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Seanad Éireann debate -
Tuesday, 9 Dec 2003

Vol. 174 No. 22

Independent Monitoring Commission Bill 2003: Committee and Remaining Stages.

Sections 1 to 3, inclusive, agreed to.

I move amendment No. 1:

In page 4, line 11, after "Minister" to insert ", subject to the consent of the Minister for Finance".

We tabled a small number of amendments on this Stage not to seek in any way a radical altering of the Bill, but to be helpful in terms of its drafting. The legislation is useful in that it does not have the collection of verbiage contained in much legislation going through this House. It is clear, to the point and useful.

In much legislation of this nature, where there is reference to the spending of moneys, it is usual that the sanction of the Minister for Finance would also be provided for where there is a likelihood that substantial moneys would be expended. The object of this amendment is that the Minister for Justice, Equality and Law Reform would be the person making such a decision with the consent of the Minister for Finance. If one surveys similar legislation, one will find this is a typical provision. What is involved depends very much on the amount of money that will be spent in terms of this commission. I understand it is to be funded on a 50-50 basis, but I would be interested to hear the Minister's response to this amendment. From our research, it is typical that the line Minister and the Minister for Finance would make decisions about expenditure of this nature.

There has been a convention on this type of body which is being set up as a direct result of the Northern Ireland peace process and the Good Friday Agreement. Especially given the international dimension, the Minister for Finance is more disposed to take on trust the necessity for the expenditures involved and, in practice, does not intervene in institutions of this type. Therefore, I query the need for this amendment. I am not sure it would be a good idea to bring in more conventional Government accounting mechanisms to a body of this type.

Senator Mansergh is correct and I must reflect that Senator Brian Hayes's remarks are probably causing various people in the Department of Finance to fall off their chairs in amazement at the Opposition demanding that the Department of Finance's interests should be protected.

It should be noted that section 4 deals with a number of elements concerning moneys, premises, facilities and services, including staff, as may be necessary for the proper functioning of the commission. It gives the Minister for Justice, Equality and Law Reform broad licence to be supportive of the affairs of the commission and to give it staff, facilities and the like, as is necessary. However, all is not black from the point of view of the Department of Finance because section 11 states that the expenses incurred by the Minister in the administration of this Act, which would include all those elements, shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas. My dash for freedom from the Minister for Finance has been short lived given that by the end of the Bill I am back on the leash.

I assure the Minister that the amendment was not provoked by a call to my office from the Minister for Finance at any given time.

The commission will be a subhead in the Minister's Estimate of expenditure every year. Can he give a view on the total resources that will be given to the commission? I understand it will be established in Northern Ireland, presumably around Belfast. What level of staff resources will be provided to it?

The position is that the total annual budget envisaged for it is of the order of €3 million and it will be shared on a 50-50 basis between the two Governments. Therefore, the Irish Government will contribute €1.5 million and the UK Government will contribute the sterling equivalent of €1.5 million.

Amendment, by leave, withdrawn.
Section 4 agreed to.

I move amendment No. 2:

In page 4, after line 42, to insert the following new subsection:

"(5) Any immunity or privilege conferred by this Act or enjoyed under the Agreement shall only apply to acts or omissions–

(a) in good faith, and

(b) in the course of duty.”.

This section sets out in a clear and precise way the immunities and privileges that will be granted to the commission, which are quite strong. A great degree of immunity and privilege in respect of this section has been conferred on the commission. The question must be asked as to whether such immunity or privilege is absolute in all cases. We believe immunity and privilege should be lost where a person acts in bad faith or where he or she does not act in the course of duty. We have considerable evidence that this precedent is typical in common law. The inclusion of the proposed subsection (5) would further clarify the position whereby the question of an absolute immunity or privilege in all cases would not hold sway in this scenario. It is clear from the section that a high degree of immunity already exists.

This is an international body. The question of whether it could be susceptible to suit in the Irish courts is a serious one. If people began to take judicial review type remedies of mandamus ordering it to do things, certiorari quashing its reports or directing it by a court based injunction to exercise its functions in one way or another, it would cease to have the status of an international treaty organisation and rapidly become one which was effectively a domestic institution subject to the domestic law on either side of the Border.

I should be careful about what I say but sometimes, particularly in Northern Ireland and I know southern lawyers are inventive, I am mindful that I have seen extraordinary judicial reviews unleashed in the northern context from time to time. I do not want a situation to develop where the members of the commission would find themselves fighting about their reports, procedures or conclusions in the courts either north or south of the Border. That is why the immunity is as far reaching.

I fully accept that Senator Brian Hayes's research suggests that in many domestic common law institutions absolute privilege of this kind is not provided because it is required that people should act in good faith, without malice or other circumscribing pre-conditions for the immunity to persist. However, in this case it seems we should not lose sight of the fact that the decommissioning commission which currently exists and the Commission for the Location of Victims' Remains have absolute immunity, which has also been conferred on this body. It might be very significantly misinterpreted if we were to give a lesser degree of protection from domestic suit to this commission than we have to those other commissions. Bearing in mind what I said about its international status, the result would be major political embarrassment if a case was to be launched by, say, loyalists against it in Northern Ireland, by republicans here in the South or by either combination in the courts requiring it to come to one conclusion rather than another or attempting to invalidate in terms of domestic law its conclusions or activities. On balance it is better to stick with the precedents established by statute for the Commission on Decommissioning and the Commission for the Location of Victims' Remains, and to provide the same degree of immunity for this commission as applies to these.

The phrase "in the course of duty" is covered in the legislation in section 5(2)(a) by the phrase “when performing their official functions”. In effect, this says the same thing. Putting in the phrase “in good faith” raises or presumes situations arising in which people might not act in good faith. Some of the people involved come from outside this jurisdiction and are serving at the request of the Irish and British Governments, and the phrase in the amendment suggests that it is very possible they might not be acting in good faith in the course of their duties.

That is very possible.

It is not the type of thing one can put into legislation for such a body and would be contrary to all usual diplomatic usage. If a controversial situation were to arise, the remedies would be entirely political rather than legal.

Arising from Dr. Mansergh's remarks, if one inserts the "in good faith" stipulation, one is saying to a judge of an Irish court on either side of the Border, in a Northern Ireland High Court or in a High Court in the South, that whether the commission is acting in good faith is a justiciable issue before that court. If one concedes it is a justiciable issue, one then gives the right of audience and a sort of curial opportunity to people to make a case that people are acting in bad faith, and to unleash legal attacks on them in the courts.

They would have to provide evidence to substantiate such claims in court.

They would, but they could start proceedings with their lawyers querying the meaning of the phrase "in good faith" and suggesting that it must be based on some rational appreciation of the circumstances and be reasonable in some way. If they then said they had a reasonableness test, the case could be dragged out. In very many cases of judicial review which I have seen, efforts are made to bring matters which are, to use Senator Mansergh's term, for resolution on the political plane, onto a legal plane. If anyone has any illusions about this, a series of actions was commenced with a view to toppling the institutions in Northern Ireland by people who claimed that the British Government was acting in a way that did not conform with their desires. It is not at all fanciful to envisage that litigation would be thrown at the Independent Monitoring Commission to either embarrass it or prevent it from acting or reporting, or requiring it to report in a particular way or to invalidate its reports in some sense. In those circumstances Senator Mansergh is correct. This is an international body which operates on a diplomatic and political level and not within the purview of domestic litigation. If it falls into that latter category, all its activities will, going by past experience, be dogged by litigation, and this will embarrass rather than enhance the peace process.

There is a caveat there which makes this subject to section 6, which clearly sets out areas where, in the performance of its functions, the commission shall not do anything that could be prejudicial to a number of areas. There are already protections there to obviate the need for Senator Hayes's amendment.

I thank the Minister for Justice, Deputy McDowell, and the other Senators for the debate. No one is suggesting that the people to be appointed are not entirely independent or that they will be under the ownership of a government or a Department. It is important however that there is a degree of consistency in respect of any body of law we put in place in this House or the Lower House when it comes to privileges. I am minded to withdraw the amendment on the basis that the Minister has informed me that the procedure outlined in section 5 is similar to that outlined for the Commission on Decommissioning and the Commission for the Location of Victims' Remains. It is logical that there should be some consistency on the issues in all three commissions, but we should never sacrifice certainty for brevity. While the legislation is brief and to the point, usefully so in many ways, it is important that these principles are set out in legislation. Regarding the issue of evidence being sought in this jurisdiction as against another jurisdiction, we all have to comply with the basic rules of law. It would be useful for all bodies to do so. In view of what the Minister has said in terms of the other two bodies, I withdraw the amendment.

Amendment, by leave, withdrawn.
Section 5 agreed to.

I move amendment No. 3:

In page 5, between lines 2 and 3, to insert the following paragraph:

"(a) compromise its political independence,”.

We are proposing the insertion of a new clause whereby the independence of the commission could not be compromised by its political independence. In addition to the actions already listed in the section, it is vital that such a body does not compromise itself. It must remain absolutely independent of political activity as well as of everything else. Amending the legislation in this way will add greater definition and meaning to the existing section on the commission's duties. No one is suggesting that the commission will be anything other than politically independent, but this amendment will strengthen its hand when it goes about its business.

That might be so, but section 6 is designed to put into the Act what is set out in Article 13(2) and I do not want to be seen by Westminster to be redrawing the agreement or adding new portions to it at this stage, having so recently signed it in the company of the British ambassador. It might be regarded as not quite the done thing to agree to an amendment which in effect would amend Article 13(2). I have slightly better news for Senator Hayes regarding the next amendment and I ask him to withdraw this one.

I accept the Minister's explanations. This is an amendment with which I have a certain degree of sympathy, because there were situations in the past where the political independence of assessments of situations which might have been in breach of the Mitchell principles, for example, have been questioned or challenged. I accept the Minister's reasoning but in establishing bodies of this kind it is not a bad provision to bear at the back of one's mind. If such bodies are challenged on anything, it is very often their political independence.

Article 2 of the Agreement and our own statute already provide that, "The Commission shall be independent in the performance of its functions". There is a slight difference of nuance here. One could say someone shall be independent in the performance of his function and also say that his independence shall not be compromised. I see that point. At this stage, whatever sympathy I may have, Senator Brian Hayes was not sitting on my shoulder when the ink was drying on the Agreement and, therefore, I cannot accept the amendment.

In view of the fact that the Minister would find it difficult to go back at this late stage to Her Majesty Queen Elizabeth's representative in this State, I will not make matters unduly difficult for him. On that basis, and because he has promised me something as we go through Committee Stage, I will proceed to the next amendment.

Amendment, by leave, withdrawn.
Section 6 agreed to.

I move amendment No. 4:

In page 5, subsection (1), line 10, after "by him" to insert "for that purpose".

This section deals with the flow of information from the Garda Síochána to the commission, where it requests it. There are grounds for the amendment proposed by the Opposition. As currently worded the Bill could empower any member of the Garda Síochána to give information to the commission, and that would not be a good thing. The amendment proposes that subsection 7(1) be amended to allow that the Commissioner of the Garda Síochána or a member of the Garda designated by the Commissioner "for that purpose may disclose to the Commission any information in the possession of the Garda Síochána which, in the opinion of the Commission, is necessary for performing its functions".

The insertion of the words "for that purpose" designates a member of the force to give information. If information is to be handed over by the gardaí, it is essential that only those members specifically designated for that purpose are empowered to do so. The section as drafted seems to indicate that any member of the Garda who has been designated for any purpose could hand over that information. This matter needs to be clarified and I ask the Minister to respond positively to the amendment, which gives greater certainty as to the person who gives the information than is currently the case.

Unless another Member of the House has a contrary point of view of which he or she wants to persuade me, I am disposed to agree to the amendment proposed by Senator Hayes, for the reasons he has stated.

I thank the Minister for his generosity of thought and action at 5.05 p.m.

Amendment agreed to.
Question proposed: "That section 7 stand part of the Bill."

On Second Stage I raised the question of the Police Ombudsman and I will not do so again. Is this the first time statutory provision has been made for the Garda Síochána to give information to a non-police force on the island of Ireland?

It is unlikely. There are restrictions on much of the information which can go out from the Garda Síochána. It is more likely than not that in recent legislation there have been express authorisations for the disclosure of information in certain circumstances, to the Criminal Assets Bureau, for example.

To bodies?

Yes, I think that is probable.

Senator Mansergh's earlier comment reminded me that it was possible that British forces might resort to subterfuge. If history has taught us anything it is that we should be vigilant in this area. While I support the advancement of better relations between the islands and between people North and South of the Border, I do not propose that we enter a state of political amnesia in this regard.

What action should the Commissioner of the Garda Síochána take if he becomes aware of any such activities of a serious nature? Article 3 of the Agreement states that:

The objective of the Commission is to carry out the functions as described in Articles 4, 5, 6 and 7 of this Agreement with a view to promoting the transition to a peaceful society and stable and inclusive devolved Government in Northern Ireland.

I thought my question was covered by that Article but Articles 4 to 7, inclusive seem to be predicated on paramilitary activity rather than anything else. However, on mature reflection, subsection 7(2) states:

Nothing in any other enactment prohibits disclosure of relevant factual information either to or by the Commission.

Should it happen – and I hope we will never encounter such a scenario – that British forces were involved in illegal activity, would it be open to the Garda to use this monitoring commission to bring that activity to its attention? That would be a real test of the independence of the commission, bearing in mind that we would have a representative on the commission and there would also be an American representative as well as someone from Northern Ireland who might have an interest in this also. Could the commission be used as a forum to deal with such a situation if it were to arise?

Senator Walsh already made it clear that where a first reading of section 7 might give the impression to the casual reader that the disclosure of information was mandatory, it is not. It is discretionary. Therefore, a member of the Garda Síochána would not be in a position to give information which he or she believed was prejudicial to the interests of the State or threatened security, or if he or she had other good grounds for withholding that information. However, as the commission is a body based on confidence and good faith it is hoped that in the vast majority of cases it will seek information to which it is entitled and will treat it accordingly.

There is a question here of what is sauce for the goose being sauce for the gander. We cannot ask that our Act contain provisions for the Garda Síochána which would not be mirrored in the PSNI's activities regarding loyalist paramilitaries, for example. This cuts both ways.

It must also be emphasised that the Garda Síochána, unlike police forces in neighbouring jurisdictions, is also a security service. The Garda Síochána does for Ireland what MI5 and the police forces do for Britain. We must recall that the Garda Síochána is not a regional constabulary but a national security service and, therefore, must be protected by the discretion contained in section 7.

May I clarify an earlier remark which has been referred to? On a previous amendment we were discussing the predication of possible lack of good faith to a new international body, one which includes a former Secretary General of the Department of Justice, Equality and Law Reform and the recent former Chairman of the Northern Ireland Assembly. I said nothing which would imply that there had not been very serious incidents involving bad faith on the part of different security agencies, matters which are the subject of investigation by Judge Peter Cory and Mr. Justice Barron, among other matters.

There have been some extremely serious incidents upon which I have very strong views, but I do not wish to have attributed to me any notion that I consider people in the past belonging to those bodies incapable of acting other than in good faith. My remarks were solely related to this body.

There was a naiveté in cases over the years, such as the Garda Síochána putting its faith in giving information to the RUC. I recommend caution about being too trusting. It makes us out to be naive and a little gullible if we think that there are not other forces there. I draw the Minister's attention to the point that there are people in the system who want to undermine the peace process. There are people in security in Northern Ireland who have a vested interest in maintaining the status quo and who do not want to see progress. The PSNI is evolving. There were times in the past when we put too much faith in the goodwill of the people on the other side. I am not generalising in that it applies to everybody, but there have been instances where we were naive. We gave Articles 2 and 3 away too quickly. We are not quick to demand a quid pro quo for Articles 2 and 3. My point is we seem to be very generous.

I must express a strong objection to that comment by the Senator. Either we support the Good Friday Agreement or we do not. We did not give the Articles away, we re-worded them in a way that reflects modern republicanism and it was supported in the end by every substantial party, north and south of the Border. The Government of Ireland Act 1920 which was the foundation of Northern Ireland as it existed over 60 years was repealed. We also had North-South bodies instituted. I do not understand how anybody who supports the Good Friday Agreement would say that we gave away Articles 2 and 3 too cheaply.

May I reply?

Acting Chairman

No, Senator, you have already made a contribution.

I wish to make a point on the issue of information. I do not wish to embroil myself in the row that is taking place on the other side of the House. I raised the issue of information on Second Stage and the Minister kindly replied. As I understand it, the Police Ombudsman for Northern Ireland cannot investigate alleged incidents that occur to PSNI officers in Northern Ireland where information that is sought south of the Border cannot be given by the Garda authorities to the police ombudsman. That issue must be addressed. We all support the new dispensation on policing. We support the police ombudsman's work in investigating complaints made against officers. It is ludicrous that we cannot give information to the ombudsman in Northern Ireland where that information is sought by the Garda Síochána. I welcome the Minister's statement in his concluding remarks on Second Stage that the matter will be resolved in the context of new legislation concerning the Garda Síochána, but it also works the other way. We have a responsibility to ensure these new institutions work. We must change our legislative framework to ensure that information works on a two way basis.

I echo what Senator Mansergh said about Articles 2 and 3. It was not a question of this State giving something away—

We expected something back.

—or the people of this State giving something away. The people of this State made a positive choice to re-articulate their stance on the national question in a manner which would underpin and strengthen the emergence and persistence of democratic values in Northern Ireland. One must see it in context. One of the implications of the pre-Good Friday Agreement situation was that as a matter of international law, the United Kingdom was also being asked to say that in certain circumstances it would give effect to the wishes of a majority of the people in Northern Ireland as to the status of that part of this island. If one looks at these matters in the round, one will see a balance and there is no betrayal of the ideal of Irish unity or of the quest for Irish unity in the newly rephrased Articles 2 and 3. On the contrary, they best represent what most people on this island regard that ideal as being in substance.

There are people who are not in this House who have always rejected the 1937 Constitution and always decried it and said it was of no binding moral or legal significance. The alternative view was that the people of this part of the island were saying to the people of Northern Ireland that if there was to be Irish unity, it would be on our terms, under our Constitution. It was not a question of take it or leave it, they could simply lump it. That was the original implication of Articles 2 and 3. There was a reference to the right of the Government established under that Constitution to exercise jurisdiction over the whole of the territory. The only basis on which the southern Government can exercise jurisdiction is in accordance with the 1937 Constitution, so in effect it was a claim to impose the 1937 Constitution on the whole of the island, regardless of the wishes of a majority of people in Northern Ireland.

Those, including Senator Mansergh, who worked on the Good Friday Agreement put in place a delicate architecture which was balanced. It is not delicate in the sense of being a china ornament which can be easily smashed when the bulls enter the china shop. It is a robust statement of the realities between the peoples of these islands which is that the status of Northern Ireland is now to be decided by the people of Northern Ireland, by their solemn choice. Both peoples on these islands, if I may use that round phrase about them, have solemnly agreed as between themselves that such is the way forward. This is not a sterile, antiseptic proposition of international law but part of an organic agreement, the rest of which is set out in the Belfast Agreement. It is a carefully balanced international agreement which gives rise to partnership and equality in Northern Ireland and which is designed to give both communities in Northern Ireland the dignity of expressing their communal values and loyalties in circumstances where the other community cannot take that away from them. There are North-South balancing institutions and east-west balancing institutions which are all part of a complex political arrangement.

I do not agree with Senator White's view that we have given it away or that it has been given away for nothing. I do not believe we have given anything away. If it was wished to submit the claim to international arbitration in The Hague, there was nothing to stop us signing up to that provision and seeing how far that claim would have availed us. We must be realistic. I would prefer to take a positive view of these issues. The ending of the sterile claim to impose the 1937 Constitution without consent has been replaced by something much more challenging, viable, attractive and consistent with what in my view impels Irish republicans, among whom I count myself, to strive for over time. It is not a question of giving something of value away; it is a question of putting something much more valuable in its place. I do not know how I got distracted from discussing the amendment.

The amendment was accepted.

We were discussing the section.

The Minister is having the last word.

The terms of the section are correct and appropriate. We should not get into our heads the notion that the Good Friday Agreement has been betrayed, traduced, minimised or cast aside. It is the agenda for the future and will be implemented. It is the only show in town. Its strength lies in the fact that both Governments are totally committed to it. I am glad that, notwithstanding the election results in Northern Ireland, it was a clear demonstration by 70% of the voters there that they support pro-Agreement parties.

As a nation we acquiesced promptly to the change to Articles 2 and 3 but I do not think that was reciprocated by other parties to the Agreement. Mr. Trimble did not sell the Agreement to his community vigorously enough. I am entitled to my opinion. We were enthusiastic and optimistic that the pace would be much quicker. I am disappointed that the institutions are not in action. At the moment, the heart is out of the Agreement in many ways.

I would put a slightly more positive construction on Articles 2 and 3 in the context of the 1937 Constitution and subsequently, than the Minister. They were a denial of legitimacy to Northern Ireland in circumstances where the balancing elements in the 1921 settlement had all been removed and, in particular, the Boundary Commission which turned out, effectively, to be a complete fraud. It was reasonable for us to maintain that denial of legitimacy until such time as we had a comprehensive settlement, as in the Good Friday Agreement, which dealt with all the issues and concerns we had. I can understand Senator White and, indeed, many other people feeling disappointment at this particular point and perhaps asking themselves whether our participation was worthwhile, or if we sold our cards too cheaply. One has got to take the medium and long-term views. I remember making a mental note to myself in the shrubbery outside Stormont when I went for a walk to clear my head at 7 a.m. on Good Friday in 1998. I could see political trench warfare as far as the eye could see. Many obstacles have been worked through and there will probably be more. Nonetheless, it is an extremely worthwhile project and we should not allow ourselves to become depressed and despondent.

At lunch time I was talking to a member of the victorious party in the Northern Assembly elections and, needless to say, he does not take a gloomy view of current conditions. In fact, he sees positive advantages in the DUP having to take some responsibility and face some hard choices because the responsibility is now at their door. I urge Members of the House and the public who are tempted to become despondent in the present situation to keep their confidence. As the Minister said, there is no alternative project anywhere in sight that would remotely get agreement among the parties. It is a question of finding the way this will work. I have no doubt whatsoever that it will work; the only difficulty is that I cannot say in how many weeks or months, or whether it will take more than a year. I have absolute confidence, however, that it will happen.

The debate is interesting and has developed beyond the section. It probably goes to the heart of the Good Friday Agreement, from which many benefits have flowed. Equally, however, people have reservations, some of which I share. I never saw Britain as having a legal, moral or any other type of justification for being in Northern Ireland. Articles 2 and 3 provided a certain bulwark with regard to that and I fully accept what the Minister has said. In one of the briefing sessions we had in the lead up to the Good Friday Agreement I made the point that while both articles had been there for 60 years, they had not advanced the cause of Irish unity by one iota in the interim. Perhaps if they had been tested in the courts, as the Minister said, they may not have proved to be of any tremendous benefit. In recognising the constitutional position, we are legitimising what I, and I am sure most Irish people, would not have seen as being legitimate in the past. When one refers to the United Kingdom of Great Britain and Northern Ireland, our laws acknowledge, de facto, a legal status which I do not think they are entitled to have. I make that distinction because I think the British have no right to be in Northern Ireland. However, I fully subscribe to the notion that to achieve a united Ireland we must have a majority in Northern Ireland who will come that distance with us to unite the people, in the words of John Hume. That is what he aimed to do – it is a unification of the people rather than the land. I have had this discussion with Unionists, including some DUP people. I told them that the last thing I would like to see happening in a united Ireland was a large proportion of the majority community in the North not subscribing to it and perhaps emigrating. That would be a huge loss.

That is very generous of the Senator.

It is a case of trying to bring the people together where we can. I wanted to make that distinction because it is difficult for me, Senator White and others. That should be acknowledged.

It has to be.

The extent of that step on our part was far greater than anybody acknowledged in the past.

My earlier question about section 7(2) concerned MI5 and MI6, to which the Minister referred. To take a hypothetical situation, they might in future get up to nefarious activities in the State or in Northern Ireland where their activities would be totally contrary to the stability of the peace process, which is the declared objective of Article 3 of this exercise. In that scenario, assuming the commission is composed of people of the utmost integrity and absolutely independent of all political sides, is it a forum through which such activities could be investigated and adjudicated upon, in the same way as is done with the paramilitaries? I do not make a distinction between the terrorism and activities of loyalist or republican paramilitaries and activities by the apparatus of the state. If anything activities by the state are worse because the state has a specific obligation, over and above everybody else, to adhere to laws. That was the question in respect of section 6.

Now that we are all opening our hearts, I will make one or two brief comments. This is an interesting debate. I was always in favour of amending Articles 2 and 3 because I believed they were illegitimate. I have always accepted that there have been two states on the island of Ireland since the historic agreement in 1921. The reality is that whatever one thought of Articles 2 and 3 at the time, they were, for many people in Northern Ireland, an illegitimate claim on the sovereign territory of Northern Ireland which is part of the United Kingdom. I hope I am quoting him correctly when I say that Senator Walsh said the British have no right to be in Northern Ireland.

No moral, legal or—

The British in Northern Ireland are not from London, Halifax or wherever. They are British people in Northern Ireland and that has been the constant problem.

No. That is a mistake.

The 1.5 million people who live in Northern Ireland and who regard themselves as British are as British as the people who live in other parts of the United Kingdom.

They are not.

Irrespective of whether the Senator likes it, they believe they are.

They are definitely not.

That does not relate to the discussion.

Senator Hayes should visit the North more often and get to know the people better.

Senator, you should listen to what people in Northern Ireland tell you. Perhaps if you did not go down Garvaghy Road as often you might have an opportunity to listen to the 1.5 million people who regard themselves as being British.

Senator Hayes should address his remarks through the Chair.

Our objective in all of this, as the Minister and Senator Mansergh rightly said, is to arrive at a point where there is agreement going forward. We must come to terms with the many people who regard themselves as exclusively British or Irish, or British-Irish. That is why I always felt that Articles 2 and 3 were repugnant to the very notion of reconciliation that should logically exist on the island of Ireland. That was shown to be the case when the McGimpsey brothers brought their case and the constitutional imperative argument was put to them by the Supreme Court. Most people in the Republic did not realise there was a constitutional imperative about reuniting both parts of the island because they knew it was unenforceable, impossible and illegal. That was reflected ultimately in the settlement arrived at after Good Friday.

Can I come in?

No. I am bringing this discussion to a close.

Question put and agreed to.
Sections 8 and 9 agreed to.

I move amendment No. 5:

In page 5, line 40, after "Oireachtas", to insert "within 1 month of receipt".

We propose in this amendment to impose a timeframe as to when the Minister must bring a report from the commission before the Houses of the Oireachtas. As currently drafted, section 10 states that the Minister shall, after consultation with the Government, bring such a report to the Houses of the Oireachtas. Our amendment proposes that that report would be given to the Houses of the Oireachtas within one month of receipt by the Government.

It is important that where a report, which might be embarrassing either for political parties or Governments, comes into the possession of the Government, that information would be put on the public record and laid before both Houses of the Oireachtas within one month. We have seen examples in Northern Ireland in particular where reports have laid on desks unpublished to ensure that the political situation was not made more difficult. I appreciate that but we are attempting to put a timeframe around this. That would be a useful way of ensuring that the Houses of the Oireachtas get this information as soon as possible. We suggest the one month timeframe is not unduly restrictive.

If I could briefly indicate a negative attitude towards this amendment, there may be occasions when reports come to hand in regard to which the two Governments may decide, for one reason or another, that to publish them within a month would not be helpful to the whole process. Obviously I would hope that the great majority of reports would not be in that category but there may be occasions when it is necessary to act in that way and the advice available to me, which I believe is correct, is that it would be foolish to tie myself down to a situation of that kind in circumstances where there could be unforeseen adverse consequences. Whereas I fully agree with the Senator that it is generally preferable that timeframes be put on reports, many reports from many sources under statute appear to take a good deal of time before they come before the Houses of the Oireachtas. This is one in which there is a genuine, as opposed to a spurious, interest of the Executive in allowing some degree of flexibility because I can imagine circumstances in which it would be decided that a particular report was not to be published within time.

I accept what the Minister said. One month is unnecessarily constrictive but whether one is talking about domestic politics or the North, issues can arise that are highly embarrassing, unhelpful and so on, which if suppressed and sat on indefinitely has a festering effect on public confidence. A great deal of caution has to be exercised. I accept that the exact timing of reports is a matter for the Government to judge but it would be a bad principle that reports should be sat upon indefinitely. There are times when the public and Government, and we can see this with some of the tribunals established in the security area, must face up to very unpleasant and unpalatable facts. In the last analysis, a democracy cannot shirk from that.

One of the provisions in the Schedule which caught my eye was that the commission would be expected to publish reports as and when required and, in any event, at least every six months. I ask the Minister to ensure reports are published and brought before the Houses for us to discuss. I want to record also that mainland Britain does not accept Northern Ireland paper currency.

That is not relevant to the section. Is the amendment being pressed?

The section deals with Articles 4, 5 and 6 as laid down in the Agreement. Article 4 concerns paramilitary activity. Article 5 deals with the responsibility of the British Government concerning demilitarisation, and Article 6 concerns a complaint made by a political party within the Assembly if a Member of the Assembly has breached the pledge of office. Am I right in saying there is nothing of particular embarrassment to the Irish Government in any of this? Articles 4, 5 and 6 are external features. They are not to do with our failure or bad will and I do not understand how there would be a difficulty in ensuring a speedy publication of the report. I am mindful of what the Minister said concerning a potential negative but they are negatives of external forces, be they paramilitary parties, the British Government or individual Members of the Assembly. They have nothing to do with the Irish Government, as such.

I agree with the Senator. It would be in wholly exceptional circumstances that there would be any bona fide reason for not punctually publishing such a report.

I will take that verbal response as the way in which it will apply.

Is the amendment being pressed?

Amendment, by leave, withdrawn.
Section 10 agreed to.
Section 11 agreed to.

I move amendment No. 6:

In page 6, subsection (2), line 3, to delete "shall come" and substitute "comes".

This is the last amendment.

I accept the amendment.

I thank the Minister. Two out of six is not bad.

Amendment agreed to.
Section 12, as amended, agreed to.
Question proposed: "That the Schedule be the Schedule to the Bill."

The Schedule refers to the agreement between the British and Irish Governments. Article 6 states the commission may consider a claim by any party represented in the Assembly. As the Minister is aware, the configuration following the election result includes an independent member of the Assembly elected, I understand, on a hospital action campaign. Does Article 6 preclude this member of the Assembly from making a complaint to the commission on the basis that he is not a member of a party represented in the Assembly?

That is a good question. It is probable that the member in question could constitute himself as a technical group or something similar. A person can be a party to an agreement and I presume a generous view will be taken in this regard. If we consider the Technical Group in the Dáil, there may also be one in this House—

It is not a registered political party.

One does not have to be a registered political party. The word "party" in this context is probably closer to the meaning of being party to an agreement than to a political party.

Could one not construe the word "party" in the general legal sense, whereby a party to a case can be an individual as opposed to a political party?

That would be preferable.

I thank the Minister and Senator Mansergh for clarifying the matter.

Question put and agreed to.
Title agreed to.
Bill reported with amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

Without any pretence at being disorderly, I thank Senators for facilitating the passage of the Bill and debating it so thoroughly and scrupulously. I also thank Senator Brian Hayes for his party's amendments. I tend to agree with Senator Mansergh, rather than Senator Brian Hayes, on the legitimacy or illegitimacy of Articles 2 and 3, which, like Senator Mansergh, I regard as having been put in place to put in contest the status of Northern Ireland, rather than to make a serious grab at Northern Ireland. The terms of the articles are now immeasurably better than previously because they reflect what I, as a republican, believe to be the reality of the position.

One must also remember that as a matter of international law, Northern Ireland is not the same as Scotland, Wales or anywhere else, but a portion of this island, the status of which is determined by its people alone. This is significantly different even from Scotland and other areas to which Westminster power has been devolved on the island of Britain. From that point of view, this change has not been given away for nothing, but is a concession or compromise on the part of the United Kingdom of enormous significance. It is not simply a matter of a choice as to the status of Northern Ireland taken one afternoon in Westminster. Instead, it is a matter of international law laid down in a treaty now registered with the United Nations that the future of Northern Ireland is decided by a majority of its people, a crucial change of which one should never lose sight.

The House should thank the Minister for accommodating a wide ranging and interesting debate that has shown the importance of this issue which goes to the core of the body politic. It is good to have views such as those expressed today aired in the House. We could not finish on a better note than the Minister's last point.

I thank the Minister for his generosity in facilitating two of our six amendments. It is important we wish the new commission well. Its members have a difficult job to do and their work and recommendations will be important because they have a certain expertise in counter-terrorism and security matters, which we should not underestimate. The key to this issue is to forever remove the gun from Irish politics. This is the route for constitutional parties to take. Paramilitary parties must now sunder their relationship with illegal organisations. If this is done and we achieve a measure of agreement, the future is possible for the hardest men and women on both sides of the community in Northern Ireland.

Question put and agreed to.

When is it proposed to sit again?

At 10.30 a.m. tomorrow.