Skip to main content
Normal View

Seanad Éireann debate -
Tuesday, 1 May 2001

Vol. 166 No. 7

An Bille um an Aonú Leasú is Fiche ar an mBunreacht (Uimh. 2), 2001: An Dara Céim. Twenty-first Amendment of the Constitution (No. 2) Bill, 2001: Second Stage.

Item 2, motion pursuant to section 23 of the Referendum Act, 1994, prescribing a formal statement for the information of voters to be included on the polling card, which will be debated in conjunction with Second Stage of the Bill, will be formally moved when the debate on the Bill is concluded.

Tairgeadh an cheist: "Go léifear an Bille an Dara hUair anois."

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

I am pleased to present to the House the Twenty-first Amendment of the Constitution (No. 2) Bill, 2001. As Senators will be aware, the death penalty has long been abandoned by the State as an appropriate form of punishment but references to it remain in the Constitution. Enactment of this Bill will enable the Government to proceed with the referendum to delete the two references to the death penalty in the Constitution and to prohibit its reintroduction in any circumstances by the inclusion of specific provisions to that effect.

I do not need to describe here the terrible realities of the death penalty or indeed the torment endured, often for many years, by those awaiting execution. We can take some pride in the fact that the death penalty was abolished in this State for offences other than treason, capital murder and certain military offences under the Criminal Justice Act, 1964. Though it had not been used since 1954, the death penalty was finally abolished in statute law under the Criminal Justice Act, 1990, but the statutory changes were not reflected in our Constitution. Without a constitutional prohibition it could be reintroduced again by statute.

The two references to the death penalty in the Constitution are to be found in Articles 13.6 and 40.4.5º. Article 13.6 provides:

The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities.

Article 40.4.5º, which is part of the habeas corpus provisions of the Constitution, provides:

Where an order is made under this section by the High Court or a judge thereof for the production of the body of a person who is under sentence of death, the High Court or such judge thereof shall further order that the execution of the said sentence of death shall be deferred until after the body of such person has been produced before the High Court and the lawfulness of his detention has been determined and if, after such deferment, the detention of such person is determined to be lawful, the High Court shall appoint a day for the execution of the said sentence of death and that sentence shall have effect with the substitution of the day so appointed for the day originally fixed for the execution thereof.

Article 28.3.3º is also relevant. That Article, inter alia, provides that nothing in the Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion.

The proposals in the Bill are for making amendments of both a technical and substantive nature to the Constitution. These amendments are intended to reflect the situation which pertained in Irish statute law since the passing of the Criminal Justice Act, 1990, and to take account of our international obligations. The Bill comprises two sections and a Schedule. Section 1 details the proposed changes to the Constitution by reference to the Schedule and section 2 is a standard citation provision.

The proposed changes set out in the Schedule relate to four Articles of the Constitution, Articles 13, 15, 28 and 40. These changes are as follows: the deletion of the reference to the death penalty in Article 13.6, which deals with the commutation and remission of sentences and specifies that such powers cannot be used in capital cases except by the President; the deletion of Article 40.4.5º, which makes provision for habeas corpus proceedings in respect of a person who has been sentenced to death; a new subsection 15.5.2º to the effect that the Oireachtas shall not enact any law providing for the imposition of the death penalty is to be inserted in Article 15.5 which deals with the powers of the national Parliament; and the amendment of Article 28.3.3º to exclude the new Article 15.5.2º from the override provisions of that Article so that the prohibition on the reintroduction of the death penalty will apply even in time of war or armed rebellion.

The approach taken in the Bill takes into account the views and recommendations of a number of important bodies. In proposing the removal of the words "except in capital cases" in Article 13.6, the Bill reflects the recommendation of the all-party Oireachtas Committee on the Constitution on that provision. Likewise, in proposing the prohibition of the death penalty by the inclusion of a new section in Article 15.5, the recommendation of the Constitutional Review Group is being implemented in the Bill.

The Government is of the view that mere deletion of the references to the death penalty in Articles 13.6 and 40.4.5º is not enough and that any constitutional amendment relating to the death penalty should include a constitutional ban on its reintroduction. This is reflected in the Bill by the insertion of a provision in Article 15.5 to the effect that the Oireachtas shall not enact any law providing for the imposition of the death penalty. This approach is also in line with the recommendation of the Constitutional Review Group. That group further recommended that, in the event of a provision being included in the Constitution prohibiting the reintroduction of the death penalty, Article 28.3.3º should be amended so that the death penalty could not be imposed even in the circumstances contemplated by Article 28.3.3º, that is, where a state of emergency is declared in accordance with that Article.

In its consideration of Article 40.4.5º, the Constitutional Review Group, noting that the death penalty had been abolished in 1990, pointed out that unless the death penalty were to be specifi cally prohibited by the Constitution and an appropriate amendment made to Article 28.3,3º, Article 40.4.5º would not be redundant and should be retained. Its reasoning was as follows. Article 28.3.3º provides that nothing in the Constitution shall be invoked to invalidate any law passed by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion. The Constitutional Review Group pointed out that unless an appropriate amendment was made to Article 28.3.3º, the override provisions of that Article, which permit the declaration of a state of emergency together with legislation in pursuance of that emergency, could be used by a future Government to re-impose the death penalty and it would be necessary as a minimum check on the legality of the operation of such emergency legislation to retain the provisions of Article 40.4.5º.

The Bill follows the recommendation of the review group in relation to the amendment of Article 28.3.3º. The amendment comprises an insertion into that subsection to exclude the new Article 15.5.2º from the override provisions of the Article so that the prohibition on the reintroduction of the death penalty will apply even in time of war or armed rebellion. The Government favours this approach on the basis that since, as a matter of principle, it is of the view that the death penalty is wrong in all circumstances, Article 28.3.3º should be amended accordingly. In making the proposed changes to Articles 15.5 and 28.3.3º, the retention of Article 40.4.5º as a safeguard provision will not arise.

I am aware that some people continue to express concern with regard to the abolition of the death penalty in the context of the protection of certain public servants in the course of their duties, such as members of the Garda Síochána and prison officers. The Criminal Justice Act, 1990, which finally abolished the death penalty, also put in place strong measures to deal with the protection of such public servants. Under section 4 of the Criminal Justice Act, 1990, the court, in passing sentence, shall specify a minimum period of imprisonment to be served of not less than 40 years for capital murder. In the case of an attempt to commit a capital murder, the court shall specify a minimum sentence of 20 years. Such severe penalties were introduced specifically to emphasise the seriousness with which such atrocities are viewed.

There are further issues relating to our international obligations which are of relevance. Ireland has ratified two international instruments relating to the abolition of the death penalty. They are Protocol 6 to the European Convention on Human Rights, ratified on 24 June 1994, which abolishes the death penalty but allows for a derogation in time of war or imminent threat of war, and the Second Optional Protocol to the UN International Covenant on Civil and Political Rights, ratified by Ireland on 18 June 1993, which also abolishes the death penalty but allowed for the possibility of a reservation in time of war, which possibility the Government declined to avail of on ratification in 1993.

Given our stance at international level on the subject and, in particular, our ratification of the Second Optional Protocol to the UN International Covenant on Civil and Political Rights, the proposals as outlined in the Bill are in line with our international commitments. I might add that Sweden has recently introduced a proposal for an additional protocol to the European Convention on Human Rights to abolish the death penalty completely and the Government has been supportive of this proposal. I would also expect that our current position as a member of the United Nations Security Council will heighten international awareness of the measures being taken by Ireland finally to ensure that the death penalty will no longer be used in this State. The terrible reality of the death penalty has thankfully not been part of our criminal law system for some time. Although only finally abolished by the Criminal Justice Act, 1990, the death penalty has not been used in this country for almost 50 years.

The deletion of the references in Articles 13.6 and 40.4.5 and the insertion of a prohibition in Article 15 give constitutional protection to what has already been done by statute. More importantly, however, the amendment relating to Article 28.3.3 means that the override provisions of that article, enabling the re-introduction of the death penalty in time of war or armed rebellion, could not be used at any stage in the future. By providing for a referendum to be held on this issue, the people of this State are being given the opportunity not only to amend the Constitution to reflect modern thinking and values, but to also send a clear message to the international community of the abhorrence with which the death penalty is viewed by the people of this State. I urge Senators to do their utmost to encourage people to turn out and vote on referendum day in support of the amendment.

I commend this Bill to the House.

I fully support the Minister's proposal to introduce an amendment to the Constitution to prohibit capital punishment. As he stated, the Bill effectively enshrines in the Constitution that which already exists in statute.

There has not been an execution in this country since 1954 and it is an appropriate and opportune time to introduce this amendment which will give constitutional protection to all citizens. It will come as a surprise to many members of the public that they are being asked to vote on this particular issue because, in general, they believe that capital punishment was abolished long ago. Many people are not aware that a person can still receive the death penalty for the murder of a member of the security forces, a garda, a prisoner officer or a member of the diplomatic corps. The Fine Gael Party fully supports both the Bill and the campaign to ensure that this amendment to the Constitution is passed.

Even when it is passed, however, it is important that protection will continue to be provided to those such as gardaí and members of the Army or diplomatic corps who serve in this country. It is important that the penalties handed down in capital cases – such as imprisonment for 40 years – are retained. The prohibition should not be lessened or the level of deterrence reduced by virtue of the fact that we are constitutionally removing the death penalty.

The right to life is a basic fundamental human right and we cannot condone removing that right from anyone, regardless of what he or she does within the community. Nevertheless, substantial deterrents must be put in place. Has the Minister had discussions with the people directly affected by this, such as members of the Garda Síochána, representatives of the Army or the diplomatic corps? Perhaps the Minister might refer to that in his reply.

It is also equally important that people are educated about the issue between now and referendum day. It will come as a surprise to many people that they are being asked to vote on this issue. I commend the Minister, his Department and his officials for responding to the recommendation made by the all-party Oireachtas committee in 1998 to remove the death penalty from the Constitution. It is important to include in the Constitution the Sixth Protocol of the European Convention on Human Rights, which Ireland signed.

We are in a unique international position as a member of the UN Security Council and of the European Union. Although we are introducing legislation to put to the people in a referendum, our moral authority and responsibility do not end there. We have a role to play on the international stage at European Union level and in the United Nations. I urge the Minister, the Taoiseach and all the representatives of the Government to use their moral authority at international fora.

It is important to clearly outline our position, particularly given our special relations with the United States. It is also important that we do not allow economic considerations to cloud our view in terms of fundamental human rights. Human rights must take priority at all times. We have a moral authority to repeatedly convey to the United States our abhorrence at the level of executions in various states. During his term as Governor of Texas, George Bush allowed a number of executions in that state. He is now President of the United States. We should be concerned about a possible hardening of attitudes in relation to the issue of the fundamental right to life. We should urge the President and the diplomatic corps to campaign for the abolition of capital punishment in the United States.

The fact that the United States is a powerful economic force worldwide should not deter us from exhorting and encouraging it to protect people's basic fundamental rights, as outlined in the United Nations Charter. As a country which sets itself up as a champion of human rights and condemns actions in some Third World countries, it is serious when an analysis of the number of capital punishments across the world shows the United States at the forefront in terms of the execution of juveniles and of handicapped or mentally retarded people. This reflects badly on the United States. We should not be shy or ashamed to convey our viewpoint because by doing so we are conveying the views of the majority of Irish people and of people in the European Union. We should encourage our European Union counterparts to express similar views at every given opportunity so this practice will be stamped out in the United States.

Arguments are regularly made, particularly in the United States, that the death penalty is a deterrent to crime, but there is no evidence that this is so. The death penalty was removed in Canada, I believe in 1974, and since then statistics have shown that the level of crime has reduced dramatically. It is important that we turn that argument on its head and do so forcefully, unequivocally and fearlessly.

Capital punishment, in effect, has led to cases of murder. Once a person has been killed by the electric chair or whatever method, there is no comeback. If evidence subsequently emerges which proves these people innocent, that is an appalling travesty of justice. This has happened in various places around the world. Over the past 25 or 30 years in the United States, over 73 people have been released where evidence has shown that they had not committed the crimes.

For diplomatic and economic reasons, we have not been sufficiently assertive internationally. At a time when we are in a strong economic position, I believe we have the moral authority to articulate a very specific view and I encourage the Minister and the Government to do so.

This is very timely. It warrants full explanation to educate the public. I hope the Government will undertake a very clear campaign at an early date. It will have the full support of the Fine Gael Party in ensuring that this amendment is passed so that there is protection in the Constitution to ensure that nobody can have their life taken for any offence in the future. I commend the Minister for bringing the Bill to the House.

I welcome the Minister to the House. I support the Twenty-first Amendment of the Constitution (No. 2) Bill, 2001, the purpose of which is to facilitate the holding of a referendum, which will remove the death penalty from the Constitution. I am pleased to be a Member of the Oireachtas which is bringing forward this referendum and I look forward to its full support by the people. I hope very few will cast their votes against it.

Legislation was passed in this House in 1964 to abolish the death penalty for most offences. The death penalty was finally abolished in 1990 but references to it were not removed from the Constitution. It is approximately 50 years since the last execution was carried out. The overwhelming majority of the people have no recollection of a death penalty being enforced. Given that the practice for at least two generations has been not to implement the death penalty, it is correct that the Constitution should reflect that reality and the wishes of the people. I look forward to this taking place in the near future.

The abolition of the death penalty contributes to the enhancement of human dignity and the progressive development of human rights. It would be easy to convince the people as we know the death penalty does not work as a deterrent. In numerous countries that have the death penalty, we have seen that it does not reduce crime, does nothing for human dignity and, above all, flies in the face of God. It is God who gives life and He should take it away.

Some people might be in favour of the death penalty, but it is not an effective deterrent. The USA has a much higher murder rate than most other countries, despite its extensive use of the death penalty.

The legislation finally provides for the death of the death penalty. I always look with shock and horror at how the death penalty is used in countries where it still exists. While it remains in countries like China, it also remains in free countries like the United States. I know a little about the position in America based on the publicity arising from the exercise of the death penalty. The issue is more in the public domain in the US than in China.

The death penalty is exercised in most states in America. Prisoners are put on death row having been convicted of a murder or murders and the horror of this in many instances is that they are held there for many years. That is one of the terrible spin-offs of the death penalty in the US. I strongly urge the authorities there to look into their hearts. They will not listen to me but there is a strong voice in many countries, including Ireland, to which they may listen. I reflect on the death penalty particularly in the context of its application in the US. There, one is placed in a death cell and then brought to a room to receive a lethal injection. It can take considerable time to descend into unconsciousness and finally death. This may be after lingering in one's death cell for up to 20 years.

I thank the Minister for finally bringing Ireland to a position where the death penalty cannot be applied in any circumstances. This legislation provides for the amendment of the Constitution to delete references to the death penalty and to prohibit its reintroduction under any circumstances, even in time of war. The legislation provides for the deletion of references to capital cases in Article 13.6. In reflecting the current position on the abolition of the death penalty, the article deals with the commutation and remission of sentences and specifies that such powers cannot be used in capital cases, except by the President. The legislation also provides for the deletion of Article 40.4.5º which makes provision for habeas corpus proceedings in respect of a person who has been sentenced to death.

The Bill provides for the inclusion of a specific provision in Article 15.5.2º that no law should be enacted providing for a sentence of death. An amendment to Article 28.3.3º, the effect of which is prohibition under the new Article 15.5.2º, would continue to apply even in time of war. Article 28.3.3º allows for the Constitution to be overridden for the purpose of securing public safety and the preservation of the State in time of war or armed rebellion. These latter provisions reflect the stand taken internationally by Ireland in its application of the sixth Protocol of the European Convention on Human Rights which abolished the death penalty except in time of war, and its ratification without reservation of the second optional Protocol of the United Nations International Convention on Civil and Political Rights which provides for the abolition of the death penalty even in time of war. This is what the people are asked to do in an upcoming referendum to amend the Constitution.

It is almost 50 years since the death penalty was used in Ireland – the last execution was in 1954. The Criminal Justice Act, 1964, abolished the death penalty for offences other than treason, capital murder and certain military offences. The death penalty was finally abolished in statute law under the Criminal Justice Act, 1990, but not in constitutional law. I pay tribute to the Oireachtas All-Party Committee on the Constitution and the Constitutional Review Group which considered the death penalty provisions of the Constitution. The All-Party Committee on the Constitution which reported in November 1998 recommended the deletion of the reference to capital cases in Article 13.6. The report of the Constitutional Review Group in May 1996 recommended the deletion of Article 40.4.5º and a provision banning the reintroduction of the death penalty including an appropriate amendment to Article 28.3.3º.

I welcome this very important legislation and I urge a strong vote in its favour. I hope that a full and frank explanation of the legislation will be given to citizens to ensure that we send the strongest message to countries that still exercise the death penalty. We have seen travesties of justice take place in recent years. Where prison sentences have been handed down there is some room for redress if it is found that wrong decisions were made. In the case of the death penalty, there can be no redress for the unfortunate victim. It is sensible to remove all reference to the death penalty from our Statute Book. I commend the Bill to the House.

I wish to share my time with Senator Norris.

Is that agreed? Agreed.

I welcome this Bill to amend the Constitution and I congratulate the Minister for Justice, Equality and Law Reform for bringing it in so promptly and for recognising the need for it not only in terms of the legislation but in the Constitution. Not long ago in this House, Ministers for Justice from both Fine Gael and Fianna Fáil opposed, delayed, procrastinated, put off and, in effect, defeated measures to remove the death penalty from legislation. That was in the mid to late 1980s. In the civilised world in which we live, it is easy to forget that there were many who did not wish to remove the death penalty from Irish law.

At that time the death penalty was on the Statute Book "only" for the murder of a garda or a prison officer. It was there for a specific purpose because there was a large and vocal body of gardaí and prison officers who felt that it protected them in some way. It was never used in this period but there was a series of ghoulish circumstances where people, whose actions cannot be defended in any way, were sentenced to death. These sentences were then commuted by the President on the recommendation of the Government. It is conceivable that in the event of a ghastly murder and a public outcry, politicians might find it difficult to resist public pressure for the execution of those who had committed unacceptable and savage crimes. This has occurred in the United States.

It is welcome that the death penalty should be taken completely out of the political arena where it has been for many years. The refusal of the Government until 1990 to remove it from the Statute Book was specifically because of the strength of a political lobby group. This Bill takes the death penalty one step further from a political lobby group. There are certain standards which we must uphold. This is what legislation is about, whether right or wrong. It is about what we believe is morally right. One of these things is the protection of human life at all stages. That is what this Bill is about and I commend the Minister for this. I speak from some experience as I introduced the Bill in this House to abolish the death penalty, supported by Senator Norris. I found that a frustrating experience. The Fianna Fáil Government of the day introduced a Bill which was almost identical to the one we had introduced. I welcome that.

However, there are areas of hypocrisy in this Bill with which I have difficulty. How can the Minister introduce a Bill which is so right in its thinking and so direct in its approach, yet so dishonest in its schizophrenic attitude to other countries? We do nothing about the barbaric practices in the United States where there are executions almost daily. Protests from Ireland are mute if they exist at all. Whereas we make a great virtue of this Bill, which will undoubtedly be passed by the people, we are silent in the face of barbaric executions in the United States. The posistion there is worse than elsewhere because it appears the death penalty is used as a social weapon. Why is it that 80% of the people hanged, electrocuted or killed by other means in the US are black? How many protests have been made at a high level by the Minister for Foreign Affairs to the Bush administration about its extraordinary bloodlust? There are serious inconsistencies in what is happening here today.

What action is the Government taking about the Nigerian Government with which we freely trade? The Nigerian Government appears to execute its political opponents on the basis of flimsy evidence and we must condemn that in the strongest terms. The Fianna Fáil Party made a virtue of not trading with South Africa. It continually and properly protested to the white South African Government about executions carried out in that country and imposed sanctions on its savage regime for reasons not unrelated to the death penalty. We could applaud that behaviour had the Fianna Fáil Party acted consistently in regard to the US and Nigerian Governments. The oppression of certain people in Nigeria led to executions in that country. Did Shell, which trades happily here, protest against those executions? The company did nothing. What does the Government say to Shell? The Government's attitude to the death penalty is hypocritical.

This is a tremendous Bill but I will conclude with a question to the Minister. What does the Government intend to do about the imminent ghoulish execution of Timothy McVeigh in the US? The crime he committed was unforgivable and merited the imposition of the most severe sentence possible, being locked up forever. If Ireland disapproves so strongly on moral grounds of the death penalty in all circumstances, why does the Minister not call in the US ambassador to hear the Government's views on this barbaric practice? He will not do so. Rather, he will state that Ireland disapproves of the death penalty but will turn a blind eye to it in the US.

Prior to the introduction of the 1990 legislation, there was a third dubious reason for executing people, namely, treason. It is extraordinary that such a crime existed up to ten years ago. The crime of treason is open to the widest possible interpretation. Treason can be covered by other crimes unless it has political connotations. This Bill takes out of the political arena a principle in which the Members of this House believe strongly and unanimously so that we will no longer be subject to fickle and sometimes bloodthirsty public opinion which, in some circumstances, is understandable. I congratulate the Minister on the introduction of this Bill.

I welcome this Bill but I rise principally to congratulate my colleague, Senator Ross, who has been active in this area for a number of years. I recall his valiant attempts, when I was first elected to this House, to get a Bill abolishing the death penalty passed through the Seanad. The Government introduced a similar Bill at that time which has acted to the moral welfare of this country.

The entire apparatus of death is revolting in its legal context. The charade of a judge, in his dignity, donning a black cap and reciting the ancient formula, the involvement of the State in the preparation of one of its citizens for death and the careful selection and maintenance of the instruments of death cannot have had a morally beneficial effect on the unfortunate people required to carry out murder on the State's behalf. It always struck me as laughable that we insisted on retaining the preamble to the Constitution which invokes the godhead and the Christian religion while the death penalty contradicted one of the most basic commandments, "Thou shalt not kill".

People commit appalling crimes, the murder of a garda being one. They carry out horrible and gruesome multiple murders and premeditated murders, and the natural human instinct, on occasion, of the family members of the people killed in this appalling manner is to seek vengeance. However, one must ask whether the State, as an institution, should ever sink to the level of the death penalty. I do not believe it should. It could never be argued that the State acted as a result of a momentary aberration or that its actions were a crime passionnel. A state execution must, of its nature, be deliberately and carefully premeditated and planned and that constitutes a fundamental violation of human rights.

When I first read the Bill, I considered it to be unnecessary window dressing which would result in the Minister obtaining some positive publicity in the area of human rights. It is highly unlikely that we would ever again confront a situation in this country in which a Government would contemplate the introduction of the death penalty and if that were to happen, it would only happen in circumstances in which a huge majority of people exerted pressure on the Government. Indeed, this Bill would not prevent the reintroduction of the death penalty because if there were such overwhelming public feeling, the Government could reverse what it is doing today in a referendum. The Minister, in his speech, outlined the reason for this Bill. The Government's legal advice is to the effect that unless Article 28.3.3º is amended, its override provisions could, if an emergency were declared, allow a Government to introduce the death penalty without recourse to the Irish people and in defiance of their wishes. For this reason, the Bill is not merely a cosmetic exercise but has real legal purpose and validity.

Senator Ross referred to the American experience which is undoubtedly horrific. I recall the death penalty in Britain. I read Ludovic Kennedy's Ten Rillington Place in which it was perfectly obvious that the unfortunate Timothy Evans was taken to the gallows and executed when he was completely innocent of the crime of which he was accused. His trial was manipulated by his landlord, John Christie, who was regarded as an evil genius.

Senator Ross asked why 80% of the people executed in the US are black. Any analysis of statistics in this area shows that the overwhelming number of people executed are black, mentally subnormal and come from very poor backgrounds, as a result of which they receive very inadequate defences. A number of people have been executed in the United States in recent years in circumstances which would cause great concern to anyone of a civilised disposition. When people have been inadequately represented or, subsequent to their conviction, convincing evidence of their innocence has been unearthed, it has proved impossible to reverse the death penalty. One of the reasons is that in most states of the union it is an exceedingly popular political exercise. I would be something of an admirer of former President Clinton but even he executed someone in Arkansas in the run up to the presidential election in which he was first elected. George Bush is notorious in this area.

On the question of Timothy McVeigh's execution, the crime for which he was justly convicted was an appalling and monstrous one. It was a crime of mass murder which was calculated coldly and in a premeditated fashion, yet I do not believe that even in that case the state should sink to that level of premeditation. What really worries me is the ongoing attempts in the United States by some of the commercial TV networks to obtain the right to broadcast live the infliction of the death penalty. One would need the ironic satiric gifts of the late Dean Jonathan Swift to deal with the application of a licence for the live broadcast of a death, something which is grotesque and obscene. However, there are two ways of looking at it. It is a really despicable attempt on behalf of some networks to make money out of the putting to death another human being, but if it forced the American people to confront the reality of what is being done in their name and sicken them, that would be a good thing. Nevertheless, my experience of American television, particularly late at night, suggests there may be merely a hardening of attitudes as people have been desensitised by the amount of violence on American television.

I always enjoy visiting the United States and I do not wish to portray myself as an enemy of that country. However, I have strong reservations about certain issues. It seems to me that one of the principal reasons for retaining the death penalty, in addition to its political popularity, is that it is cheap. It is a very cheap alternative because it costs a great deal of money to keep people in jail. The imposition of very lengthy sentences, including life imprisonment which means exactly that, will cost the state a great deal of money. Therefore it is cost effective to put people to death.

One should broaden one's range and not just confine it to the United States of America. Iran, for example, and all the Gulf states routinely involve themselves in executions that are public spectacles. I suppose for that reason they are considered useful as a deterrent, even though it is extremely unlikely they operate as such. It is horrible to contemplate being placed under sentence of death. It rarely strikes one unless there is a case like that of Timothy McVeigh or one is contacted by Amnesty International as part of its programme of writing to governments, including the United States government. I wish to put on record my admiration for the continuing work of Amnesty International in campaigning ceaselessly against the death penalty. It is horrible to contemplate that one's life will be terminated at a specific time by other human beings when there is no necessity for it. I cannot imagine what it must be like.

I have just finished reading the new biography of Queen Elizabeth I by Professor Starkey. In it he retells the story of Elizabeth's mother, Anne Boleyn, who was condemned as a result of the machinations of her husband, Henry VIII, and the pathetic response of that woman who asked for the special favour that instead of being strangled or whatever, she should, as a member of the royal family, have the privilege of being beheaded standing up, which is what happened. She said, "Mine is but a little neck", and so it proved. She had to stand while a man managed to cut off her head with one swipe of the sword.

I found that very chilling because I had just been reading of two women who had been accused of being lesbians and who were similarly executed in a provincial city in Iran. When I raised the issue of this type of punishment in Iran at a meeting of the Committee on Foreign Affairs some years ago, some members of the Iranian delegation and our Parliament laughed. I assume on the part of the Irish parliamentarians that was because it was so remote from their experience that they could not understand it.

I begin by congratulating the Minister on bringing this incredibly important legislation before us. In doing so, he is following in the footsteps of another great Minister for Justice who introduced legislation in 1964 to abolish the death penalty for all but three categories of offences. I refer, of course, to Mr. Charles J. Haughey whose reforming zeal in his many ministries was ever evident. I say this legislation is incredibly important because it is.

If the Bill is passed and the amendment is carried, the State will no longer be officially involved in the revengeful taking of life. However, I cannot say it is timely because the legislation should have been passed long ago in what we claim to be a civilised country. I am pleased we are becoming more civilised daily, because a great Christian existentialist, Nikolai Aleksandrovich Berdyaev, said that the condition of people's moral consciousness may be gauged in a sense by their attitude to capital punishment. As we move towards the elimination of this barbarous archaic custom, I hope we will take one step upward to a higher plain of civilisation.

It is all too easy to give into the demands of those who call for the retention of capital punishment. I can understand their fears and empathise with those members of our peacekeeping forces and security forces who, from time to time, may come face to face with a gangster or terrorist who, because of madness, greed or adherence to some misguided philosophy, remorselessly guns down one of their number. The Garda Síochána, in particular, have lost men in such circumstances and have called, understandably, for the retention of the death penalty.

The death penalty is a punishment that is intolerable to the imagination. If one cares to contemplate this, one will be forced to agree it is a public sin of sloth. Why do those who call for the retention of capital punishment do so? Their principal argument is that it has value as an example where the State does not hang people to punish them but to intimidate by a terrifying example those who might be tempted to imitate their actions. They claim society does not hang people for revenge, it merely protects itself.

I put it to the House that there exists not one whit of scientific evidence to support the claim that the existence on the Statute Book of a law requiring capital punishment, whether as a reality or a threat, will stop an angry, insane or psychopathic person committing a murder. I also put it to the House that most of the Irish people do not believe the execution of a convicted murderer or someone guilty of treason has much value as an example. If they really believed this, why are there not public executions which would be filmed and repeatedly shown on television? That is where all the potential murderers would learn from example. Of course, people no longer believe this. We no longer hang people in public or in private, nor would we agree to the publishing in our daily newspapers pictures of a condemned man swinging from a noose. If we really believed or subscribed to the idea of capital punishment being used as an example to all, surely we would be hanging people in the middle of Croke Park, where there is seating capacity for thousands. People would be invited from near and far, refreshments would be served, the whole family could attend, children could come along for the day and soon no more horrific crimes would be committed.

Do we really believe this? We should not speak any more about the effectiveness of the death penalty as an example. While the scenario I sketched may appear to us in Ireland as unreal, it is not as far-fetched as it seems. Closed circuit television is used in the United States of America to view people as they go through the throes of the death penalty.

The death penalty is carried out in public in many countries. An article by Patrick Comerford called "When the state kills" in The Irish Times on Thursday, 17 August 1989, stated:

In many countries the death penalty is carried out in public. In Nigeria, where many prisoners have been publicly shot, thousands have come to witness the spectacle. In China, public executions are common despite being pro hibited by law. In Saudi Arabia, the corpses of those beheaded are displayed in public for up to an hour. Public executions are staged in many countries as a deterrent against crime, but research carried out in the United States [surprisingly enough] suggests that these executions may have the opposite effect, brutalising society and causing more violence.

Men, women and even children are executed around the world. They are hanged, shot, electrocuted, gassed or poisoned. In seven countries – Iran, Mauritania, North Yemen, Pakistan, Saudi Arabia, Sudan and the United Arab Emirates – certain prisoners are stoned to death, usually for adultery. Beheading by sword is used in at least five countries – Mauritania, North Yemen, Qatar Saudi Arabia and the United Arab Emirates. Several blows are sometimes needed to sever the head, depending on the weight of the sword and the strength and accuracy of the executioner, and shooting by firing squad does not make it any quicker because, as it is an easier target, a squad may be told to aim at the body rather than the head. In Taiwan, a prisoner was found to be breathing over an hour after the first two volleys had been fired.

Execution still happens in many countries in public. For example, between 1983 and 1989, 900 people were executed in Nigeria, many of them in front of huge crowds, including children. In Iraq, more than 2,000 executions have taken place during the past 20 years. In Iran, since the revolution, thousands have been executed. Some of these have been carried out in public and the victims were shot, hanged or stoned. The article I mentioned earlier also describes a stoning. It states:

According to one eye witness account of a stoning in Iran, a lorry "deposited a large number of stones and pebbles beside the waste ground and then two women were led to the spot, wearing white sacks over their heads." The women were "enveloped in a shower of stones and transformed into two red sacks", according to the eye witness. The wounded women fell to the ground and the revolutionary guards smashed their heads in with a shovel to make sure they were dead.

George Bernard Shaw said:

Criminals do not die by the hands of law; they die by the hands of other men. Assassination on the scaffold is the worst form of assassination because there it is invested with the approval of society. It is a deed, they teach us, not the name we give it. Murder and capital punishment are not opposites that cancel one another, but similars that breed their kind.

It is a compelling thought. I do not believe the argument that execution acts as a deterrent and I do not subscribe to the idea of capital punishment as an example. Countries which use it have not reduced crime or civil unrest – sometimes, the opposite appears to be the case. For example, executions in South Africa during the last decade before Nelson Mandela took over averaged approximately 100 a year – sometimes the figure rose to 200 a year. The death penalty in South Africa was mandatory for murder. This included conspiracy to murder and even being present in a crowd when murder was committed. Yet, the crowds gathered ominously in that beleaguered bastion of apartheid at that time. Far from being afraid, their resolve was strengthened although the death penalty was in place.

In the United States, approximately 2,000 prisoners are on death row awaiting execution while lawyers get rich from appeals and counter appeals. This is nothing short of barbarity. It is interesting to note that 50 years ago, on 21 November 1951, the late Seán MacBride said in Dáil Éireann that it was "probably no exaggeration to say that the concept of capital punishment had its origin in barbarism." Capital punishment cannot intimidate a man who does not know he will commit a murder. It will not intimidate a man who deliberately sets out to perform a pre-meditated murder. Arthur Koestler related a story from the time when pickpocketing was punishable by death in England. When a pickpocket was being hanged, other pickpockets worked the crowd.

Statistics during the first 50 years of the last century show that of 250 men hanged in England, 170 had previously attended one or even two public executions. As late as 1886, from a total of 167 men condemned to death in Bristol prison, 164 had attended at least one execution. These facts speak for themselves. Other statistics show that in the countries that have abolished the death penalty, the incidence of crime remains the same. It neither increases nor falls. It appears safe to conclude that there is no connection whatsoever between the existence of capital punishment and crime. The death penalty does not intimidate anybody.

It is true that nothing proves that the death penalty is exemplary. It is certain that thousands of murderers have not been intimidated by it, but one cannot know who has been intimidated by such a penalty. Consequently, nothing proves that it does not serve as an example. Some people are willing to allow the penalty that involves the ultimate forfeiture of the condemned man. Yet, the exercise of this privilege by society, that is, a fixing of the man on the definitive rigidity of death, is based on nothing more than unverifiable possibility. There are other objections – capital punishment brutalises us all. William Makepeace Thackeray went to see a man being hanged and wrote On Going To See A Man Hanged. He said:

Blood demands blood. Does it? The system of compensation might be carried on ad infinitum, an eye for an eye and a tooth for a tooth, as by the old Mosaic law. Why, because you lose your eye, is it that your opponents must be extracted? Where is the reason for the practice? Knowing that revenge is not only evil but useless, we have given up on minor points. Only to the last, we stick firm. I came away from Snow Hill that morning with a disgust for murder, but it was for the murder I saw done. I pray to Almighty God to cause this disgraceful sin to pass from among us and cleanse our land of blood.

I pray that our lust for revenge will not be satisfied by the taking of a life. All human life is sacred. Only God can give life and only God should take it away. Even Leonardo da Vinci said:

And thou, man, who by these my labourers dost look upon the marvellous works of nature, if thou judges it to be an atrocious act to destroy the same, reflect that it is an infinitely atrocious act to take away the life of man.

We see daily the taking of life in the name of peace. Disregard for the life of another is exemplified par excellence in the systematic murder daily of thousands of innocent people in our so-called civilised world. I refer to the unborn, the young nestling in their mothers' wombs who are systematically poisoned or sucked out in pieces, their tiny bodies ending mutilated in the refuse sacks of modern, sterile medical clinics. Their lives are ended almost as soon as they have begun. We should not add to this disregard for human life. We should end, once and for all, this barbarism.

Seán MacBride was a distinguished lawyer and he did not lightly refer to capital punishment as barbarism. I stress the barbarity of the act because I want people to appreciate that when a man is hanged, he is hanged in their name and on their behalf, as Fr. Austin Flannery said, "most obviously so in a democracy". We would all share the responsibility if a hanging occurred. It is an awesome responsibility.

We claim to revere human life, yet in the name of the law, we may take it. The great Quaker reforming politician, John Bright, said:

A deep reverence for human life is worth more than a thousand executions in the prevention of murder and is, in fact, the great security of human life. The law of capital punishment, whilst pretending to support this reverence, does in fact tend to destroy it.

What of all the innocents who died on the gallows? We think of the execution of William Orr, whose innocent body swung from the gallows in Carrickfergus on 14 October 1797. He was a United Irishman, a champion of northern Presbyterian patriots. His execution was one of the darkest blots of the administration of English rule in our country. In our day, there have been many summary executions which, although lacking in the panoply of the courtroom, were nevertheless executions carried out at the behest of the State. Everyone asks what would have been the outcome if the Guildford Four had been hanged? The reply would probably be "too late, too bad".

The State has an awesome responsibility where it can decide to snuff out someone's life. The person may later be proved innocent of the crime of which he or she was originally accused. This awesome responsibility does not sit well upon my shoulders and I do not want to be a part of it. It is important to speak openly of the reality of capital punishment. We have a habit of pushing unpleasant things out of our awareness. Albert Camus, speaking of this tendency, said: "The death penalty is to the body politic what cancer is to the individual body, but perhaps the single difference is that no one has ever spoken of the necessity of cancer."

Let us move to a more enlightened age where we no longer resort to State violence as an instrument of revenge. Let me end with the words of Victor Hugo who said:

In the early ages, the social edifice rested on three columns – Superstition, Tyranny, Cruelty. A long time ago, a voice exclaimed "Superstition has departed!" Lately another voice has cried "Tyranny has departed!" It is now full time that a third voice shall be raised to say "The Executioner has departed!"

I congratulate the Minister on bringing this legislation before the House and I congratulate the Government on bringing it forward. Is Ireland the first country in the world to bring capital punishment before the court of public opinion to have it abolished? I believe it may be. I do not remember hearing of any other country in the world where public opinion was asked to remove capital punishment from legislation. I congratulate the Minister on his courage and I am sure all Members will ensure his courage in bringing this forward is rewarded.

There is a need to follow on further with legislation concerning murder, especially given the report from the Law Reform Commission in 1996 on sentencing in which, I am sure the Minister and Members will recall, it was recommended that there should not be minimum and mandatory sentences. Mandatory sentences are the only ones available to judges when they sentence people for murder. In some cases, mandatory sentences of life imprisonment may seem too little because everyone knows the person will be released in eight to ten years, while in other cases, for example, domestic murders, which comprise most murders, they may seem too harsh or too long, although taking someone else's life is a most appalling crime. I hope that, from this, we will proceed to examine changing the legislation concerning murder and, as the report suggests, removing the mandatory life sentence for murder so that judges have some discretion in sentencing those who have committed murders.

Another paper I have read, which I am sure the Minister and Members have also read, is the consultation paper of the Law Reform Commission on homicide and the mental element in murder. It makes me believe that a debate on this topic in the Seanad would be worthwhile. I am concerned by one aspect of this report, namely, the position regarding intention. Section 4 of the Criminal Justice Act, 1964, defines the mental element in murder as "an intention to kill or cause serious injury". There is, apparently, little Irish authority on intention, but the report states that, in England, intention:

...has been interpreted as embracing, in addition to situations where it is the actor's conscious object or purpose to kill, situations where, although it may not be the actor's object or purpose to kill, he nevertheless foresees death as virtually certain to result from his actions.

We do not know what exactly "intention" means in Irish law, and the Law Reform Commission report states that, because of the scarcity of reported Irish authority on the matter, it is difficult to give a precise answer to the question as to what intention means.

Two questions are asked on page 16 of the report which are taken directly from a unanimous decision by the Law Lords in England. This section of the report considers the importance of foresight and says that, in rare cases, it may be necessary to direct a jury by reference to foresight of consequences. Two questions arise. First, was death or serious injury a natural consequence of the defendant's voluntary act? Second, did the defendant foresee the consequences as being a natural consequence of his act? It is concluded that, if the answers to both questions are in the affirmative, an inference could be drawn that the defendant intended the consequence. In chapter two in section 2.14, the matter of foresight of consequences is discussed and the importance that the greater the foresight of the consequences has regarding intention. In chapter three, section 3.04 states: "A person has an ‘intent to kill' if he means his actions to kill, or if he is willing for his action, though meant for another purpose, to kill in accomplishing that purpose."

Senator Lydon raised the issue of abortion and his concern for the life of the unborn. I am concerned in this discussion with examining the life of the expectant mother, if her life is in danger, and the position of a doctor who may be obliged to perform a termination in certain circumstances. We have not introduced legislation dealing with abortion, even though we have been roundly criticised by the Judiciary for not doing so for some years and despite the promise of the former Taoiseach, Deputy Albert Reynolds, that he would introduce such legislation if any of his amendments to the Constitution were defeated in 1992. As the Minister will remember, one of those amendments was defeated.

As we have given the life of the unborn the position it has in the Constitution since 1983, could a doctor who gives medical treatment to save a woman's life but which terminates the life of the unborn be accused of murder? It is certain both questions I posed could be answered in the affirmative, namely, if death or serious injury was a natural consequence of the defendant's voluntary act, and if the defendant saw the consequence as a natural consequence of his act. There is even more trouble in the Law Reform Commission report because section 3.07 goes on to talk about oblique intention, where it is not the defendant's purpose to cause a certain result, but where it is a near irreversible by-product or almost certain consequence of his activity.

In 1980, the Criminal Law Revision Committee of England and Wales felt it would be too narrow to confine intent to cases where the accused desires a certain result, preferring to include cases where the accused knows a certain result will follow. This is even more clearly put in section 3.16 of the report where, regarding oblique intention, that is, the result is a by-product of the person's activity, it states: "If [the accused] acts in order to achieve a particular purpose"– that would be to save the life of the mother in a situation where there could be a problem –"knowing it cannot be done without causing another result, he must be held to intend to cause that other result". A doctor will know the life of the unborn child will have to be sacrificed if the child is not viable.

There is considerably more discussion on oblique intent which causes the death of a person. The result of the termination of a pregnancy before the child is viable will be well known to any doctor carrying out a termination. The child will not live. However, if the mother's life is in danger, she will not live either. The proposals for reform suggest intention should be given statutory definition. I hope the Minister supports this and tries to introduce such a definition as soon as possible. We should introduce legislation regarding abortion at once to protect the expectant mother and her doctor in life-threatening situations. In its ethical guidelines the Medical Council states that it is unethical to withhold treatment to a pregnant woman whose life is in danger, even if the life of the foetus is lost because of this treatment. We should make it abundantly clear that this is also legal.

I welcome the Bill, the Minister and this long overdue amendment to the Constitution. There is a marketing technique by which a prospective customer is encouraged into a sequence of yes answers and when the time comes for him to face the really big question he is so used to agreeing that he automatically answers yes, almost out of habit. The thought of this technique crossed my mind – I am sure the Minister will deny it – when I noticed the order in which the four referendums are to be put to the people. The big question – the Nice Treaty – is left until last. Perhaps when voters have answered yes to the first three questions they will automatically answer yes to the fourth. A cynic might be tempted to see the first three questions merely as warm-ups, designed to get the voter into the habit of answering yes. I look forward to being reassured that nothing was further from the Government's mind than that.

Whatever the motivation of putting the question of the death penalty first on the list, there is no doubt that people will say yes to this amendment. Happily, there is no controversy about the issue. Only one Deputy argued for retention of the death penalty in the Dáil. Almost everyone is agreed that State executions are barbaric.

Once in Riyadh in Saudi Arabia, my colleague and I parked his car in a prohibited place. The car was towed away and we were obliged to pay a fine. We were horrified to discover that we had parked in the place where public beheadings take place, I believe, almost weekly. However, there is little difference in the ways in which executions take place, whether by lethal injection or by public beheading. It is right and proper that our Constitution should take the widely held view that we no longer want this practice in our legislation.

I commend the Government on having taken the high road on this issue. I refer to the proposal to amend Article 28.3.3º, to exclude the prohibition of the death penalty from the list of measures that may be suspended in times of war or armed rebellion. The effect of this provision is not only to prohibit the Oireachtas from reinstating the death penalty by means of normal legislation but also to prohibit it from reinstating it as part of emergency legislation. This amendment to Article 28.3.3º immensely strengthens the proposed constitutional ban on the death penalty. It singles out this human right above all others and makes it sacrosanct in all circumstances. There could be no stronger way of stating the belief that the death penalty is absolutely wrong in principle and there are no circumstances in which it can be justified.

The strength of this statement is made clear if we read Article 28.3.3º. It allows all the rights and freedoms enshrined in the Constitution to be overwritten by law in times of war or armed rebellion. Reading the draconian provisions of this article is enough to send a shiver down one's spine because it makes clear how fragile those rights and freedoms are. There is nothing in the Constitution which cannot be legally overwritten in a time of declared emergency, except this new provision banning the reinstatement of the death penalty. I commend the Government for taking this route because few of us would have thought of the question in this way. This measure makes it clear that forbidding the death penalty is so special that even in the direst emergency we are not prepared to allow it.

One unexpected consequence of taking this route may be an immediate and highly practical impact on our extradition arrangements with other countries. Such a strong statement against the death penalty in our Constitution immediately calls into question the legality of any attempt to extradite a person from Ireland to a jurisdiction where the person concerned runs the risk of being executed. Any lawyer defending a person whose extradition was sought for a capital offence within such a jurisdiction would not be earning his fee if he did not question the constitutionality of such an extradition. Equally, when the Supreme Court comes to consider this question it will give considerable weight to the way the ban on the death penalty has been singled out for preservation above and apart from all other human rights and freedoms. I am not a betting man but even I would be tempted to take a flutter on the likely outcome of such a case. Far from being an academic exercise with no practical consequences, the passing of this amendment could have a very real impact.

Last month an American fugitive from a capital charge was apprehended in France, having spent most of the previous year hiding in Ireland. Ireland is very easy to get to from the United States, the country with the highest profile in applying the death penalty. During the discussion on this Bill in the Dáil, it was said that the passing of this amendment will strengthen the hand of the Taoiseach in seeking to persuade President Bush of the error of his ways on the death penalty. I cannot imagine President Bush losing too much sleep over a slap on the wrist from the Taoiseach but I can imagine Americans being concerned at Ireland becoming a safe haven for fugitives from American justice. I hope the Minister will comment on this aspect of the Bill. In these circumstances I can see Ireland featuring in the front line of the growing difference between Europe and the United States on the subject of capital punishment. We face some interesting times ahead. The Government is clearly happy to envisage such an outcome. I am sure the matter has been thought through. The Government could have included a saver for extradition arrangements into this amendment but it was obviously felt that it would be hypocritical to do so.

I agree with that decision but while agreeing with the Government's approach it should be explained to the people before they vote on the issue. We have had troubles in the past arising from people voting on constitutional amendments without being fully aware of the consequences of what they were voting for. Let us make sure that does not happen in this case. Dangers face us if extradition from this country to the United States for a capital crime becomes almost impossible. We could become a safe haven for fugitives from the United States who will see Ireland as a place from which they cannot be extradited. I would welcome the Minister's comments on this question.

It is fitting that we begin the new millennium with an absolute prohibition on the death penalty. Members on all sides of the House see death as a barbaric punishment. There is no evidence of its effectiveness as a deterrent and we do not wish to have this penalty on the Statute Book. I am pleased that the Minister has prohibited the death penalty in any circumstances. In the past it might have been argued that to do so would be a step too far.

It is interesting that it was Charles Haughey who in 1964 began quite an illustrious career in politics as Minister for Justice and initiated the process of abolishing the death penalty. Deputy Ray Burke went a step further in 1990. I do not know if there is any moral to be derived from this, but is the present Minister for Justice, Equality and Law Reform not worried about being the one to abolish it entirely, considering what befell his illustrious predecessors?

I welcome the legislation. I remember being very much involved in a campaign to abolish the death penalty at the end of the 1970s and the beginning of the 1980s. It was launched by a combination of Amnesty International, the Irish Council for Civil Liberties and the Prisoners' Rights Organisation and it eventually culminated in Gemma Hussey's introduction of a Bill in this House to abolish the death penalty during the short period of government in 1981. Thereafter, unfortunately, there was no great public acceptance or approval for it and there was too much opposition from gardaí and the prison officers at the time for anything to be done throughout the 1980s. It is amazing how much things have changed in a few years. Those of us who were around at that time, particularly the Independent Senators who were very active on the issue, will remember the degree of opposition and lobbying that took place throughout the country against the abolition of the death penalty and how the floodgates opened to those who were the public servants of the people in combating crime.

At this time, the death penalty was abolished in Britain and Northern Ireland, where there was a war taking place. As Senator Lydon said, had the death penalty been in the Statute Book, the cases of the Guildford four and Birmingham six could have ended very tragically.

In 1990, when the death penalty was being abolished, apart from what is left of it in the Constitution, I tabled an amendment concerning the tools of the hangman's trade that still existed in Mountjoy for the attention of the then Minister for Justice, Mr. Burke. It suggested that this paraphernalia be taken and deposited in the National Museum. The Minister asked me to withdraw the amendment on the grounds that he himself would look into it with a view to ensuring that this would happen and that it was not an item warranting an amendment of legislation. I am sure it was not. However, 11 years later, nothing has been done about it and the paraphernalia is still in a refurbished unit where the hangman carried out his trade. Some of it is missing. Will the Minister tell us what has happened to it and why it was not placed in a repository or left to the National Museum at the time, which is probably its proper place?

Many have referred to the anomaly that exists regarding the attitude of the United States to the death penalty and the number of executions that have taken place in Texas, the home state of the current President, who is notorious for his support of it. The President of the United States is projected and promoted as the leader of the free world, the President of a country to which we are supposed to look as an example in terms of its defence of the free world and international human and civil rights. However, the barbaric death penalty is carried out to an increasing extent in the United States. I hope that the Minister, or the Minister for Foreign Affairs, Deputy Cowen, uses the passage of this constitutional amendment – I am sure it will be successful – to signal strongly to the United States what Ireland's position is on the matter, in the context of membership of the Security Council of the United Nations. A meeting should be arranged between the Minister and the American ambassador immediately after this referendum has taken place to tell him what the Irish people have voted on. This can be taken back to his President to inform him of our position.

We have a great relationship with the United States and nobody wants to damage it. However, we believe in the fundamental principle that it is wrong to take human life. It has been argued that the taking of human life by a state is intended to show its citizens that it is wrong for them to take human life. This is a meaningless, elliptical argument. The European Union has been quick to point out that states that wish to join must have certain standards. One of the standards required is that the death penalty does not comprise part of a state's penal regime. That is a major issue where the possibility of Turkey's joining the European Union is concerned. The European Union was to the forefront in protesting against the execution of the Kurdish leader who was arrested last year. It recognises this as a barbaric penalty and believes it should not be exercised by any country that seeks to join.

Recently, we received an invitation from the Chinese city of Beijing to twin with Dublin. Our Lord Mayor has visited China in this regard. The view that has been expressed by the councillors of Dublin is that under no circumstances would they want to twin with a city in a country wherein human rights are abused to the extent that they are in China. That is a major issue in considering the invitation to twin the two cities. Yet we seem to proceed nonchalantly without anybody being too concerned that the country with which we have the greatest trading relations outside the European Union executes its citizens on a regular basis. I would like to see Ireland at the forefront of a campaign protesting against its position on the death penalty, which it believes to be inappropriate.

This is also in line with our national requirements pertaining to the International Convention on Human Rights and the United Nations Covenant on Civil and Political Rights. It is in this context that I will make the rest of my remarks.

Only yesterday, Amnesty International revealed a condemnatory audit of abuses of human rights here in Ireland and nearly all the areas referred to were under the Minister's auspices. We cannot, on the one hand, abolish the death penalty and place around our shoulders the mantle of protector of human rights, while on the other hand not ensure that human and civil rights are not protected in other areas in this country. The list of issues that were condemned by Amnesty International is huge and has been around for a long time.

I would refer the Minister to two non-Government motions that have been on the Order Paper for the last eight or nine months. No. 5 states:

That Seanad Éireann calls on the Minister for Justice, Equality and Law Reform to establish a full-time, independent inspector of prisons; and to review the composition and operation of the prison visiting committees.

The legislation that governs visiting committees is so outdated as to be unreal, as is the legislation governing prison rules. These areas should simply be addressed domestically and it does not require a constitutional amendment to do so.

Non-Government motion No. 6 states:

That Seanad Éireann calls on the Government to implement the recommendations of the Council of Europe Committee for the Prevention of Torture which visited Ireland in 1993 and 1998; and further calls on the Government to ratify the United Nations Convention Against Torture.

Substantial complaints were made by the Council of Europe Committee for the Prevention of Torture, in 1993 and 1998, about the way in which we detain our citizens. Amnesty International has now come out with a report but very little has changed. They are looking for an independent police complaints body. Imagine having the Garda Síochána looking into complaints against themselves. Amnesty also wants effective safeguards to prevent ill-treatment of prisoners in custody. We do not seem to be able to get a camera or tape recorder into any of our detention cells.

Above all, the Offences Against the State Act, which has remained on the Statute Book since the beginning of the Second World War in 1939, remains in operation, preventing a fair trial for one and all. The use of this law is quite extensive.

The Amnesty International report referred to the need to have a lawyer present during interrogation in Garda custody, as well as provision for an independent inspectorate of prisons, to which I have already referred. Such an inspectorate does not exist. Nothing is happening with regard to the restructuring of prison visiting committees. We know about the debacle that took place in establishing the Irish Human Rights Commission; there were problems in getting it off the ground and it took so long to do it.

Perhaps the most sensitive issue of all concerns the legal provision for asylum seekers. I saw in today's newspapers that the Minister has rejected the criticism contained in the Amnesty International report. However, there is constant criticism that we fall seriously short of the inter national law on human rights in relation to the protection of asylum seekers. On the international front, Amnesty criticised us when we had the presidency of the Council of Ministers for our failure to act when the Russian Federation was committing atrocities in Chechnya. Our track record is not great.

While I am delighted to see that we are taking such comprehensive measures in this legislation to deal with capital punishment, we are falling short in other areas that can easily be addressed by domestic legislation. I am sure the Minister would have the full support of the House if he came forward with the necessary legislation to rectify those concerns that are now being reiterated by such august organisations as Amnesty International and the Council of Europe Committee for the Prevention of Torture. They have not found the situation here to be satisfactory.

We welcome the legislation which, as the Minister has heard, is supported by all sides of the House. Senator Quinn expressed some reservations about Ireland becoming a haven for criminals or other people who may face the death penalty in other countries, but that should not be our greatest worry if we regard the death penalty as being a barbaric punishment and one that is not suitable under any circumstances. If people are fleeing persecution and the threat of execution in their own countries by regimes that leave much to be desired in democratic terms, that measure should certainly be welcomed.

We have struck a strong note for human rights. I hope this will be the beginning of the floodgates opening over the next 12 months the Minister may have in Government, if that is the length of time left, because so much could be done. The Minister would certainly be pushing an open door.

I welcome the Bill. On the understanding that this legislation will get a safe passage through the House, I hope there will be a large turnout and a positive vote in the referendum due to be held later this year.

As my party's spokesman on justice, it is important for me to register my support for the Bill and my absolute condemnation of the death penalty. The last person hanged in Ireland was Michael Manning from Limerick who, if he were still alive, would be just 71 years of age. We should reflect on that fact because 71 is not very old. It puts into proportion the provisions relating to the death penalty that were on the Statute Book at that time. In my view the death penalty was no answer to whatever crime Mr. Manning may have committed.

I am a member of the All-Party Oireachtas Committee on the Constitution which debated this issue. The committee fully endorsed and wholeheartedly agreed with the holding of this referendum on the abolition of the death penalty. I congratulate the Law Reform Commission on its great work in making a determined bid to ensure that the death penalty would be abolished. In effect, this is a tidying up operation because under the 1964 and 1990 Acts, the death penalty no longer exists. However, because it was in the Constitution there was always a possibility that a future Government might re-introduce the death penalty for whatever reason.

Some speakers made an interesting point with regard to the Guildford Four, Birmingham Six and other cases in England. It is quite likely that had the death penalty been available there, it might have been used in those circumstances because of the public outcry in Britain against the IRA and its supporters.

I did not wish to convey the impression that by staying silent earlier I was not in support of the Bill. For other reasons, I requested my colleague, Senator Cregan, to stand in for me as spokesman on justice. He ably set out his reasoning. We have had some very interesting contributions from many Senators, and Senator Lydon in particular, who spoke with great passion and emotion about the historical, philosophical and other reasons the death penalty has no place in modern society. It is easy for us to condemn other countries which still have the death penalty, particularly the US. The perception among Americans with whom I come in contact from time to time is that if the death penalty was not in use in the US crime rates would soar. I do not support that view and I condemn it.

I hope that the EU, in allowing Turkey to accede to the Union down the road, will insist on greater law reform there, a greater acknowledgement of human rights vis-à-vis the protocols and laws for other European countries and the abolition of the death penalty.

I commend the Bill to the House and stress the importance of a large turn-out for the referendum when it is held later in the year.

I express my appreciation to all Senators for their welcome for the Bill and their constructive comments. The removal of the references in the Constitution to the death penalty reflects the reality that has pertained in Irish law since 1990 and in practice since 1954. Currently, a person convicted of capital murder must obtain a mandatory sentence of 40 years or 20 years for attempted capital murder and the death penalty may not be imposed. However, it is possible for a future Government to reintroduce the death penalty under the terms of our Constitution.

The inclusion of a specific provision prohibiting reintroduction of the death penalty and the amendment to the override provisions of Article 28.3.3º will give constitutional protection to our international obligations under Protocol 6 to the European Convention on Human Rights and the Second Optional Protocol to the UN International Covenant on Civil and Political Rights.

The possibility of entering a reservation to allow for use of the death penalty in time of war was open to states only at the time of ratification of the UN protocol. When ratifying that agreement in 1993 the Government declined to avail of that possibility and, therefore, in honouring our international obligations we are precluded from using the death penalty. However, aside from those important international obligations it is the Government's fundamental belief that the death penalty is intrinsically wrong and there should be no exception to that principle, even in time of war. The Bill is a public and positive manifestation by the Government of that belief.

Senators referred to the use of the death penalty in other jurisdictions. The Government believes the death penalty is intrinsically wrong, irrespective of where it is carried out, and it will continue to support its abolition in all other jurisdictions at appropriate international fora. I have noted the strong views of Members on the use of the death penalty in other jurisdictions and I will bring them to the attention of the Minister for Foreign Affairs.

Senator Quinn referred to the implications which the prohibition on the death penalty enshrined in the Constitution might have for extradition of a person to the US. It is already the position in this State and in most, if not all, EU member states that a person cannot be extradited to a jurisdiction where the death penalty is used without a guarantee that the person will not be executed. Such a scenario arose during my time as Minister in the case of Beth Ann Carpenter. That occurred approximately two years ago and she was only extradited to the US after I had received an absolute guarantee from the American authorities that she would not be executed if returned there. She was subsequently returned and was not executed. I do not know how the case progressed following her departure from this jurisdiction. However, I have no wish to change this position. It would be unjustifiable to send a person abroad to suffer a fate which we in this jurisdiction consider to be fundamentally unacceptable.

Senator Norris, during his familiarly colourful contribution, referred to the execution of Anne Boleyn, the mother of Queen Elizabeth I. There is no more celebrated case of abuse of the death penalty than that by the queen's father, Henry VIII, who had six wives, two of whom were executed.

The Minister has come a long way.

Queen Elizabeth I on one occasion said England may have had greater monarchs and would no doubt have a greater monarch than herself but that England never had and never would have a monarch who loved her people as well. Unfortunately, the queen was no stranger to utilising the death penalty herself.

However, we have come a considerable way over the past 400 years and I am satisfied the constitutional amendment, when passed by the people, will signify to the entire world that we, as a civilisation, on this island do not subscribe to the death penalty. We will help, in doing so, the cause for the abolition of the death penalty in other jurisdictions. The death penalty is, unfortunately, commonplace in many jurisdictions but, as Senators outlined, it has never led to reduced crime rates. If anything, it has led to resentment and rebellion where it has been practised.

I am convinced the people will follow the lead of the Members of both Houses of the Oireachtas and support the referendum. They will strike a serious blow for humanity in doing so.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.
Top
Share