It is essential that the exemptions in sections 23 and 24 of that Act come into play to ensure that sensitive information collected by the commission does not come into the public domain. If it did, it would defeat the purpose of the Bill. One must recognise that this legislation is being introduced by both Governments as part of the overall package of measures required by the Good Friday Agreement. It is a gory but necessary step.

I hope the legislation and the commission will be successful. I also wish the Taoiseach, David Trimble and Tony Blair every success in their ongoing efforts to move the peace process forward. Important meetings and negotiations are taking place this weekend and it is of paramount importance that the House wishes our negotiating team every success. A huge leap forward can occur, particularly with the approach of the marching season. I acknowledge the role played by David Trimble in meeting the Garvaghy Road residents and welcome the recent statement by the Orange Order that a more sensitive approach might be adopted during the marching season. This is both sensible and welcome.

I hope the work of the commission will be completed within a year. It is essential that its work is carried out swiftly and that the information on the location of the bodies be dealt with sensi tively, particularly on behalf of the people who have been grieving for their missing relatives for up to 20 years.

Dr. Henry

Like other Senators, I welcome the Bill but have reservations that we have to go this far to get the bodies of the people who have been murdered returned to their families for proper burial.

The human cost of the troubles in Northern Ireland over the past 30 years has been enormous, but the stress on those who have had members of their families murdered and whose bodies have disappeared with no possibility of recovering them to bury them has been one of the worse aspects. One of the most appalling visions I ever saw was that of people on television who were so grateful and thanked the republican movement, which has murdered their relations, for saying it would locate the bodies so that they can be retrieved and buried.

With the establishment of the commission, I hope these bodies will be returned and this will not prove to be another false dawn. On several occasions in the past promises were made. Maybe they were premature and the scene was not right for the return of bodies. I do not believe anything else can be done that will make it possible for these bodies to be returned. If it does not happen this time it will be an appalling day for those who describe themselves as Irishmen and republicans and it will be appalling if this continues. It has been nauseating to hear people describe themselves as doing this for the sake of the country and on behalf of the Irish people and then to find they do not even have the humanity to allow those whose relatives have been murdered to bury them.

Having regard to the age of the many of the people who have disappeared, I wonder how anyone could not have thought of the incredible distress that would cause their families. I am very doubtful about some people who describe themselves as fighting for a liberated Ireland.

I campaign constantly for the return of republican prisoners to Northern Ireland and to the Republic, but mention of this to anyone involved in the movement has not got an enthusiastic response in the past. I hope we will see an end to the appalling stress that has been caused.

Having regard to the thousands of the people who died and were injured in Northern Ireland, it is important to remember more than 80 per cent of those killed in Northern Ireland were killed by the paramilitaries. More than half of them were killed by people in the republican movement. It is astonishing when one considers the number who were killed because it was believed that in some way they were informers or not sufficiently toeing the party line. The death rate among Catholics was twice that of Protestants despite the fact that the Catholic population there is only a little more than 40 per cent. When one considers that such a large number of Catholics were killed by republican para militaries, it is hard to comprehend that such a toll was taken on people by those who said they were protecting them.

It is incredibly sad when one considers the age of those who died. More than 40 per cent of those who died were under the age of 24 and a great number were under the age of 18. The toll is clearly outlined in a book I read recently entitled "NORTHERN IRELAND'S TROUBLES The Human Costs" by Marie-Therese Fay, Mike Morrissey and Marie Smyth. I note Senator Quill has also read it. I recommend it to Members. It is a sad litany of what has been going on in Northern Ireland. Much of it was perpetrated on the people in Northern Ireland by themselves, it did not require the work of the security forces. The sectarian nature of the conflict there cannot be brushed to one side.

I am glad some Senators mentioned the improvement in the words spoken by Orange Order. I wish to tie that in with what I would like to say about the Church of Ireland in Northern Ireland. As a member of that church, it is spine-chilling and appalling to see it projected internationally by the vision of the Church of the Ascension at Drumcree.

The Orange Order was founded in Loughgall, which is in that area, about 200 years ago. The Drumcree rector at that time was one of the main supporters of the founding of that organisation. There is no need to encourage traditions that cause mayhem. At the Church of Ireland Synod next year, I hope serious debate takes place on the need for the separation of the Church of Ireland from the Orange Order. I do not know of any churches in England that fly the Union Jack at certain times. Why should the union flag be considered part of what one could describe as the necessary bunting for parades during the marching season? Those of us in the Republic of Ireland believe it only encourages a type of division between North and South, which is not of benefit to the church. How often do members of the church in Northern Ireland consider that?

I hope that members of the Orange Order who will attend church services during the approaching marching season will remember the advice given by the Archbishop of Armagh, Dr. Eames. He said that those who go to church should go there with Christian charity in their hearts. That should be the reason for being involved in the service and when going to and coming from the church they should work within the law of the State.

I realise members of the Orange Order do not agree with the establishment of the Parades Commission, but it was set up by a Government to which they are loyal. We are not in a position to say that we will pick and choose which part of the Parades Commission we want. I hope they will take the Archbishop's words seriously. One of the most appalling sights I can remember is a church service being used as a launching pad for violent demonstration. I hope that will be carefully addressed by the synod next week. I hope we do not see the Drumcree Mark V, as it has been called, take place this year. It diminishes seriously a Christian church. Many members of it feel humiliated when they see this sort of display. I ask those within that area to remember what the Archbishop said.

It is welcome that the Orange Order has said it will hold its parades in localities where they will be welcomed. They are entitled to express their tradition and I support that, but it is very wrong to use church services to parade in an area where one is not wanted. It diminishes the church and one has to ask what it has to do with the spirit of the service one has just attended.

While the death rate in Northern Ireland has diminished incredibly – it is astonishing to compare the current figures with the number of people who died in the 1970s – paramilitary attacks are still taking place. I am delighted RTE has started referring to them as paramilitary style attacks rather than punishment beatings. They have been described as punishment beatings for too long – punishment for what? Those involved in meting out this justice act as accusers, courts and decide the punishment. Paramilitary style beatings is what they are.

I remember my horror when I attended a meeting at the Royal College of Surgeons in London and two young surgical registrars from the Royal Victoria Hospital in Belfast presented a paper on 86 cases of reconstruction of the knee joint following kneecapping. There were very few Irish people there and my head was hanging. They described the differences when a person was shot in the side of the knee, the front of the knee, if it was done with a Black and Decker drill, if the femoral artery or nerve was gone etc. We recently saw a victim of a loyalist attack who had both legs amputated following kneecapping. This is what these paramilitary style beatings mean.

A friend of mine who works in a casualty department in Northern Ireland told me there is very little one can do with someone after their hands have been beaten to pulp with a lump hammer – they will never work again. Unless we manage to convey to those organisations in Northern Ireland that we are disgusted by the continuation of this behaviour, it will continue. It is only when genuine public disgust is shown for this behaviour that any attempt will be made to rein in those members who are involved in it. Most of these organisations are well-disciplined. I do not care whether the excuse is that people are punished because they are dealing drugs or whatever it may be – if they are offending against civil law, action should be taken against them under civil law, not by those involved in these organisations.

I am sad that some parts of this Bill have to be included, as I think are many Members of the House. These people were murdered – no more and no less. When I look at the age of many of those missing it is most distressing. If the Bill contributes to ending the appalling distress of famil ies with missing relatives, some of whom have been missing for 30 years, it must be passed.

Miss Quill

I give my support to this Bill with profoundly mixed feelings. We must face the ugly aftermath of 30 years of terrorism and its impact on, for the most part, an innocent community. I hope we are facing up to the impact of more than 60 years of sectarianism in Northern Ireland. This Bill is another piece of the jigsaw which will hopefully enable us to confront this and to create better times for that community. I may have mixed feelings about supporting this Bill but if relatives of the victims of terrorism get some comfort from being allowed to grieve in the normal manner and to make a connection with family members who were taken away, sometimes in the most horrific circumstances, and murdered in the most brutal manner, this Bill will be worthwhile. If those who were murdered are now to be given the respect and dignity of a proper burial, this Bill must be supported. If it consolidates, promotes and helps the progress of the peace process it must be supported by all right-minded people.

However, the price we are being asked to pay for this is very high. It sticks in my gullet to give my support to any legislation which gives immunity and an amnesty to crass murderers who inflicted torture not only on victims but on their families and communities and did so relentlessly for 30 years. They have inflicted damage which will not be reversed in one generation. However, we must pay the price if the overall outcome is worth it. It is a travesty of justice that the perpetrators of these vile murders will be let off scot-free and will not be brought to justice in any way. This goes against what a civil and democratic society should stand for.

The ongoing violence in Northern Ireland was referred to and its impact was graphically described by Senator Henry. Will the perpetrators of kneecapping, which Senator Henry said should more properly be called paramilitary violence, also get immunity? How will they be dealt with? I would like the Minister to clarify that. This violence has corrupted a generation, perhaps two. Coupled with the sectarianism which in part gave rise to this violence there is a generation of people who have been badly brutalised. We are now left to deal with the aftermath. It will take a great deal more than a democratically elected Parliament sitting in Stormont or the commission established under this legislation to confront and heal the hurt and deep psychological damage inflicted on the citizens of Northern Ireland.

I was pleased to hear Senator Henry speaking about the role she wishes the Church of Ireland to play in addressing these issues. If religion has any meaning in people's lives, it should seek to cultivate a sense of forgiveness and redemption. These people need that. The Church of Ireland has a key role to play, just as other churches prac tising in Northern Ireland do. I hope the Church of Ireland publicly dissociates itself from the Orange Order and all the trappings of sectarianism. It was in a sectarian society that the violence we are now seeking to address was allowed to flourish. Violence cannot be excused but it provided a breeding ground for terrorists and gave them an ostensible reason for carrying out awful acts.

We must seek to address this issue in the broadest terms and religion has a key role to play. Reference was made earlier to a novel written recently about the impact of violence in Northern Ireland on a human level. Brian Moore, who died earlier this year, wrote a similar book entitled Lies of Silence. There is no doubt that silence, which substantiated lies, was maintained by people in key positions in Northern Ireland. They kept their heads down and mouths shut when they ought to have been putting in place proper principles of justice that might have led to a decent, civil society where neighbours wished to live in peace with each other.

That cannot continue in future. There is a vacuum at many levels, including at the political level, which needs to be filled. In many cases young people watched brothers or parents being shot or dragged out of their houses without mercy never to be seen again. I cannot even begin to imagine how society can seek to undo the damage that has been done to them. I hope that when the Assembly begins to function in Northern Ireland, a sizeable budget will be put in place to help these young people through education and the arts, which help to heal broken hearts, minds and souls, and a system of justice will operate that will be visibly and patently fair and which all citizens, irrespective of age or creed, will be able to support on an ongoing basis.

It will take great maturity on the part of the population to come to terms with the prices being paid to sustain the peace process in the context of prisoner releases and the immunity being given under this Bill. In the measures we take to sustain the peace process we must never lose sight of the need that exists to play our part as a community in putting a civil society in place in Northern Ireland where young people can begin to feel that it is a good place to live, fair play is given to all citizens and the past is finally just that.

I wish that some decommissioning of weapons would take place as a gesture to accompany legislation such as this so that young people will not feel that paramilitarism is lurking underground; that is important. I hope that the commission carries out its work speedily and well and that the outcome will be handled sensitively, will go some way towards healing the hurt of families and reverse some of the damage that has been done. For that reason my party and I support the legislation, although I have mixed feelings.

Mr. Ryan

An focal is fearr is féidir a lua faoi rud mar seo ná "déistín". Is ábhar é seo arbh fhearr le duine gan a bheith de dhualgas air é a phlé ach caithfear é a phlé agus tá sé thar a bheith tábhachtach go bpléifí é.

I am reminded of something that is not obviously related to the Bill. A man from the south east visits Cork every weekend to search for the remains of his son. All of us are certain that he was murdered but nobody has found his remains. It is suspected that the young man's body is in the same local electoral area in which Senator Quill and I reside. This story involves only one person but it is painful and distasteful, even without the overtone of all the horror and brutality of Northern Ireland.

However, distasteful as it may be my party and I accept the need for this legislation. With one exception in the Houses of the Oireachtas, nobody has ever suggested that even if the full list of assertions of the most oppressed sector of the Roman Catholic community in Northern Ireland were true, it would justify the killing of one person. The basis for any moral justification for the use of violence was never present in Northern Ireland and I have said this, as have many others, in parts of Northern Ireland where it might have been wiser not to do so.

I had the experience of being in a drinking club of dubious legality in west Belfast when the British Army arrived to conduct a totally unnecessary search. An individual turned to me and said "I see your friends have arrived", which was a slightly discomfiting remark. The reason I have been in these places is that I have frequently pursued issues of injustice in Northern Ireland, the pursuit of which was of no electoral benefit to me – it was quite the opposite I suspect. A certain section of the Garda in Cork noticed me at meetings at which it believed I should not have been present. These meetings dealt with incidents such as the SAS execution of three members of the Provisional IRA in circumstances where one horror was allegedly avoided by the commission of a separate horror. While a bombing would never have been justified, I am not sure that killing three people, particularly when one recalls what happened afterwards, served any purpose.

When the issue of violence arises, we must not deceive ourselves into believing that all violence is carried out by brutes and psychopaths. It is carried out by people who in other circumstances would be perfectly ordinary. That is a terrifying aspect of political violence in particular, whether it involves terrorists or those who call themselves "guerrillas" or the State in certain circumstances. Violence draws people to the surface who have a particular penchant for killing other people. In the context of the Houses of the Oireachtas there is only one Member who would even equivocate on the use of violence in the North. All societies have found perfectly ordinary people capable of violence. They are like Jekyll and Hyde in changing their views.

I had the interesting experience of giving lectures to Provisional IRA and INLA prisoners in Portlaoise. I hasten to add that they were legal lectures condoned and supported by the Department of Justice, Equality and Law Reform. The most extraordinary part of that experience was how ordinary the people were to whom I spoke – among them was the late Dominic McGlinchey.

It is too easy to say that violence is only carried out by brutes and psychopaths. The terrifying thing about political violence, whether it is carried out by terrorists or the State, is the capacity to diminish people's ordinary sensitivities. I do not wish to make a silly political point, but as one listens to the responses of otherwise very humane people in Great Britain and the United States to the deaths of civilians in Kosovo or Serbia, one perceives an equivalence. Desensitising disappears rapidly once societies, groups or communities accept the use of violence is valid in the pursuit of an objective. That is not an explanation, if anything it is a warning to us about our capacity to forget the humanity of others in a conflict situation.

The real difficulty with violence, whether it is used for political purposes, is that it brutalises us. That is one of the reasons there is such extraordinary admiration of Nelson Mandela. This man, to use an inappropriate phrase was "entitled to be brutalised by his experiences" and one could understand some bitterness. For this man to spend his best years in prison in grim conditions and to come out with such generosity of sprit is extraordinary. I do not think anyone on either side of our conflict could ever match this. He has his imperfections, and as time passes and the forensic analysis of his life develops in a few years' time, we will find piles of clay. That will not diminish his extraordinary stature.

One of the things about which Irish society must learn is that violence is not something which is done by thugs and psychopaths. We had a civil war where people, who were perfectly respectable beforehand and afterwards, tolerated, condoned and sometimes carried out extraordinary activities. There is no political divide on this. The horrible thing is that brutality is a part of all conflict and that is what we are trying to confront here. I agree, however great my distaste, with the provisions of this legislation. We hope the legislation does what it sets out to do – to ease people's pain. The continuing campaign of deni gration against some of the people who disappeared is scandalous.

It would be improper of me while talking about this subject not to mention the recently surfaced campaign of denigration against Pat Finucane. This appears to be more than coincidental when this Government has appropriately, and within the frameworks of international agreements, assembled a compelling case. What intrigues me about this type of denigration from agencies of the State is that a public inquiry would be the quickest way to establish if all that was said about Pat Finucane was true. A public inquiry would demonstrate if his paramilitary connections existed. I do not believe a word of it. If it were true the easiest way to prove it would be in a public inquiry. One can only assume this is an attempt to head off a public inquiry. Once violence of this scale builds into society everybody is brutalised by it and everybody, however disciplined or ordinary, is capable of extraordinary indiscipline.

There is obviously a clear implication of some channel of communication with at least one paramilitary organisation through which came the request for this legislation although the Minister did not mention this in his contribution. The response to that request through this legislation, however painful, is correct. If a channel of communication is open – which for once is not simply what we accept to be the political representatives of that organisation – perhaps there is the possibility of dialogue on the other issue of decommissioning through equivalent channels to explore what we regard as totally incomprehensible territory. It only becomes comprehensible once there is movement from non-violence to violence.

I am interested in whether the Government or the British Government has assembled information on people who have disappeared who may be victims of paramilitary organisations other than the Provisional IRA. Sadly, brutality is not monopolised by a paramilitary or any other group. There is the less extreme, but equally disruptive, practice by paramilitaries of excluding people from the North by threats and intimidation. If we have moved to a situation of identifying, finding and giving a proper burial to those who have been murdered, surely we can begin the process of identifying, finding and allowing the people to return home who were driven out by paramilitary organisations. This would seem to be the logical consequence of it. Many of the people left the North because they were told that if they did not they would end up in the same situation as the families we are attempting to comfort in a small way.

I was interested in Senator Connor's proposal to have a truth commission. I would agree in principle but I would see a problem that a truth commission, as practised in South Africa, involves everybody. It does not only involve paramilitary organisations. I am not making any excuses for them but I am not sure that the undercover activities of the security forces would be allowed by the British or Irish Governments to be the subject of a public hearing in which individuals would identify themselves and say "I am X, I was an SAS officer in South Armagh and I killed Y". It would be a good and healthy idea. It seems to have done an enormous amount in moving South Africa on, although as everybody knows, it presents enormous problems, many of which relate to the presence of the huge amount of guns from a variety of sources. A truth commission cannot be a truth commission where there are paramilitaries and I am not sure we will get much further than that.

I am intrigued that the commission's functions end with receiving information on the location of remains, disclosing the above information for the purpose of facilitating the location of remains and reporting on its activities. Who will conduct these searches? It would be horrendous if the families were left with this burden. We must make clear who will do the searching, who will pay for and organise it. I know that the Garda Síochána have the power to search but I would like the Bill to state explicitly that the resources of the State will be unequivocally made available to search, identify and provide the forensic analysis required. My party welcomes and supports the Bill.

Mr. J. Cregan

I welcome the Minister of State to the House. It is difficult to say something new at this stage. Many excellent contributions have been made on all sides of the House. My feelings and thoughts are no different from those of others.

It is regrettable that such a Bill has to come before the House. If we can assuage some of the pain of victims' families it will far outweigh our regrets. The House of Commons passed the relevant legislation yesterday as did the Dáil and we are required to put the last piece of the jigsaw in place to give effect to the commission.

The Bill takes its origins from the Good Friday Agreement which has been mentioned by many people. I compliment all the parties involved in putting together the Agreement. Despite years of hardship, torture and pain they were able to sit down and reach agreement. Unfortunately, there has been a logjam in the discussions over the past number of weeks. I take this opportunity to wish all the participants well for their meeting at the weekend. I hope they can make progress.

This agreement was signed on 27 April 1999 by the Minister for Justice, Equality and Law Reform on behalf of the Irish Government and Secretary of State, Mo Mowlam, on behalf of the British Government. Immediately after the agreement was signed the Provisional IRA issued a statement to the effect that they had information which would lead to the recovery of the remains of nine victims. We welcome that statement which would not have come to light but for the proposed legislation and the agreement. The Bill will ensure that those who were tragically killed will receive a Christian burial. When someone loses a loved one they endure great sorrow, trauma and bereavement. The act of Christian burial, which we all respect, lessens the trauma and grief experienced. Unfortunately, the people we are speaking about did not have an opportunity to grieve in that manner. Everyone likes to visit the resting place of their loved ones to say a prayer. The commission, when established, will give the relatives of the victims an opportunity to do that.

Senator Henry referred to the interview given by the relatives of the victims after agreement had been reached on setting up the commission. They showed great appreciation for the fact that some of them would reclaim the bodies of their loved ones who were brutally tortured and murdered. They are to be complimented on their ability to be so gracious after so many years of grieving.

Senator Quill said that we are being asked to pay a very high price. I agree, but I think it is the right thing to do. It is highly desirable that the information required to allow for the discovery of people so that they can be properly buried by their families, be brought forward as quickly as possible. The introduction of this Bill is a sign of the maturity of our democracy. We can look forward and deal legislatively with past horrors. That is not confined to any particular section of the community as horrors were perpetrated on all sides. It is a sign of the maturity of our democracy that we can legislate to put the past behind us.

We hope that people with relevant information will come forward as quickly as possible so that these issues can be dealt with as a matter of urgency. Senator O'Donovan said he would like to see this matter dealt with over 12 months. I support that. If information is available it should be brought to the commission speedily.

Reference has been made to the make-up of the commission. With previous speakers, I believe it should consist of four or five members. The more eminent people there are on the commission, the more efficient it will be.

Section 11 provides for the dissolution of the commission. It would be wrong to put a time limit on its existence because some of the information may not be as forthcoming as we might hope. This represents another step in the ongoing process of healing within and between communities in the North. It also brings us a step closer to ending the serious injustice which has long been endured by families who have been denied information on the whereabouts of their loved ones.

The road to peace and reconciliation is never easy. Every section of society must be prepared to compromise if we are to achieve our objectives of peace, harmony and mutual respect. While we have all expressed reservations about the Bill, the reality is that without it and the agreement, the location of the remains of the victims might never be revealed. That far outweighs any regrets I have about forgiving the people who committed such crimes. If the commission can ensure that the whereabouts of these victims will be revealed to their families then we are doing the right thing. We must balance that against the perception that we are annulling the actions of the people who committed such crimes. We should not send out signals from the House that this is a form of blanket amnesty, that this legislation was introduced lightly or that it is something that will be contemplated ever again. I hope we never have to deal with such legislation again.

I hope this legislation will have the desired result and that we will return to repeal it at an early opportunity.

Minister of State at the Department of Public Enterprise (Mr. Jacob)

I thank Senators who contributed to the debate on this important Bill. I welcome the tone and content of the debate which was very constructive. It is a particular cruelty that the families of these victims have for so long been denied information on the burial place of their loved ones. One can only imagine the pain and suffering these families have had to endure over the past three decades. If this Bill, and the agreement, can help to lessen that pain and suffering, then surely it is incumbent upon this House to move as quickly as is prudently possible in this matter.

Questions have been raised about how quickly the commission can be established. As Senators will appreciate, the necessary legislation must be in force in both jurisdictions before the commission can be established. Progress in this House is mirroring progress in the House of Commons where equivalent legislation was passed this week. I understand the UK authorities hope to have their Bill before the House of Lords from 18 May.

That is the broad timetable in relation to the legislation in both jurisdictions. I can assure Senators that no undue delay is envisaged between the enactment of the legislation in both jurisdictions and the establishment of the commission. To this end discussions are continuing between officials of the Department of Justice, Equality and Law Reform and officials of the Northern Ireland Office with a view to making the necessary practical arrangements.

While the role of the commission is very important, it is not envisaged that it will be necessary to put in place very elaborate structures to enable it to carry out its work. The main functions of the commission are to receive and impart information. In practical terms where the commission is satisfied it has information which might lead to the location of a victim's remains, it will pass this information on to the Garda or the RUC who will take the matter from there.

Members of the commission will be appointed jointly by both Governments. The agreement provides that the commission shall have not less than two members. Senator Connor voiced his views on this. A number significantly, if at all, in excess of two, is not envisaged. Consultations are continuing about this and other matters and it is envisaged that decisions will be taken in sufficient time in the context of the legislative timetable.

It is not possible to indicate with certainty the number of victims of paramilitary violence whose remains have not been located. Figures of the order of 20 have been mentioned but, of their nature, such figures are speculative. As I mentioned in my opening speech, the Provisional IRA has indicated that it has succeeded in locating the remains of nine victims. However it is important to emphasise that the terms of the Bill apply to the victims of unlawful organisations which are defined in the agreement by reference to organisations proscribed in this jurisdiction under the Offences Against the State Act, 1939 or in the North under equivalent legislation. This should encompass the victims of any paramilitary organisations which have been active on this island over the past thirty years.

There are some differences of detail between this Bill and the equivalent measure in the UK. However, in drafting the Bill and in formulating our approach to this matter in general, officials of the Department of Justice, Equality and Law Reform have worked in tandem with their counterparts in the Northern Ireland Office in Belfast and the Home Office in London. This was very important given that both items of legislation must operate in tandem. Naturally, given the differences in law between Ireland and the UK, the wording of the UK legislation will differ in some respects from the wording of Irish legislation. This is not an important factor. It is important that even though it may be worded differently, the legislation in both jurisdictions will achieve the same objectives.

I can understand the misgivings some may have about certain provisions in the Bill. However, I repeat that the Bill does not offer an amnesty for offences. It provides that evidence resulting either directly or indirectly from the process, whether inside or outside the State, will not be admissible in any criminal proceedings on behalf of the prosecution. This non-admissibility of evidence might not be welcomed by everybody. However, without such a prohibition on the use of evidence, the evidence might never come to light. That would mean the bodies of the victims might never be found, and the families would continue to endure the torment of not knowing the burial places of their loved ones. We cannot allow that to happen. As I said earlier, the road to peace and reconciliation is not an easy one. Compromises must be made and balances must be struck.

In relation to the confidentiality of information provided to the commission, there is a provision which allows the commission to provide some information to the families of the victims, to the extent that families could be told whether information has been provided to the commission relating to the location of the remains of a victim and the place where, according to the information, the remains may be found. This will be a matter at the discretion of the commission.

It is understandable that much has been said by Senators about the plight of the families of victims. This is a difficult time for the families, having had their hopes built up that at long last in a number of cases the remains of their loved ones can be located. The families are particularly concerned at the possibility of distressing media coverage when the actual search for remains may take place. Given the agony already endured by these families we hope the media will be especially sensitive to these concerns.

A number of speakers also referred to the current situation in relation to the peace process. Clearly we are dealing with this legislation at what, it must be conceded, is a difficult time for the peace process. For several months, as we all know, there has been an impasse over the formation of the executive and its relationship with the decommissioning issue. Sadly, this has stalled the implementation of elements of the Good Friday Agreement. However, we remain convinced that all parties remain committed to the success of the Good Friday Agreement and that all are working in good faith to find consensus on the best way forward.

Huge efforts are being made, and will continue to be made, to explore whatever limited room for manoeuvre may exist. The two Governments remain absolutely committed to seeing the agreement implemented in full and will do everything possible to make it a reality.

The parties are continuing to meet in various formats, and the Taoiseach and Prime Minister Blair are in close and continuous contact. I am sure the House will join with me in wishing them every success in their endeavours. It is very important that dialogue continues. Without real engagement, an attempt to understand the other side's concerns and requirements and a willingness to compromise it will not be easy for us to reach the necessary consensus. In the disappointment of this present impasse, let us not lose sight of the very great progress that has been recorded over the past year. This progress would have been inconceivable not so long ago. This legislation is another step towards overcoming the terrible legacy of decades of conflict.

While we have not yet succeeded in finding the necessary consensus to move forward, be assured that nobody is walking and we are still talking. There is no other way forward. The agreement continues to represent the only viable way forward to that future of partnership and reconciliation for which we all wish. It is the will of the people, and it is the responsibility of political leaders from all traditions to ensure their will is done.

Some Senators, including Senator Quill raised concerns. There are no proposals to introduce similar legislation allowing immunities in relation to paramilitary style beatings, a practice we all abhor. A clear message should go from this House that these attacks should stop now.

A number of points raised by Senators fall within the remit of the Minister for Foreign Affairs. I assure Members that I will bring these points to the Minister's attention. Today's debate has been very useful and in the best tradition of this House. I thank Senators for their contributions.

Question put and agreed to.