Section 13 provides for the position arising in regard to the custody and immunity of persons who are in the State for the purpose of the taking of evidence under section 12. The section deals with the position of a person who has come here to attend before a commission being held in this jurisdiction where a witness in this jurisdiction has been unwilling to travel to the other jurisdiction for the purposes of the trial. It is the reverse of the procedure which has been, one might say, the consideration behind this debate. We have assumed that Northern fugitives will be tried in our courts; this deals with the position of a fugitive from the South or some person against whom extradition cannot be exercised being tried in the North for an extra-territorial offence committed in the South. This section provides for the immunity of a person while he is in the State attending at the taking of evidence on commission.
Criminal Law (Jurisdiction) Bill, 1975 [Seanad]: Committee Stage (Resumed).
Without repeating myself and putting forward all the arguments already put forward on this side of the House in regard to the Bill as a whole, I appreciate that this section is necessary if the Bill is ever to work. I have already stated my doubts regarding the workability of the Bill but if it is meant to work this section is necessary. Part III deals with the power given to the Garda to arrest an accused person from Northern Ireland if he escapes. There is nothing very controversial in the section.
One query could well arise. When a person has been in the custody of the Garda here and is being returned to the North of Ireland, is there any way of protecting our gardaí against trumped-up charges that could be brought against them by a person who has been in their custody? I am suggesting that before the gardaí hand over such a person as is contemplated in the section there could possibly be a medical examination by qualified doctors of the condition of that person.
The Minister appreciates that one of our greatest concerns throughout the Bill is lest there should be any imputation of improper conduct to our gardaí or the courts. This type of provision could leave them vulnerable to unfounded allegations. I do not say these would arise regularly but the possibility is there. Would the Minister contemplate having a proper medical examination of people who have been in Garda custody and are being handed back to Northern Ireland so as to ensure that subsequently there could not be anything arising that would impugn the good name or conduct of the Garda? It could happen that a person subsequently injured in some way— or he could have contrived the injury in some way—could lay the blame for the injury on totally innocent gardaí who are being asked to operate what we regard as unworkable and undesirable procedure.
One of the hazards facing a policeman carrying out his duty is that he can be subject to malicious charges by criminals or people evilly disposed. It is a hazard that police all over the world have to face, and it is one of the considerations that makes the whole question of complaints procedures against the police such a sensitive subject. The protection for the Garda here is the protection that they have at the moment against such a charge—and I think it would be wrong to try to inhibit the right to make such a charge —maliciously made without foundation. That protection lies in the present procedures to protect the Garda against such charges. They are the investigative procedures, whether they be the internal Garda procedures or in the courts whereby a person seeks to prosecute a garda, and I do not think there is anything more required in this instance. I think it would be wrong to differentiate between the situation when it arises here and the ordinary situations, so to speak. The present procedures are adequate to ensure that the Garda will not be subject to being wrongly convicted. It cannot stop them being accused because we would then thereby produce a new consideration. What we want to ensure is that no unjust allegation can be sustained against the Garda. I am satisfied that the present procedures designed to investigate such allegations and ensure that justice is done to the Garda and the complainants are the proper procedures to deal with the situation.
The present procedures that the Minister refers to could be criticised by people outside the jurisdiction. In regard to the cases the Minister refers to, with which he is so easily satisfied, he is talking about cases that remain at all times within our jurisdiction. Therefore, if a citizen, justifiably or not, makes a complaint against a member of the Garda Síochána he invariably takes the case to court. I have been involved in some such cases. He has at all times to remain in the jurisdiction.
Here we are in a different position altogether, and that is what makes that ordinary procedure which the Minister is talking about acceptable. Where our Garda hand someone over out of their custody to another jurisdiction, we can see that the situation is not as simple as the Minister seems to suggest. If he is mistreated, maltreated, or contrives or appears to be so when he has left our jurisdiction, this is an entirely different position. We want to guard against that kind of imputation. It is fine to say the ordinary procedures apply and that the Garda would be vindicated in civil proceedings or criminal proceedings being taken against them.
At the same time to ensure that, even if such proceedings were taken, the best evidence would be available for the garda's defence, I would suggest that there would be an examination by a competent doctor before a person is handed over out of this jurisdiction to certify that at a given time and place before leaving our jurisdiction and the custody of our Garda, A.B. was in good, sound physical and mental condition and was not suffering from any ill-treatment. This is without precedent. I sympathise with the Minister to this extent only: in his whole attitude to this Bill and the various problems we have raised he has talked about the normal guarantees and procedures and provisions as if we are dealing with a normal situation. It is because it is abnormal and without precedent that we have to ensure that we propose that there be something without precedent as well. It is a practical step and one that I can see no good reason for not taking. It would ensure that if such vexatious claim was brought, the best evidence that could be made available would be made available by a doctor who had been present to examine the person before he left our jurisdiction. We are concerned that our Garda Síochána, who certainly have won and earned the best respect for us since the formation of this State, should not be vulnerable to any vexatious claims. Unfortunately, we cannot express confidence to a similar degree in the police force at the other end. We have to be realistic and introduce some practical safeguard.
There is a distinction to be made between the two points the Deputy has made. One is the answer to a vexatious claim. The answer to that is that under our procedures the vexatious claim cannot succeed until it is proved beyond doubt. The other point the Deputy makes is that the Garda should be warned in advance to take steps to have evidence that would prevent them being wrongly convicted on foot of a vexatious claim. I rely on the common sense of the Garda to ensure that they will be in that position. If they decide that the procedure demands that there should be automatically an examination before handing back the accused there would be nothing whatever to prevent that, unless the person has refused to submit to medical examination as he would have the right to do, but he could not allege ill-treatment if he so refuses. Again, he might make allegations of ill-treatment that would not show up in medical examination. Suggesting that medical examination is the answer does not tell the whole story. Whatever the Garda have to do to ensure that they would not fall into the predicament that Deputy O'Kennedy envisages would be a mater for themselves to decide administratively in a particular case. We could not write into this section a direction for the Garda to take steps to ensure that they have evidence in advance to meet a vexatious claim made by an accused in the other jurisdiction. There would have been nothing in the Bill or the section that would inhibit the Garda from taking common-sense steps to protect their interests. In so doing in a particular case I would expect that as a matter of prudence—and the Garda Síochána are prudent men with antennae as sensitive as any of us to sense what might be to their detriment—they would take appropriate steps in an appropriate case, but this is not something we can write into this Bill.
I am happy with the Minister's response because he is conscious of the fact that possibly it might not be something that could be introduced by way of amendment. There is no end to the inventiveness of the human mind. I am glad the Minister has said he would expect the Garda to take certain steps if they thought that such vexatious claims could be made against them. I take it from that that it will be open to the gardaí—the Minister might even encourage them—to arrange for such medical examination, and if such is the case I would be quite happy.
When the Minister talks about a vexatious claim having to be proved beyond doubt he overlooks the fact that it is not necessary in a civil prosecution to prove a vexatious case beyond doubt, simply on the balance of probabilities. I hope the Garda authorities will now know they have this right to protect themselves.
This section provides that a person who is charged with an extra-territorial offence may decide, instead of standing his trial here, to go back to the North of Ireland and stand trial.
This section is to ensure that a person will not have to stand trial twice for an offence for which he has been previously convicted or acquitted.
This gives the right of audience to Northern barristers or solicitors in our courts. The reciprocal right is given to our barristers or solicitors before the commissioner. There is not a reciprocal right before the courts in Northern Ireland that would arise in a case where a person from the South is being tried in the North. Where a person has taken refuge in the North and wants to be represented by counsel from the South, there is no reciprocal right as of now. One reason for that is that it is not possible under the system there to provide full reciprocation because solicitors have no right of audience in the higher courts, but I think the general movement towards the right of establishment under the EEC is going to take care of that. Anyway, there may be certain reciprocation between the two Bars which will deal with it as well. In fact, I imagine that a situation where somebody from the South is standing trial in the North and has refused to come down South for trial and that person wants a solicitor and counsel from the South, would be extremely rare if it ever arises.
There appears to be no objection in principle to this section. There is only one small matter I would like to raise, that is, the right of audience, as mentioned by the Minister, to Northern Ireland barristers or solicitors who have the right of audience and to practise in relation to any proceedings before the commissioner. It appears that a corresponding right is not provided for in the English statute, namely, the right of Irish barristers and solicitors to attend before the commissioner in Northern Ireland. This is not given in the English statue. The corresponding English statue would seem to have schedule 4, Article 4b, as the appropriate reference, which does not seem to provide for the right of audience to an Irish barrister or solicitor. I am not so much concerned about safeguarding the rights of barristers and solicitors but I am concerned about the rights of the accused person. Even if an accused person is adequately represented by a Northern Ireland barrister or solicitor before the commissioner, the important matter is that he should have the freedom to have his own barrister or solicitor appear at such a hearing. In many cases he may wish to have the services of an Irish barrister or solicitor at such a hearing. It can be argued that this is a small point, but it is indicative of the lack of care that the English authorities are displaying for the rights of an accused person. In its own small way it may serve to highlight the fears we have about this Bill, because these fears are based in great measure on sound reasons. If the rights of an accused are not spelt out in express terms by legislation, then we must ask the question: What rights does he have?
The Minister is relying on the bona fides of the Northern Ireland security forces in relation to matters about which there are statutory provisions. To rely on the bona fides of such persons in the absence of expressed statutory provisions and expressed statutory rights seems to be not on, as it were.
I should like to have the Minister's views on this.
I am satisfied that the right of an accused to have counsel and solicitor from the South, assuming that the commission is in the North, is guaranteed. He is given the right to be represented by counsel or solicitor in the proceedings, the proceedings in question being before a commission and not before a court. I am advised that, as drafted, it ensures that the counsel or solicitor does not necessarily have to be a person practising or living within the jurisdiction where the commission is being held because the commission is not a court as such. Consequently, as drafted, the paragraph to the Schedule to which Deputy Collins referred gives an accused the right to have counsel or solicitor from this jurisdiction. That has been clarified to my satisfaction and that is the interpretation that is put on it in the other jurisdiction.
Do we confer a right on members of the bar and solicitors from the North to act at a trial here?
Yes.
But that is not reciprocated?
No.
There may be a lot of ancient anachronistic restrictions which might make this difficult, but it seems very desirable that, as the Minister has presented this Bill to us, it is reciprocal in every possible detail. In this rather important detail it is not reciprocal. The Minister will note that we did not take any issue on section 14. Where a particular accused persons opts for trial in Northern Ireland, he could well have a preference for a particular solicitor or a particular counsel. As the Minister knows there are a number of counsel and solicitors in Dublin who specialise in defending in the broadest sense——
That sort of case.
Exactly. They discharge a great obligation in doing so. Otherwise our system would break down; people would be motivated by their own personal prejudice. If their choice would be that a particular solicitor instructing a particular counsel would defend them in the proceedings in Northern Ireland, I cannot see why it could not be reasonably arranged that they could be so allowed, particularly in so far as a person from the other side being charged here can express such a choice in favour of his solicitor and his counsel. If we are going to be reciprocal in this legislation, then let us be reciprocal in every possible way. If section 14 is to operate, the immediate consequence of that should be that the person who has instructed his solicitor or counsel here should be allowed to retain them.
As the Minister knows, a certain degree of confidence and trust grows up in pre-trial consultations, and so on, between the person who is being charged and those who professionally represent him. That cannot start to be developed again in a totally new environment in the North of Ireland. I welcome the provisions in section 16 of our Bill. I welcome the fact that barristers or solicitors from the North of Ireland, in relation to these offences, can have the full right of audience in our courts the same as their colleagues from the South. I welcome that whole-heartedly. That is all we are concerned about here.
What difficulties or objections has the Minister met from the other side in according the same facility to a person from our professional groups representing people there? If I were engaged on behalf of somebody and I felt I owed it to him professionally to defend him to the best of my ability, with the fullest of my attention, I would want to defend him wherever I could. As the Minister knows, it is not my function to come to a decision as to a person's innocence or guilt. Perhaps the Minister could tell us a little more about the problems he met in failing to get this reciprocal facility for solicitors and barristers in the South in defending people in the North as is being provided for their colleagues.
The right to audience was written into this Bill in recognition of our general policy here that there should be as much movement as possible between the two communities North and South, and that thereby barriers would be broken down and that, if we were serious about having an all-Ireland dimension, notwithstanding what might be lacking in the other Bill, we could not have our Bill not giving this right of audience which we think is desirable. It has not been reciprocated. I must say I regret it was not possible to have it reciprocated.
I think Deputy O'Kennedy will agree that the need for reciprocation will almost certainly never arise. In theory under section 14 I suppose it could arise, but we have to debate the Bill in the context of reality. The reality is that, if a person has an option, and if he is the type of person who cannot be defended except by the lawyers who specialise, it is extremely unlikely—indeed, it passes comprehension—that such a person would opt to go for his trial to the other jurisdiction. In reality I think it will not arise. As I say, that is the argument looking at the reality, but it does not exclude the theoretical position that it might arise.
I regret that reciprocation in this regard has not been given. It is available for the commission, but not for an actual trial. One reason is the fact that solicitors here have audience in all courts. In Northern Ireland their right of audience is still confined to the lower courts. That is one point which was put to me. A second point, which may not be as relevant now as it was when the Bills were being constructed, is with regard to—I do not know what the expression is—mutual calls or exchange of calls. There may be developments on that front shortly which would, in practice, ensure that there would be reciprocation. There was, perhaps, an element here of the professional bodies rather than the executive authority of the two States being involved. As Deputy O'Kennedy knows, these bodies are autonomous and they are quite jealous of their privileged position. There are certain considerations in that regard as to why reciprocation was not offered.
Is the Minister speaking of the Incorporated Law Society?
No. There is another professional legal body in a privileged position here and there and, while there would be executive good will for full reciprocation, it was felt that until such time as the professional bodies were in agreement with it, it might not be apt to legislate for it. Certain administrative changes are taking place which will make it a non-issue very soon, in effect.
In the event of a member of the Northern Ireland Bar being called to the Bar here, the provisions of this Bill do not have to take effect. He would be entitled to practise as a member of the Bar. It is important to distinguish between what happens in relation to those who have been called to the Bar here. This enables them to practise in any event in the courts here. I welcome that development to a very considerable extent. There have been some very distinguished people, even in the recent list, who in one sense did us the honour of being called to the Bar in the South. Like the Minister, I welcome this trend. I do not want to name names. These names are well known, or some of them in any event.
It has to be put on record that if this facility is there for members of the Northern Bar to be called to the Bar here, it is regrettable that it is not available vice versa. We might as well state some facts. We have to question, why not?
The Deputy may not have too long to wait.
I would be thrilled to think that is so. Then this section would not be necessary. The two things might happen simultaneously. To the extent that I have not got long to wait, we are getting some good news today on a couple of matters from the Minister. The Taoiseach is not inclined to give any information. There was the famous occasion when the Taoiseach unburdened his soul to the Minister about the contraception debate and how he intended to vote on that occasion. I cannot feel badly done by today——
The Deputy is about half an hour too late with that.
——because the Taoiseach did not give me information when he does not even tell his own Ministers. It needs to be said that what happens on one basis should happen on the other. If we are anxious to co-operate, and communicate, and give the right of establishment, to use the European term, there can be no justifiable objection to according a similar provision vice versa.
It would be contrary to the spirit to say: "We will only give it if...".
I appreciate that. It has been accorded here at the Bar of Ireland and not on conditions. I welcome that. I note that up to the moment it has not been accorded vice versa. I do not welcome that. I welcome the fact that there may be a change of mind on the way. We can try to knock down barriers—and I welcome each barrier that is knocked —but we must recognise that this does not mean we should not deplore the fact that barriers are not being knocked at the same time, and at the same rate, and with the same enthusiasm, by those in the North of Ireland. We must regret that.
If what the Minister anticipates is correct, this section will not be necessary. When the Minister said it almost passes comprehension that the provisions of section 14 would be called into operation—a good deal of this Bill passes comprehension——
That is not quite what I said. I said it passes comprehension that the type of person who would seek to go North for trial would be the type who could only be defended by the type of counsel referred to earlier by Deputy O'Kennedy.
A number of matters in this Bill pass comprehension. Obviously, the Minister has not got agreement from the other side. If somebody presented to the Minister the objection about solicitors having the right of audience it is a nonsense excuse.
We have to be polite.
I said it was a nonsense and the Minister said he had to be polite because, perhaps, he could not say what I said. I will say it for him, it is a nonsense. Let us have something more valid than that.
With regard to the words, "any other person", I should like the Minister to indicate what other persons outside of members of the court and legal practitioners will be given the name and address of witnesses?
The person who the court considers should have the information in the interests of justice. "Any other person" is qualified by the preceding clause:
where the court considers it required in the interests of justice, any other person whom the court specifies...
In other words, the section sets out that the names can be given to the court, its officers, the parties, their counsel and solicitors and, provided the court considers it is in the interests of justice, to any other person. It will be for the court to decide.
Here again one of the fundamental principles in the procedures of our courts, that the law will be administered in public and that the people will have the right to free, open and public trial, has to be compromised because of the nature of the procedures being introduced. Anybody can understand the practical reasons for refusing to disclose the names of witnesses but this is one of those provisions which I regret has to be introduced into our law. One of the great guarantees of our criminal law is that cases under that law are heard in open court in the interest of the defendant and so that the public can see that justice is being properly administered. The newspapers can report on such cases to the public. There are stringent regulations which operate on reporting cases. Such reporting must be limited to the detail of the case, as distinct from comment on it, and the fact that any matter that might be sub judice cannot be reported pending a judgement.
This is all long established, the relationship of the accused to the court, to the public and the relationship of each of these to the press through whom the public will become aware of what is happening. Now we have to undermine all that; we have to set that at nought. I can see the practical reason, but it only confirms the objections we have to this procedure. The Minister must have a great degree of reluctance when he sees all the anomalies as they turn up on this Bill, anomalies that are new to our law and which will, in the final analysis, make this unworkable and, in many ways, very undesirable.
I share with Deputy O'Kennedy his regret for the situation that gives rise to this Bill but I do not share his regret for the Bill because the provisions in it are good and appropriate to the times that we are in. I share the Deputy's regret that the situation is such that a Bill of this type is necessary. The Deputy's sentiments are impeccable when he says he would like to see a situation where justice could be fairly and openly administered. We would all like to see that but would justice be fairly and openly administered if a person who was prepared to give evidence found his life in danger or lost his life by reason of publicity attending the giving of evidence by him? That is a live possibility. Witnesses have been murdered. I can recall the horrific case of the bus driver in Belfast who witnessed the hijacking of his bus. Because he happened to be the bus driver he was in a position to identify the hijackers.
That happened in the North but can the Minister recall cases that happened here?
I accept the case I referred to happened in the North but that witness was shot down in front of his wife and children at his own hearth because he was in a position to say who hijacked the bus, a serious offence but not serious in comparison with others. We are debating this Bill in an all-Ireland context and this Bill seeks to provide for the trial down here of offences committed in the North, and, presumably, the witnesses will be from the North in regard to actions committed in the North. In theory, there would be witnesses who would be in the same position as that unfortunate man. That is why we have to face up to the fact that we are not debating the Bill in the context of normal times but rather in the context of abnormal and horrendous times.
In the Bill we must take power to protect witnesses or otherwise justice would come to a standstill. It is a proper provision to have in the Bill. It is not novel in our system in so far as we have in the Special Criminal Court Rules a provision that the court may direct that the name and address or any part of the evidence of a witness not be published. That goes further than what is in the Bill. Indeed, it is possible because of the provision of that rule that it might not be necessary to have it in the Bill. While I agree Deputy O'Kennedy's sentiments are impeccable and in normal times are what should be in a Bill—a provision like this in a normal Bill would not be acceptable to me either—we cannot debate this Bill out of the context of the present time. That context requires that witnesses be protected.
Lest there be any misunderstanding, I said I recognised the practical need for a provision of this nature having regard to the unusual times that are in it. I pointed to it as being another indication of the fact that so much that is new and unwelcome in a normal time is now having to be imported into our law in this Bill. I would vie fiercely with the Minister in my determination to deal with people of this nature. It is our obligation. I believe any Minister charged with this obligation will show the same determination, may be not so much publicised—I am not speaking of the Minister in this regard. A Fianna Fáil Government would do just that. I feel the same determination and I agree with the Minister that this has to be done. However, after all of that this type of Bill and this provision underline the things we have to do to our law to give effect to procedures proposed in the Bill. We proposed alternatives and they were unacceptable so that we have to work this one as best we can. In so far as we are doing that I accept that section 17 is necessary.
There may have been some misunderstanding about section 18. Prior to the Criminal Procedure Act, 1967, in preliminary proceedings in the District Court there was a procedure whereby the evidence of the prosecution was taken on oral deposition. This was an extremely tedious procedure. What happened in practice was that each prosecution witness was called, his evidence was given by him verbally and written down, in longhand, by the District Court clerk before being signed by the witness. It was a most tedious procedure. If cross-examination took place at that stage— this was most unusual—the answers were written down in longhand. It meant an abnormal use of the time of the District Court and it was a procedure that was of no benefit to the parties, prosecutor or defendants. There was general consensus that is should be changed.
The change was made in the Criminal Procedure Act, 1967. It provided that this preliminary examination could be conducted by means of documents served beforehand on the accused. Those documents were handed to the district justice and he decided on foot of those documents whether there was a prima facie case. Instead of the witness going into the witness box and having his evidence written down verbally, the evidence that was available was typed out by way of statements and was handed to the accused, his lawyers and the district justice. When the district justice considered it he could hear any submissions that might be made by the defendant as to whether there was a prima facie case.
In the 1967 Act the right was preserved for an accused to insist on an oral deposition if he wanted. That is sometimes availed of, but not very often. It might be availed of where defending counsel thought that, if a witness had to go to the court twice, he might change his feet on the second run. The procedure is only occasionally availed of.
What the section did not provide for was that, if the witness is outside the jurisdiction and is not reasonably available, his verbal evidence be dispensed with. Consequently, there was a gap in the 1967 Act. This amendment seeks to close that gap not merely in relation to proceedings under the Act but in regard to criminal proceedings generally. In the case of a preliminary hearing, should the witness be outside the country his unavailability to give verbal evidence will not invalidate the trial or the preliminary proceedings. His written documentary evidence will be available. Should he maintain his absence for the purpose of the substantive trial, and if his evidence is critical to the prosecution's case, of course the case must fall and there will be no injustice done to the defendant. However, to ensure that advantage will not be taken of this loophole at the preliminary stage this amendment is being introduced now.
The Minister has said that a situation could arise at a preliminary hearing where a person could be examined by way of sworn deposition—it is not as unusual as the Minister has suggested. The defence counsel, solicitor and the defendant have one opportunity of watching his demeanour and to some extent seeing if the person is wrong-footing himself by comparison with his subsequent evidence. They have one opportunity to do this at the preliminary investigation. Subsequently at the trial in normal procedures—to use the Minister's phrase—the witness appears again. In many cases he appears twice and is examined twice. To a real extent that was the intention behind section 7 (2) of the Criminal Procedure Act, 1967.
In this case, as distinct from the normal procedure, we can have a situation where a witness does not appear at the preliminary hearing and, secondly, he can have his evidence taken on commission in the North of Ireland and will not appear at the trial. The accused may never see the witness. We could have a situation that is in striking contrast with our law where a person is available physically at the preliminary examination and at the trial. Under this procedure if it appears to the district justice that a person is outside the State or where it is not reasonably practical to secure his attendance, he can dispense with him under section 18. The district justice can make that decision.
Yes, but he would have a written deposition.
I know that but I have been concentrating on the physical presence. A person who cannot be produced here at the preliminary examination to enable him to be tested, which is the purpose of that section in the Criminal Procedure Act, 1967, can absent himself from the trial. He can give evidence on commission in the North of Ireland and a document is sent down here, certified by the commissioner in the North and probably counter-certified by the judges who sit as observers. That is the extent of the evidence.
The Minister must accept that is a major change from anything in our law and it is a most undesirable change. It is not just a question, as the Minister seemed to imply, of curing what was not in the Criminal Procedure Act, 1967. The Minister knows that if a person was not available normally to give evidence in a normal criminal case here for an offence committed here, the answer was that his evidence was not available anyway, that if one were depending on his evidence to have someone charged and convicted, the DPP or the counsel representing him would decide to drop the prosecution because there would be nothing to go on. Here we have the manufactured position where there is nobody to go on, where the only thing available is a document.
This is a very undesirable novelty. What we are trying to do here is to turn the system topsy-turvy and, even more important, it is not according to an accused what we have always endeavoured to accord, namely, a full proper trial with every known protection and guarantee. One such guarantee is that the witnesses attend. Up to now we guarantee that if necessary they attend twice but under this Bill it could happen that they would not attend at all. That is some change and one that we will regret.
It is not correct to say that they would not attend. Under the procedures of this Bill their attendance may be by way of commission, but that is vastly different from saying they do not attend at all——
It is not the trial.
It is connected with the trial. Deputy O'Kennedy has interpreted this section as if it is going to be part of the procedure of the Special Criminal Court whereas the contrary is the case. The preliminary hearings that are part of normal criminal trials do not, except in very rare circumstances, occur where the trial is before the Special Criminal Court, because the person goes directly to the Special Criminal Court, obviating the need for this preliminary hearing, on the Attorney General's certificate or if it is an offence scheduled under the Act constituting the Special Criminal Court.
The procedure we are discussing here does not normally come into the picture in cases coming before the Special Criminal Court, and extra-territorial offences will be Special Criminal Court offences and will go directly to that court. It is the preliminary investigation in the District Court we are talking about on this section and this section has not been introduced to deal merely with this particular Bill and the new regime, but with the law in regard to proceedings in respect of all criminal offences. It will not apply to offences coming before the Special Criminal Court except on very rare occasions.
I am not aware of anything that has happened in the last few years in that way. There is power in the Attorney General to avoid this preliminary deposition procedure and to send the accused directly for trial to the Special Criminal Court. There is no question of a double appearance of the defendant arising.
This amendment is meant to deal with the preliminary procedure in regard to ordinary criminal trials. In such cases there is a preliminary hearing in the District Court which can be on oral or written depositions and this provides that, if there is a call for oral depositions and the witness is not available because he is outside the State and it is not reasonably practicable to have his attendance, the preliminary proceedings can proceed notwithstanding. The case can then go before judge and jury and if at that stage the witness is still missing and there is a gap in the prosecution case, and if that gap appears to be fatal, a nolle can be entered. The fact that the preliminary hearing takes place without the physical presence of the witness does not do any injustice to the defendant. What takes place in the District Court is preliminary only, to see if there is a prima facie case. Supposing that the missing witness is critical to the prosecution or if his written evidence is inadequate to support a prima facie case, then the matter will be dismissed at District Court level.
As I have said, the ordinary criminal procedure does not apply to Special Criminal Court offences. Accused persons go directly to the Special Criminal Court without preliminary procedure and the trial will not be vitiated because a witness is not available to give evidence orally at the preliminary hearing. However, if he continues to be absent at the later hearing the case falls.
Accepting it does not apply in regard to the Special Criminal Court, the Minister will appreciate that sections 17 and 19 relate almost exclusively to extra-territorial procedures and this seems to have that in mind. In most of these cases there would not be a preliminary hearing in any case, and the procedure before the Special Criminal Court would not operate in that way. However, on reading the section it appears the district justice would have to be satisfied on two counts: (a), the person is outside the State, and (b), it is not reasonably practicable to secure his attendance before the justice. Then, on what evidence is the justice to be satisfied, first of all, that the person is outside the State? Would a certificate be presented, would evidence be given or would a member of the Garda say, "We are satisfied he is outside the State"? Would the justice have to be satisfied on both counts of the person being outside the State and of it not being practicable to secure his attendance?
In practice there would not need to be evidence if it appears to the district justice that the person is outside the State and that it is not practicable to secure his attendance. Both conditions have to be satisfied. In practice this would be a prosecution witness, a witness the defendant had asked the prosecution to produce, and the prosecution would have to come to the court and say, "I am sorry, this witness is outside the jurisdiction and it is not practicable for us to have him here". If it so appears to the justice that his absence does not prejudice the preliminary proceedings, I think an averment by the prosecution authorities, having regard to the onus on them to see that justice is done before the court, might make it appear to the district justice that the witness is outside the jurisdiction and could not practicably be produced. If on foot of the averment by the State it appeared to the district justice that the presence of the witness could not be secured, that would be the end of it.
The Minister will see that the wording of the section is that a simple averment by the prosecuting counsel would make it appear to the district justice that the person was outside the jurisdiction, but does not that seem to be going very far? Could the prosecution say, "As far as we know this witness is outside the State and as far as we know it is not practicable to have him here," and, if so, is not that going too far?
It is not an averment prosecuting counsel would make lightly. He would make it only when satisfied of the true position. The defendant, having asked for the witness, would probably know of his whereabouts, and if it was known that he was in the State, prosecuting counsel could be contradicted there and then. If it appeared to the district justice that the witness was not outside the State a new situation would arise. There might be information available to the Garda which would be passed to a prosecuting counsel which in turn would be passed to the court and an averment would be made conscientiously and bona fide. If the defence could show that it might have been made otherwise the district justice would be entitled to say that it did not appear to him that the person was outside the State.
I have little concern—none at all in fact—about its being made at that stage except that it could be made with little real information.
That would be a bad case.
It would not be counsel's function at that stage to conduct an investigation.
It could be made by the State. Even if it were made by the State wrongly—or slightly carelessly, to go that far—no injustice would be done because that witness would be available for full cross-examination at the subsequent hearing and, if it should transpire that the averment made in the District Court was made carelessly, in bad faith or by mistake, that would be a matter that would obviously weigh with the court, and I have no doubt defence counsel would make a fair amount of play with that in cross-examination. It would be a relevant matter to draw to the attention of the jury.
The Minister has put a great many things on the record today that will be noted by the defence in criminal cases.
This section also has given rise to some misunderstanding. It was argued that it gave very, very wide powers of arrest without warrant, some sort of new and draconian powers. That is not so. In all but a very few cases powers of arrest exist in respect of the corresponding offences committed within this State. What this Bill is doing is creating new offences. The acts comprising these offences are not new. They are already well known to our criminal law but, technically speaking, these are new offences because acts outside our jurisdiction are being made offences against our law. Legally then they are new offences.
These same acts committed within the State are part of the criminal law here and have been for quite some time and powers of arrest already exist in regard to them. In most cases these powers of arrest without warrant exist by virtue of the common law because the offences are felonies. In a few cases the powers of arrest are conferred by the statue creating the offences.
The Bill does not provide that these new offences, committed extra-territorially in Northern Ireland, are to be felonies and, if we did not have this section, it would not be possible to arrest for these acts without a warrant. If, for example, a person suspected of committing a murder in Northern Ireland were seen in this State it should be possible to arrest him or her without first getting a warrant and, unless we take this power in this section, it would not be possible because the offence would not be a felony. Murder committed within the State would be a felony and the old common law power of arrest without warrant would apply.
As I said in my Second Reading speech on 20th November, 1975, at column 1702 of Volume 285 of the Official Report:
Section 19 confers powers of arrest without warrant in connection with an extra-territorial offence. These powers correspond to the present common law powers of arrest in respect of felonies, and they are given by the Bill because the offences in question are not being made felonies. If, as I hope, provision is made by legislation here abolishing the distinctions between felonies and misdemeanours in the case of offences generally, these are the powers which I should expect to see conferred by the legislation in consequence of the abolition.
If, at some future date, this old distinction between felonies and misdemeanours is abolished, and I think it should be because it is anachronistic and leads to anomalous situations, certainly the measure abolishing it will have to include powers analogous to the powers now in section 19, namely, powers to arrest without warrant for these types of offences. Section 19 seen in that context then is clearly not to be seen as anything draconian but as a reasonable consequence of the legal innovation this Bill devises. As the laws stand, most acts which are deemed extra-territorial by section 2, if committed within this State, would be felonies and the person committing them could be arrested without a warrant. The acts committed in Northern Ireland carry the same consequence of arrest without a warrant.
The House and the Minister should be extremely slow before extending the unfettered right of arrest without warrant. Apart from anything else this section imposes certain obligations on the Garda in relation to searching and it would be of interest to know whether or not the Minister obtained the views of the Garda Síochána before the section was drafted. I am not altogether sure that the additional powers given to the Garda are powers they were looking for or would necessarily want. I would like the Minister to clarify for me whether or not a member of the Garda Síochána can now enter any building, institution or house and arrest a person under sections 2 and 3 without a warrant.
I refer the Deputy to subsection (5), which provides:
For the purpose of arresting a person under any power conferred by this section a member of the Garda Síochána may enter (if need be, by force) and search any place where that person is or where the member, with reasonable cause, suspects him to be.
If a garda has reasonable cause to suspect an offence has been committed under section 2 or section 3 he can enter a house without warrant and search that house. It is not quite correct to say these are new powers given to the Garda. They already have these powers. Every citizen has the power of arrest under common law where criminal acts are committed within the State. If we had put another subsection in section 2 saying that "all offences under this section shall be felonies" there would be no need for section 19 because the common law power to arrest would follow and there would not be a word of criticism. We did not put that into section 2 because the movement is towards abolishing the distinction between misdemeanours and felonies, but that does not mean we should also move to remove the old common law right of arrest without warrant because the nature of the crime is so serious there must be power for gardaí and citizens to arrest without warrant. If there were not, grave harm and mischief could ensue to individual members of the community or to the community itself. Far from giving extra power to the Garda this merely restates in statutory form powers they have always had.
The Minister must agree with me that a farcical situation can develop under this section of the Bill. If an ordinary lay person, say, Deputy Brugha or I, can go to the Minister and say: "Under sections 2 and 3 of this Bill we are coming into your house, we are looking for somebody, we will arrest you" is this not far fetched? Is it not impractical? Does it not show there is something wrong?
Deputy Collins and Deputy Brugha would not have any power to come into my house and arrest me. Only a garda can do that.
What power has the ordinary layman got? Section 19 (1) provides that any person may arrest without warrant anyone who is or whom he, with reasonable cause, suspects to be in the act of committing an offence under section 2 (1). If Deputy Brugha or I, being law-abiding citizens, meet the Minister in any part of County Longford or County Westmeath and say to him: "Come along with us" have we any power to do that?
The Deputies must suspect me of being in the act of committing an offence under section 2 (1). If, subsequently in the court, I sue the Deputy for unlawful arrest and false imprisonment I will succeed in getting substantial damages against the Deputies unless they can show they had reasonable grounds for what they did. The common law power is not untramelled in the sense that it can be exercised viciously or vindictively. It is a power which can only be exercised when the person exercising it has reasonable cause to suspect. That is a matter for the person's own judgement at the time. The Deputy may say that people will be conservative in the exercise of that judgment. It would be only right they would be conservative because it could be a pretty draconian power if not so tramelled. There is a proper obligation binding on the person who proposes to exercise the power to exercise it reasonably. He can only do that when he has a suspicion. It would have to be a reasonable suspicion. The court would not hold that a mere flight of fancy or some particular piece of bias would be a suspicion within the meaning of this particular power.
Deputy Collins and Deputy Brugha, if they decided to exercise such a power, would leave themselves open to the consequences I mentioned. What is said in section 19 (1) is merely restating in statutory form what is the present position with regard to a felony when it is committed within this jurisdiction. I concede that the situation where the power which is given under section 19 (1) would be exercisable would be extremely rare. In practice, it would boil down to the ordinary citizen actually observing a felony about to be committed or in the course of commission. When one bears in mind that we are dealing with extra-territorial acts here it is unlikely that two citizens here would see such an action taking place because the substantive act would take place in the other jurisdiction. They might see, or become aware of, here the preparation for a crime to be committed on the other side. For example, the preliminaries to cause an explosion would be an offence under section 2. It is possible that that could be an arrestable offence or the type of offence that could reasonably be expected to come within the ambit of section 19 (1).
This would be a wonderful section on which to discuss suppositions for the remainder of the evening. However, I do not propose to use the section for that purpose. As an ordinary layman, I feel that the power of arrest given to the ordinary person or, indeed, the power of arrest under warrant given to members of the Garda Síochána is very wide and is something that instinct tells me we should be very careful of. If two people decide to arrest somebody whom they believe can be arrested under section 19 (1), can the Minister say how far they can go in arresting a person? If under section 19 (1), as an ordinary citizen, I arrest a person what happens if that person offers resistance? Can I forcibly bring that person in? What happens to me if I get injured in the process, have a permanent injury, loss of a limb or some disability?
Deputy Collins has raised three issues. He asks if he can arrest, how does he do it and what are the consequences for him? The answer to the first question is that he can arrest a person. All the Deputy needs to do before he arrests a person is have a reasonable suspicion that that person has committed an offence under section 2 (1) or section 3. He can also arrest him if he has a reasonable suspicion that the person is in the act of committing an offence under section 2 (1). We are speaking of extra-territorial offences.
Deputy Collins or any citizen has a similar right already under common law in regard to similar acts committed within this jurisdiction. That right is already there and has always been there. By section 19 we are extending it to acts committed outside the jurisdiction. Deputy Collins can exercise that right provided he reasonably suspects that the crime has been committed by that person or reasonably suspects that that person is in the act of committing an offence—that is, under section 2 (1). Those rights are given under section 19, subsections (1) and (2), which deal with the rights of the ordinary citizen which a fortiori include members of the Garda. The Garda get extra power later on in this section.
Under section 19, subsections (1) and (2), the position of the ordinary citizen is dealt with. If the ordinary citizen has reasonable grounds for suspecting that an offence is being committed under section 2 (1) of this Bill or that a person has committed an offence under section 2 (1) or section 3, he may then arrest without warrant. There is no doubt that the answer to the first question is that if Deputy Collins has reasonable suspicion he is entitled, by virtue of this section, to arrest the person. How he arrests the person is a matter of the practicality of the situation that he meets. He is entitled to use a reasonable amount of force to restrain that person and bring him to a lawful place of detention. How much force he can use will depend on his physical size vis-à-vis the size of the person he proposes to arrest. This is a matter of common sense and what is feasible in the situation. He is legally entitled to use an appropriate amount of force to arrest the person concerned.
The third question asked by Deputy Collins is what happens him if he gets injured. That is not a question he should ask because a brave citizen going to carry out his duty will not be deterred or will not even take such a matter into consideration. However, it is a highly practical question. Until recently nothing could happen and Deputy Collins would have to suffer his injury. Since we introduced in 1974 the scheme for compensation for personal injuries criminally inflicted Deputy Collins, like any other citizen who would be criminally injured, would be entitled to claim from the State compensation for injuries he might receive in the very commendable act of arresting a person for an offence under section 2 or 3 pursuant to the powers given under section 19, subsections (1) and (2). I want to emphasise that the powers given in this section are not new powers. They are restating in statutory form the common law powers which exist already and always have existed.
Can the views of the Garda Síochána on this section be made available to the House?
That is a most unusual request and I am not prepared to accede to it. I am not prepared to say if any particular viewpoint has been expressed by the Garda Síochána in regard to this for the simple reason that this is not giving any new powers to the Garda. The Garda already have these powers. Citizens already have these powers under common law. We are merely restating in statutory form what is already part of our law.
Under section 19 (1) if a person vindictively effects an arrest that person is open to be sued in the civil court. The question I want to ask the Minister is: if that does happen— and we are dealing with an unusual area here between North and South—is that person liable to a criminal prosecution? I am talking about false information or——
Yes, that person could be liable. If a citizen excessively and illegally exercises the powers given to him by common law to arrest without warrant, or given to him by this statue to arrest without warrant, he is liable for the consequences of his actions and those consequences may involve criminal prosecution and may involve civil action.
Subsection (5) says a garda may enter if need be by force to search any place. I take it that means he can do so without a warrant?
Yes.
But only for the purposes mentioned?
That is all, and he must have reasonable cause to suspect the offence was committed and reasonable cause to suspect that the person wanted is in that place.
Are there any cases on record under common law of arrest by members of the public as distinct from the garda?
Yes. It occurs not infrequently. The store detective who arrests a person accused of shoplifting is a member of the public in this context.
But he is being paid for the job.
Yes, but any person who is not a member of the Garda is a member of the public irrespective of whether he is paid to do a particular job or not.
That is in a special area.
It is, but it is an example of a citizen exercising his common law powers of arrest. There is no other power which that person has to arrest. Likewise, if a soldier effects an arrest of a person suspected of committing a felony, that soldier is acting as a member of the public. I am sure there have been what we might describe as nonspecialist cases but I have no examples available. These are the most common examples of where an ordinary citizen exercises this power.
Can the Minister say if under subsection (5) a garda enters a home by force in the belief that he is doing so under sections 2 and 3 of this Bill and finds he is wrong and does damage as a result of entering by force, will the Garda authorities compensate the owner of the property for the damage done?
In such a situation the State could not be ungenerous. If the mistake were made by a servant of the State, obviously the State would have to put right the citizen's position. Whether there would be an action to have it put right or not would depend on how reasonable or bona fide was the action of the garda in question and whether any truth could be adduced in that regard. Where a clear and bona fide mistake was made I do not think it would give rise to legal action and undoubtedly the State would have to compensate that person. That is not something you can write into an Act of Parliament.
During the discussion on this section the Minister has more than once used the words "reasonably suspect" and "appropriate amount of force". Who determines what is reasonable suspicion or the appropriate amount of force a citizen may use in the course of arresting a suspected person?
These matters only come to be determined if there is a dispute between the garda or citizen and the arrested person, a dispute which would come to court afterwards. In other words, if the citizen who is the subject of the arrest or search alleges that there was abuse of powers and takes appropriate action, then it would be for the court to determine, having heard the garda give evidence and the citizen give evidence, whether the party concerned acted with reason or not.
I should like to comment on subsection (2) of the section. The Supreme Court has laid down that bail is an absolute right. At present under the 1967 Criminal Procedure Act in very serious cases bail can only be granted by the High Court. It seems to me to try to limit the granting of bail to cases where the Attorney General's consent is required and this may not be in accordance with the law as to bails laid down in Callaghan's case. It seems that the provisions of the Criminal Procedure Act are more desirable, namely, in very serious cases the right or power to grant bail is to be confined to the High Court and cannot be dealt with at a lower court level, whether the Special Criminal Court or a District Court. It seems to be unnecessary and undesirable and possibly contrary to Supreme Court rulings in regard to bail to require the consent of the Attorney General before bail can be granted. The Minister might deal with that matter briefly.
I do not think the section could be interpreted as Deputy Collins has set out. The section says:
Where a person is charged with an offence under section 2 or 3, no further proceedings in the matter except such remand or remands in custody or on bail as the court may think necessary shall be taken except by or with the consent of the Attorney General.
All this means is that the Attorney General is the person who determines when the trial is to take place and that no further proceedings can take place without his consent other than such remand or remands in custody or on bail as the court may think necessary. The consent of the Attorney General obviously is not relevant to the question of whether there is a bail application or not. That is the accused's right. Obviously, the Attorney General's view on whether there should be bail or not is something that he is entitled to make known to the court but he cannot in any way block the right of the accused to apply for bail. That is not what the section says or purports to say because as the Deputy points out, it could be a matter concerning the Constitution, having regard to judicial decisions already made. It cannot be open to that interpretation.
The arguments here are the same as those used on sections 4, 5, 6 and 7. I do not believe there is any purpose in repeating them now since they have already been rejected by the Minister when we dealt with the sections mentioned.
The section is a drafting section consequential on the amendment of the sections to which the Deputy referred and I agree with him that we have already covered that territory.
Amendment No. 4 in the name of Deputy Collins was discussed with amendment No. 1.
This is under section 22.
Amendment No. 4 was discussed with amendment No. 1. It may not now be discussed again; it may be moved.
We now have a new amendment.
Amendment No. 5. I take it amendment No. 4 is moved.
We have already discussed amendment No. 4. We may have a case that could best be discussed in conjunction with the amendment in the name of Deputy John O'Connell, who was seeking an amendment more or less on the same lines as ours. We consented and the House agreed to discuss them together and the amendment stands now to be decided on. The House gave us permission to take the two amendments together on the understanding that both would be discussed together. It would not be right at this stage to open discussion on the amendment. The arguments are the same. I am sure the Minister's arguments are the same. We on this side of the House are still convinced that the sections named in our amendment No. 4, namely sections 2, 3, 11, 12, 18, 19 and 20, are part of the Act that should remain in force for a minimum period.
I will have to put my arguments after the Deputy's.
The Chair has already advised the Deputy he may move the amendment. It may not be discussed.
I move amendment No. 4:
In page 14, between lines 45 and 46, to insert a new subsection as follows:
"(3) Sections 2, 3, 11, 12, 18, 19 and 20 of this Act shall remain in force for a period of 12 months from the date of coming into operation of this Act."
Perhaps the Minister has had a change of mind since we discussed it initially. Has he?
I am afraid not.
There is a habit of silence on the scene.
Tá
- Allen, Lorcan.
- Andrews, David.
- Barrett, Sylvester.
- Blaney, Neil T.
- Brady, Philip A.
- Brennan, Joseph.
- Carter, Frank.
- Collins, Gerard.
- Connolly, Gerard.
- Crinion, Brendan.
- Cronin, Jerry.
- Crowley, Flor.
- Cunningham, Liam.
- Daly, Brendan.
- Davern, Noel.
- Dowling, Joe.
- Fahey, Jackie.
- Farrell, Joseph.
- Faulkner, Pádraig.
- Fitzgerald, Gene.
- Fitzpatrick, Tom (Dublin Central).
- French, Seán.
- Gallagher, Denis.
- Geoghegan-Quinn, Máire.
- Gibbons, James.
- Gogan, Richard P.
- Healy, Augustine A.
- Hussey, Thomas.
- Breslin, Cormac.
- Briscoe, Ben.
- Brugha, Ruairí.
- Burke, Raphael P.
- Callanan, John.
- Calleary, Seán.
- Kenneally, William.
- Kitt, Michael P.
- Lalor, Patrick J.
- Lynch, Celia.
- Lynch, Jack.
- McEllistrim, Thomas.
- MacSharry, Ray.
- Meaney, Tom.
- Molloy, Robert.
- Moore, Seán.
- Murphy, Ciarán.
- Nolan, Thomas.
- Noonan, Michael.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Malley, Desmond.
- Power, Patrick.
- Smith, Patrick.
- Tunney, Jim.
- Walsh, Seán.
- Wilson, John P.
- Wyse, Pearse.
Níl
- Barry, Peter.
- Barry, Richard.
- Begley, Michael.
- Belton, Luke.
- Belton, Paddy.
- Bermingham, Joseph.
- Bruton, John.
- Burke, Dick.
- Burke, Joan T.
- Burke, Liam.
- Byrne, Hugh.
- Clinton, Mark A.
- Cluskey, Frank.
- Collins, Edward.
- Conlan, John F.
- Coogan, Fintan.
- Cooney, Patrick M.
- Corish, Brendan.
- Cosgrave, Liam.
- Costello, Declan.
- Creed, Donal.
- Crotty, Kieran.
- Cruise-O'Brien, Conor.
- Desmond, Barry.
- Desmond, Eileen.
- Dockrell, Henry P.
- Dockrell, Maurice.
- Donegan, Patrick S.
- Donnellan, John.
- Enright, Thomas.
- Esmonde, John G.
- Finn, Martin.
- FitzGerald, Garret.
- Fitzpatrick, Tom (Cavan).
- Flanagan, Oliver J.
- Gilhawley, Eugene.
- Governey, Desmond.
- Griffin, Brendan.
- Harte, Patrick D.
- Hegarty, Patrick.
- Hogan O'Higgins, Brigid.
- Jones, Denis F.
- Kelly, John.
- Kenny, Enda.
- Kyne, Thomas A.
- L'Estrange, Gerald.
- Lynch, Gerard.
- McDonald, Charles B.
- McLaughlin, Joseph.
- McMahon, Larry.
- Murphy, Michael P.
- O'Brien, Fergus.
- O'Donnell, Tom.
- O'Leary, Michael.
- O'Sullivan, John L.
- Pattison, Seamus.
- Ryan, John J.
- Ryan, Richie.
- Staunton, Myles.
- Taylor, Frank.
- Timmins, Godfrey.
- Tully, James.
- White, James.
I move amendment No. 5:
In page 14, between lines 45 and 46, to insert a new subsection as follows:
"(3) The Minister for Justice shall not make an order under subsection (2) of this section until either (a) the Committee of Ministers of the Council of Europe have made a decision under article 32 of the European Convention on Human Rights on the Report of the European Commission of Human Rights on the case of Ireland against the United Kingdom brought in December 1971, or (b) that case has been decided by the European Court of Human Rights."
I believe that this amendment speaks for itself but I suppose the Minister, who during the course of the debate was not even prepared to accept the advice of his own Coalition colleagues that there should be a 12-month time limit on the operations of this Bill in the first instance, is extremely unlikely to accept my amendment at this stage.
This amendment is not likely to appeal to the Minister because of the views expressed in this House in relation to the case brought to Strasbourg. The Minister is on record at column 579, Volume 287, of the Official Report of 28th January, 1976, as saying that this happened five years ago, compensation has been paid and we should not go overboard about it. At column 540 of the same volume in answer to Deputy O'Kennedy he stated that the acts complained of occurred over five years ago, people had been compensated in the ordinary course and the Convention was the reason compensation had been paid and redress got. The Convention has been found adequate to provide protection.
In my view, it is very wrong for the Minister to regard compensation paid to victims of the most vicious assaults as an adequate answer. The Strasbourg case was not brought to get compensation for those people, but to ensure that the United Kingdom would secure for everyone in Northern Ireland the rights and freedoms guaranteed to them by the Convention and to make sure that the responsibilities the United Kingdom undertook when she ratified the Convention, would be observed by her in Northern Ireland. Compensation had nothing to do with the case and it is a sad reflection that the Minister for Justice should regard the payment of money as an answer to anyone who makes substantiated allegations against the security forces.
As I pointed out on the last occasion we discussed this Bill, of all the cases referred to the Director of Public Prosecutions over a certain period of time scarcely one person who was a member of the RUC or the British Army has been successfully prosecuted. Surely this is the correct sanction for a Government allegedly interested in human rights to apply, namely, the suspension or removal from the police force of persons against whom these allegations have been made and proved in the courts, if one is to gauge by the large sums of money paid in individual cases. Instead, the United Kingdom Government are seeking to buy themselves out of trouble by agreed awards of damages. This Government seem to be prepared to go along with that proposition.
When speaking on section 4 I drew the Minister's attention to the fact that the section was a vivid example of how much the operations of this Bill, if enacted, would depend on the integrity and bona fides of the RUC and the Northern Ireland Special Branch. On that occasion I instanced that one of the differences between the Minister and myself was that he was prepared to accept the bona fides of the RUC and the Northern Ireland Special Branch until the contrary had been proved, whereas I would change the onus and accept mala fides until the contrary had been proved. Whichever of us is right, I believe that ultimately it is on their integrity and bona fides rather than on the bona fides of our judges or legal advisers that the honest operation of this Bill depends, and I believe that this will be contained in the report of the Strasbourg case.
We now know that the Government have that report because the Government Information Services issued a statement to that effect. The existence or otherwise of the report was ruled out of order by the Ceann Comhairle on the advice of the Department of the Taoiseach when the question was asked by our leader, Deputy J. Lynch. We must be quite clear about what the report may prove or disprove. Allegations of the most serious nature have been made against the RUC and the Northern Ireland Special Branch. We know from various Press releases issued by the European Commission that a great number of witnesses, both Irish and English, have been heard by the Commission. In that report, there must be a finding as to whether these allegations are substantiated or not. If they are not, it may well be that the Minister is right to accept the bona fides of the RUC and the Northern Ireland Special Branch. If they are substantiated and if these people are guilty of torture or inhuman or degrading treatment, and if the allegations about people who have received large sums of money from the United Kingdom Government in settlement of civil claims have been found by the Commission to be substantiated, and if it appears that people who perpetrated these physical abuses on people in their custody are still holding office and rank in the police force in Northern Ireland, then my proposition is correct and it is the mala fides of these people we should accept until the contrary is proved.
The Minister and Government know the answer because they have the report and must know what is in it. I fully understand and accept that the Government are not entitled to publish this report at the moment. In the context of this Bill, I believe the public are entitled to know the findings of the Commission before this Bill comes into operation. Probably the only way the people will know is for the Government to take a decision to send the report to the European Court of Human Rights. When the case has been referred by the Government to the court, as distinct from the Committee of Ministers, the report may be published.
We have heard of the Strasbourg case at considerable length throughout the course of this debate. It has been brought into the debate on many sections. It is somewhat ironic to recall that it took the most insistent prodding by the Opposition spokesman on Foreign Affairs, Deputy R. Ryan, in 1971, to get some urgency about laying the complaint at all.
That is nonsense. That is totally untrue.
The Deputy may not attribute that the Minister told an untruth.
The Minister should be ashamed to say that. We did not need Deputy R. Ryan or anyone else to remind us of our responsibility.
Order, please. Deputy O'Kennedy will be afforded the opportunity——
I was present when the complaint was lodged. I find it very reprehensible for a Minister to say that.
The Deputy may not attribute to the Minister that he told a blatant untruth.
On a point of order, did Deputy R. Ryan make his request during a debate or in a pub?
That is not a point of order. Let us be serious.
I sat and listened to this theme for many weeks, without interrupting. Now, as soon as one unpalatable——
The Minister is telling lies.
The word "lie" or "lies" should not be used.
——truth is mentioned, I am met with indignation. As I said, and the records of this House will show, as a result of the consistent prodding by the then spokesman on Foreign Affairs this complaint was laid.
It was not.
Give the reference.
The point is that, as far as this Bill is concerned, we are looking to the future. We are looking to the future to use this Bill to end the scandal of the fugitive offender. I have dealt at great length, on the various sections, with the guarantees, the protections and the assurances available to me administratively and by virtue of the sovereignty of this Parliament to ensure that the apprehensions raised by Deputies on the other side of the House will not be realised. I am satisfied that the protective measures which are available will be adequate to ensure that the like complained about to Strasbourg will never happen again. It is relevant to point out—and we cannot close our eyes to this fact—that we are five years on. Part of the trouble of this nation is that we can never forget our wrongs. We have to debate this Bill in the context of 1976 and in the context of the times ahead to ensure that this scandal of the fugitive offender is removed with all the ill consequences that scandal brings for this island.
I should not like to be quoted as saying that the mere payment of compensation is adequate recompense. I made that statement in the context of saying we must have a balanced view on this point. From the point of view of an injured party, payment of adequate and, indeed, substantial compensation is a very real gesture. He might not thank you for a finding by a European court. He might regard an award of damages as being much more practical. I would not denigrate it or run down the discharge of this obligation in the way Deputy Collins has done.
I do not think there is any point to be served in accepting this amendment. I give Deputy Collins no marks for guessing that might be my view. It is my view very firmly. This Bill has to be passed into law and has to be operated as soon as possible. We have a duty to ensure that this jurisdiction is not availed of as a sanctuary by people who are allegedly guilty of the most heinous crimes against fellow-Irishmen in the other part of this island. It is no answer to say the security forces in that other part may be suspect, or were suspect, or were guilty in the past. That is not an answer justifying refusing co-operation now and in the future. We have to ensure that co-operation is with forces whose bona fides henceforth is without suspicion and without cloud.
I am satisfied that the measures and protections and assurances available to me, and available by virtue of the machinery of this Bill, will be adequate to protect persons from an excess of process by any of these forces. Quite frankly, I do not anticipate that any such will occur, but should any such occur, there is ample means to deal with them and ample means to prevent them. I do not think there is any need for this amendment. It is a contentious amendment and, in the delicate times we are living in at the moment, it is an ill-judged amendment.
The Minister talked about being contentious. In his opening words he was much more contentious than he was entitled to be.
The Deputy is overly sensitive.
Not at all. It is the usual Government ploy to say we are sensitive to this kind of thing. Far from it. The law and order boys think we could not be trusted, but I regard that approach as an insult to our integrity. Shortly we will be in a position to prove we are more reliable than the Government who make such a virtue of it.
I want to put some historic facts on the record. The Minister for Finance has always been known to be a person who gave tongue fairly freely and without much responsibility. If one heeded what the Minister for Finance said in Opposition or in Government, one would find oneself chasing unsubstantiated rumours.
Here and in Slattery's.
I can assure the Minister that we never attended to or were influenced by the views of the Minister for Finance. If he came to a similar conclusion in some areas to the conclusion we had come to, that was a coincidence.
I always pay attention to the views of the Opposition.
The Minister should have heard the Minister for Posts and Telegraphs today.
The Minister does not pay attention to some of his Coalition colleagues even when they will not vote for him.
If the Minister was paying more attention to us he would accept this amendment.
The Minister should pay attention to the Tánaiste. He intends to get rid of this capitalistic society, and you lot with it, as quickly as possible. Then you will be in some trouble. In relation to this complaint which is relevant to our amendment, the Government at the time took the decision on the basis of information available to them after some painstaking research. It takes a considerable time to get the necessary evidence, even the basic evidence, to launch a complaint as serious and as wide-ranging as that was. It may be easy for a spokesman for the Opposition to give tongue to his views here or elsewhere, but the Government have the responsibility to ensure that what they present to an international Commission to which we have always paid the greatest attention and respect is well-founded and well-documented.
Fianna Fáil did just that. There can be no suggestion that there was any lack of enthusiasm and determination in the way it was approached. The serious attention being given to it in Strasbourg, the satisfaction many people felt not just in Ireland or England but elsewhere, vindicated the step taken by the Fianna Fáil Government. It has been proved that they diligently inquired and conscientiously presented the complaint on behalf of people who had not got the authority of this State to back them, and many others who were tortured according to the views presented to us. We gave the weight of the Government's support to those people before the Commission on Human Rights. We have been vindicated in so doing, whatever the outcome. I do not imagine the Government who inherited that had the same enthusiasm for pursuing it as we had for launching it.
I want to put another matter on record. During our time in Government—and I am sure during this Government's time in office—there were representations and persuasions and pressures to drop the case. In the interests of natural justice, and in the interests of bringing our people together in the true sense of what our rights and obligations were, not blinding ourselves to the reality of torture, Fianna Fáil resisted those pressures. Be it said to the eternal credit of our leader, he resisted them very effectively and firmly. Pressures were applied, but to no avail. It comes badly from the Minister to imply that the previous Government at any stage had to be goaded— goaded is not too strong a word to use about the Minister for Finance——
He used the word "prodded".
A very appropriate weapon for the Minister for Finance because one imagines him getting particular enjoyment with nothing more lethal than a little needle. He seems to enjoy the needle very much. He probably was prodding then as he is now. At times one would like to see him taking something a little more manly into his hands and showing a little more vigour in his style than the personal prodding to which he seems to be given.
Fianna Fáil would probably recommend a pike.
I was present when this complaint was lodged, not that my presence was necessary but I was attending a meeting of the Committee of Ministers of the Council of Europe when it was lodged with the Secretary General of the Council of Europe. I can assure the Minister that it was presented in a most formal and responsible fashion. The response to it from the Council of Europe was equally formal and responsible. There was no attempt to embarrass anybody, rather that it would be simply presented and the process of the commission would get under way. For all of this the previous Government were responsible.
The Minister said he is satisfied that what was complained about at Strasbourg will never happen again but, as I said previously, the Minister is too easily satisfied. I am not saying that nothing has been learned anywhere in the last five years although, unfortunately, there is some evidence still in the North of Ireland—even as late as today—that very little has been learned. We all want to see a situation arising where the representatives of the minority in the North can give their full support to a representative police force, and we want to be able to back it with support from this end. We want to see that day as zealously as anybody on the other side wants it because we recognise that it is only through a properly constituted police force, with the support and respect of the community they serve, and protect, that we can have the type of peace and security that is needed. I have used the words, "peace and security" advisedly, as distinct from the much hackneyed phrase "law and order" that has been abused in both ends of the country.
One cannot have peace and security without law and order.
One can have both but the Minister should recognise that the phrase, "law and order", has been used everywhere from Nazi Germany to Alabama in the name of vindicating certain privileged positions over unprivileged positions. On many occasions it has been the excuse for some terrible deeds done in the name of humanity. I am not saying that the Government have any such intention but they should be careful in the public expression of their zeal for law and order that they do not become over zealous to the point that they forget that the law serves the public and the order can only be guaranteed as long as the public are fully and totally responsive to that order.
I cannot see why "peace and security" in this day and age might not be a more relevant and appropriate term to achieve what we want than the hackneyed phrase, "law and order". The end result we all want to achieve is the same and we only differ in the manner we present our intention. The Minister asked us if things had changed since Strasbourg five years ago. Of course, they have changed but not to such a point within the police structures in Northern Ireland. I recognise that the vast majority of the police in Northern Ireland are anxious to carry out their business as a police force but the reality is that within the last couple of years there have been scandals associated with them, weapons were taken from the UDR and losses experienced in different areas. There were grounds for concern because of the association which appears to exist between the forces of law and order in that part of our country and some para-militaries. Para-military is another euphemism we could do well to rid ourselves of. An organisation is either lawful or unlawful; its aims are either to be abhorred or not. They are either a group of murderers or not but para-military in the way it is being used is a little bit of special pleading. Anything done to create violence, to kill or to maim, should not in any way be lessened by being perpetuated by "para-militaries".
There are such associations and there is reason, minimal though it may be, to have concern about such associations. For instance, there is no reason to be concerned about associations between our Garda and the IRA. We wish that one could have the same confidence in relation to the police force in Northern Ireland and the UDA, UVF, Red Hand or the Freedom Fighters, but the Minister must recognise that that is not so. For the sake of the police authority in Northern Ireland, the majority of whom we respect, we should do as is suggested in the amendment.
I am conscious of the fact that the chairman of the police federation there—I greatly support his call—has been presenting the role of the RUC as being that of a civilian police force. He expressed the view that he would like to see eventually an unarmed police force. This is an encouraging sign, and I feel sure that the vast majority of the serving members of the RUC feel that way, but the fact that the vast majority of them may feel that way does not allow us ignore the fact that there are still grounds for apprehension.
In our amendment we are seeking to clear the air. We do not wish to feel vindictive about what may have happened; we have no right to feel vindictive but those who have been injured have such a right. Those who have been tortured understandably feel vindictive. It is to be hoped that in the course of time they, in generosity, will learn to forgive, but they have cause to be apprehensive. The Minister is being a little less than realistic in asking them to forget all that because it occurred five years ago. If those who were tortured respected the force that tortured them now we would not have to press this amendment. We are not talking about how we feel; we are talking about how the people in the North feel. If the people of parts of Derry or Belfast feel this distrust it is not for the Minister to tell us that things are changed. It is those people who have to be won around to respect the police force there.
The only way to convince those people is by a little honesty. We must be generous and understanding but we must also be honest. I do not wish to see us vindicating ourselves over anybody else but I want to see us approach things realistically and honestly. Until such time as we know to what extent those charges were well founded we cannot have that honesty on the part of everybody. It is sometimes suggested that we should forget all of this. The Minister went along that line and I would not like it to be thought that we are less forgiving than the Minister or members of the Government.
We all want to be forgiving and to forget as much as we can but that does not rid us of our responsibility. Throughout the debate on this Bill the Minister has indicated that he relies on guarantees given to him, that if they do not operate the Bill will not operate and that if the first two, three or four persons are badly treated or are beaten nobody else will go up to the North. That is fine but, as we said, that should not arise. If we have confidence in these people we should not have doubts about the first two, three or four people. We should be able to say that our police can confidently and totally co-operate with the police in the North of Ireland without any reservations. The Minister has no reservations.
Is the Minister completely happy with the SAS?
A few days ago ITV or UTV did a long programme on the assassination of the unfortunate Kenneth Lennon. In the United Kingdom itself there are many people who have grave reservations about the conduct of the police in that case. The reservations may or may not be well founded but they exist. There have been reservations about special police activities, about assassination squads and so on. Yet, the Minister has no reservations; I should like to be like that. The reality of the situation is that there are serious reasons for reservations. We want to dispel them. It is not a question of the South being vindicated over the North of Ireland; in fact, the South was not really involved other than the Government taking up the case on behalf of people in the North. It is not a question of the South asserting itself over the North, it is simply a case of disclosing the full facts so that we may learn from them. It will enable those who have been wrong to purge their wrong-doing——
The Chair has been listening to the Deputy with regard to the amendment. It appears to the Chair that the amendment is concerned with a date with regard to operation——
The reason for the date must be explained.
It is dealing with the date and the amendment should be argued around that.
The amendment states:
In page 14, between lines 45 and 46, to insert a new subsection as follows:
"(3) The Minister for Justice shall not make an order under subsection (2) of this section until either (a) the Committee of Ministers of the Council of Europe have made a decision under article 32 of the European Convention on Human Rights on the Report of the European Commission of Human Rights on the case of Ireland against the United Kingdom brought in December, 1971, or (b) that case has been decided by the European Court of Human Rights."
The Minister said we should forget things but I do not think it is reasonable to say to me that I cannot suggest what is involved in these reports and complaints in relation to the amendment. If I were to be so limited I would simply talk in terms of time. I am not concerned with the tactics of time; I am concerned with fundamental, substantial issues.
The Minister has told us he is concerned with the scandal of the fugitive offenders. It is a scandal and one we are anxious to heal. The Minister wants to heal it his way and we thought our way was more effective. There are other scandals and you do not attack one by ignoring the other. The reality is that the scandal of the conduct of some members of the RUC and the UDR is still there. We want to see this publicly disclosed and we want the position publicly determined. When that is done, perhaps everyone can learn from the scandals. Perhaps those who are charged with responsibilities in relation to the police in Northern Ireland can take certain steps and the majority of the police who are not involved in the scandal will have their names cleared. At the moment, because of association their names are not cleared. If there were two or three or even a small minority in our police acting irresponsibly it would not be sufficient to undermine the good name of the Garda Síochána because as a force they have total respect. We are not talking about individuals; we are talking about a complete force. While that cancer may be there the problem still exists.
In this Bill we are being asked to involve ourselves with the police authority in Northern Ireland, to surrender people into the custody of police in Northern Ireland, a custody over which we have no control and where we cannot exercise any responsibility or give any guarantees. I do not see why we cannot wait until we know whether our complaints against that police force, or elements within it, are vindicated. When we know that fully and publicly, we can begin to consider how far we can go in this Bill. When we know that and when the public in Northern Ireland know it, they can begin to reconsider how much support they can give to the police in the North. In the final analysis it is not our response to the RUC that is important, any more than the response of people in the North to the Garda Síochána is significant. What is important and significant will be the response in the North, particularly that section that is known as the minority, to the police. The Minister must recognise that until such time as all the communities in the North, particularly those with a nationalist background, can give their full support to a police force that deserve it we will not have an end to this terrible problem. Dealing with the symptoms, as we are doing in this Bill, will not eradicate the cause.
I do not see why the Minister can so easily say that we are five years on and that all has changed. I wish it had. Perhaps a fair amount is changed but to say all is changed is naive. Telling it to us is one thing but telling it to those people who are entitled to look to a police force for respect and protection is another matter. That is the great worry.
How many of the minority in the North have been pressurised, forced in more ways than one to turn to the IRA for protection when it was denied to them by some of those charged with maintaining law and order?
It is a fallacy to give any credence to the idea that the IRA give protection to anybody.
Do not twist this.
The Deputy should be very careful with his choice of words.
I will repeat what I said: I wonder how many people in the North have been forced, threatened, persuaded to turn to the IRA for protection? I did not say the IRA give protection.
Even to suggest it gives them credence.
We are getting away from the scope of the amendment.
It is terrible that they are forced to turn to people whose only intention is violence.
This is beyond the scope of the amendment.
If the Minister can tell me that nobody in Northern Ireland ever felt that the RUC would not protect them or that nobody has ever turned to the IRA for protection, he is living in cloud-cuckooland, because it is otherwise. We need to win support for the police force in Northern Ireland and the only way we can do it is by honestly making it public. For the first time the matter has been publicly disclosed to the world. The Minister said that those who have been hurt or offended against can be compensated and that then the co-operation we have been asked for can be given. Please do not ask us to do it with blinkers on.
I cannot quote the Minister verbatim because the unrevised Official Report is not yet available, but the Minister stated here today that we are five years on, that the trouble with this nation is that we never forgive and forget. This appears to me to be the first chink in what appears to be the Government's intention of dealing with the torture case against Britain and bringing it to its conclusion. The Minister obviously shares the view widely held that a number of Ministers in this Government were prepared to abandon the Ireland versus Great Britain case——
Nonsense.
It is a widely held view——
Erroneous.
——that two members of the Government are willing to forgive and forget——
Absolutely wrong.
——and to withdraw it altogether.
Absolutely wrong— no truth whatever in it.
We can see how this gained currency because the Minister himself is of the view that we are five years on and that the trouble with the nation is we do not forgive and forget. Is it any wonder that a number of Ministers wanted to abandon our case against the UK having regard to the views expressed by the Minister here this afternoon? Deputy Collins quoted him at length from a statement of the nature of that made here tonight—let us forgive and forget. It appears to us that what the Minister means is that the Irish Government will hold on to the report of the Court of Human Rights in the torture case, which we know they have. There is speculation that the decision contained in that report vindicates the decision of the then Irish Government to take the action they took against the UK, and now we are led to believe the present Government are prepared to accept that the matter has been going on for some five years, that the individuals concerned in the cases brought before the court were compensated, and the corollary of what the Minister has said is "Compensate and be damned —compensate them, give them money and let us get on with this Bill".
That, in essence, would appear to be what the Minister has in mind and we on this side, as well as many others, have come to the conclusion that this amendment is vital because we believe that the Bill, and section 22 in particular, is another piece of Government window dressing to present the law and order image to the people. Law and order must be supported from this Chamber and the performance we saw here this evening of the leader of law and order——
The Deputy must not get away from the amendment.
We saw how the institution known as Dáil Éireann was insulted——
This is extraneous. We are dealing with an amendment.
The reason why we want to have this amendment accepted by the Government is to ensure that whatever judgments may be made in the context of the operation or otherwise of the Act, should be in the context of the outcome of the torture trial. It is a totally reasonable proposition which any reasonable person would accept on the basis that when this Bill was to be introduced in the Seanad many months ago we were told by the Minister in the Dáil that it was being introduced in the Seanad because it was a matter of extreme urgency that it be enacted.
All we are asking the Minister to do is to send the report of the torture case to the European Court of Human Rights. It should be an easy matter for the Government to do that unless our suspicions are well founded that they will continue to stall the publication of the report in the context of "Let us forgive and forget and let us compensate those badly done by" by the so called forces of law and order, with whom the Minister proposes to co-operate through the operation of this Bill.
I am sure the Deputy appreciates that all we are concerned with is the date of the commencement of the operation of the Act.
To come back to the point made by Deputy O'Kennedy, the amendment deals specifically with the coming into operation of the Bill and the postponement of the publication of the report on the torture case. We have asked that the Minister shall not make an order under subsection (2) until
either (a) the Committee of Ministers of the Council of Europe have made a decision under article 32 of the European Convention on Human Rights on the Report of the European Commission of Human Rights on the case of Ireland against the United Kingdom brought in December, 1971, or (b) that case has been decided by the European Court of Human Rights."
What we are asking is that the Bill go into legislative suspension, as it were, until such time as the conditions sought by Deputy Collins's amendment actually arise. There is a time element in it and that time element depends on when the conditions sought are accepted. If, however, the Minister finds the amendment acceptable, then the Bill goes into the legislative Limbo.
Deputy O'Kennedy quite properly referred to the people from whom the Minister will have certain guarantees, the RUC and the British Army. Let us take the British Army first. They operate in the north-eastern part of the country. That cannot be denied by the Minister. We were told recently that certain members of the British Army were issued with Press passes. There is the possibility of these individuals actually appearing in this part of the country. Is that the kind of army with which we want to co-operate?
The Chair would suggest that we are now moving away from the date of commencement into discussing other matters.
On the basis that the date of commencement is sought in the terms set out——
Under two headings.
Under two headings. It is not unreasonable that we should argue the terms.
The terms and reasons must surely be relevant to the time limit. They have to be. Otherwise we are wasting our time.
I am sure the Deputy will agree that quite a number of these matters have already been discussed on other sections.
But not the torture trial because we were not allowed to discuss that. We were ruled out of order by the Chair and we have had no opportunity of discussing it until this amendment came up and the Chair could no longer rule the torture case out. We are entitled to make our case as to why we want a time limit brought in under this section.
I have already dealt with the British Army—peripherally, no doubt. I want now to deal with the Minister's trust in the RUC in the context of the Garda Síochána. Over the years the latter have had 100 per cent co-operation from the people in the Twenty-six Counties. There is no question about that. They deserve that trust because those constituting the Garda Síochána are men of integrity. They have never been found wanting in the service of this nation. Measure that particular standard against the standard where the suggestion at the moment is that the present Inspector General, or whatever his title is, is being removed because of political pressure. Again, the RUC do not have 100 per cent support of the population of that part of this island they are charged with securing for the time being. They do not have the support so necessary and fundamental to any law enforcement agency. This is the agency the Minister for Justice of the Republic is prepared to consort with. We reject this absolutely and we will continue to do so.
As the Leas-Cheann Comhairle has properly said, many of the arguments have already been made and he is no doubt wondering when we will cease repeating them. These arguments bear repetition. They need to be repeated over and over again if only to convince the Minister that Deputy Collins's amendment is well worth while. We have argued our case in the light of Ireland v. the United Kingdom, on the one hand, and also from the point of view of the need to give guarantees, probably outside the Constitution, in the context of this Bill. We have argued that the European Convention on Human Rights should in the last analysis be the place where an individual or individuals might seek redress.
This amendment is founded on justice. To argue that we are trying to give shelter or provide shelter for violent men is unfair and unworthy. The argument is spurious and such motives should not be attributed to us because nothing could be further from the truth. What we want to enshrine in our legislation is a just concept of what the law should be. We do not want to give succour to or help people who have debased the coinage of the causes they allegedly represent.
I have not heard anything in the last two speeches to convince me that there is any need to accept this amendment. I am well satisfied that the procedures devised and the inherent guarantees which will be given to ensure there will be no abuse are adequate to protect our citizens or others involved in the procedures prescribed.
The Minister dismisses the amendment by saying all this happened five years ago and it is about time to forget it; compensation has been paid and let us not go overboard about it. Whether or not the Minister has a short memory he should recognise the weakness in his own argument. Compensation is not everything. The Strasbourg case was not brought to get compensation. It was brought to secure for everybody in Northern Ireland certain rights and freedoms guaranteed to them under the convention and to make sure that the undertakings given by the United Kingdom when she ratified this convention would be observed by her in Northern Ireland. The Minister completely misrepresents, perhaps deliberately, the situation when he says compensation is everything.
I never said compensation was everything.
That is what the Minister implied.
The Minister said compensation was paid and, because it was paid, he is dismissing the whole matter. He wants to forget it. Compensation had nothing to do with the case. This torture case was not brought for compensation. It is a frightening reflection that the Government and the Minister for Justice should regard the payment of compensation as a total answer to anyone who makes substantive allegations against the security forces. This was a case involving torture, whether we like it or not. It was a case involving assault and inhuman treatment. The Minister, no matter how he tries to dismiss the importance of this amendment, has during the course of his contribution this evening said that he accepts the bona fides of the RUC and the Special Branch. I am sorry I cannot accept the same bona fides of the RUC and the Special Branch.
The Deputy should read the record.
If I am wrong, will the Minister tell me if he accepts the bona fides of the RUC and the Special Branch?
I have an open mind.
This Bill can only operate successfully if the people in the Republic can depend on the integrity of the RUC and the Special Branch. Unless we are 100 per cent sure of the integrity of these people we are going the wrong way about it. I am satisfied that many people are anxiously awaiting to see what is in the report and to know what the findings are. We are not asking for too much. We are only asking that this Bill be put "on ice" for the short period which must elapse before the Government can publicly say what is in the report.
There is one thing I want to say. The Opposition are worried that in the event of the report making findings of ill-treatment and worse against the RUC and the other forces in Northern Ireland that this would be a matter of apprehension for us in regard to the operation of this Bill. I want to say, without prejudice to what this report may find in this regard, that I am satisfied that no citizen or a person resident in this island, who may be involved with the procedure of this Bill, has any grounds for fear from those forces of any conduct or treatment that can come under the category of ill-treatment or torture. I am satisfied that any such fears are misplaced and that there is no need for them. My satisfaction is based on the knowledge that the sanction to ensure that state of affairs is the sovereignty of this Parliament and our ability to cease operating this particular measure. That is the sanction to ensure that there will be no ill-treatment of any persons affected by this legislation. I am satisfied that that sovereignty will be respected by the other jurisdiction and that it will never have to be called into force.
Will the Minister not agree that it appears that many of the persons who perpetrated the physical abuse on persons in their custody, who were accused of torture and of inhuman and degrading treatment, are still holding office in the police force in Northern Ireland?
The Minister has an open mind about them.
Has the Minister an open mind about that?
I have no information.
Is the Minister satisfied that they are no longer in the police force in Northern Ireland?
If we were to debate those things we would effectively be debating something which we are not entitled to.
This is why we want to see the report published.
Until such time as we can debate the matter would the Minister please hold this Bill over?
There is no need for the apprehension expressed.
The people who did the torturing are still there and the Minister is happy to accept this.
I am not saying that. All I am saying is that no citizen need have any apprehension for his personal safety under this Bill.
The Minister is satisfied because of the sanction which we as a sovereign Parliament can exercise. He knows that is nonsense because we cannot exercise any sanction in respect of the people Deputy Collins is talking about. Let us not get an exaggerated notion of the effect of our sovereignty in so far as it relates to the control of the police in Northern Ireland. We have another purpose in this amendment. We want to ensure, so far as we can, that the Government pursue this report to the Court of Human Rights. We want to be reasonably sure that this will happen. Our amendment would mean that until such time as the Government had done that this Bill could not come into force. We have, because the Minister is so easily satisfied, grounds for apprehension about the intention of the Government. We are living in total ignorance of what they may do, what they have read or what reports are available to them. We would like to be sure that the Government will pursue this to the Court of Human Rights so that all of us can be satisfied, as the Minister is satisfied.
In relation to the second point the Minister, in a revealing response to Deputy Collins when he was asked about the RUC at the moment, said that he had an open mind. It is the first time that he disclosed that he has an open mind. Whatever that means, he is satisfied. If the Minister were to be asked that question in relation to the Garda Síochána he could not, and would not, reply that he had an open mind. He would properly say that he is perfectly satisfied. The Minister disclosed the weakness of his position when he said, in reply to Deputy Collins, in relation to the RUC, that he has an open mind. It is because we think that this is no case for an open mind in their interest or in ours that we want to see this amendment accepted. If the Minister is satisfied with his open mind, being realistic and not vindictive, may I say we are not so satisfied and could not be?
This proves our case from the beginning to the end of this Bill. The Minister's reply to Deputy Collins about his satisfaction with regard to the integrity of the RUC was: "I have an open mind." This has vindicated the opposition of the Fianna Fáil Party to this Bill from section 1 to section 22. Our stand on the various sections has proved to be correct in the light of the most extraordinary reply the Minister has just given to Deputy Collins. This reply was developed by Deputy O'Kennedy and it brings me to my feet to copper-fasten what Deputy O'Kennedy said.
The Minister has an open mind about the RUC and by definition has an open mind about the forces which assist them in the discharge of their duties, mainly the British Army. The RUC and the British Army are concomitants as far as the security of that part of the island is concerned. They must be seen working together so the operability of this Bill is seen to depend on the Minister's open mind. Before the Minister brings this Bill into law he must be certain, he must be without doubt, in relation to the people he is dealing with on the other side of this artificial Border, which is the absolute cause of the tragedies which exist in this island at present and, in the future until this Border goes.
Does the Deputy agree that it cannot go without the consent of the majority in Northern Ireland?
The Minister is a great man for standing up in this House and boasting that he never interrupts anybody else during the course of making a speech.
There is significant silence in relation to that question.
He is getting practice.
The Minister says he has an open mind in relation to the RUC and the British Army. He should not take us off on another tangent. That, as the Minister, in his own inimitable words said, is a matter for another day's discussion.
Let us get back to the amendment.
He was out of order.
The Minister's open-minded reply, will become as infamous as the Bill before us. The Minister in reply to Deputy Collins vindicated Deputy Collins's stand on this Bill from beginning to end. It is a tribute to Deputy Collins that when the Bill has almost gone through the whole legislative process he finally elicits that the Minister has an open mind as regards the people who will be dealing with the implementation of this Bill on the far side of the Border. It is a tribute to Deputy Collins that he could finally prove that he and the other members of the Fianna Fáil Parliamentary Party who have been arguing on this side of the House have been right all along.
Lest there be any misinterpretation of what I said regarding Deputy O'Kennedy's comparison, I have not an open mind about the Garda Síochána because I am in a position to have complete knowledge of the Garda Síochána. I cannot, nor can anybody in this jurisdiction, have similar knowledge to form a definitive opinion about a police force in another jurisdiction. Consequently, I cannot be definitive and must have an open mind about something which I cannot know intimately. In the same way, I still have an open mind about the Opposition in regard to certain aspects of this Bill.
It ill becomes the Minister to try that approach at this stage. I say that sincerely. Last week we had one of the Minister's colleagues, The Minister for Defence, Deputy Donegan, at Question Time, openly accusing me and my party of dragging our feet on this Bill. That is wrong; it is not so. No matter how much the Minister quibbles now and no matter how uncomfortable he feels——
Not a bit.
——as well he should—if he has an open mind now about the RUC, the B Specials and the SAS and all the other groups there, he should realise that the compensation is not what this is all about: this is a torture trial and those who allegedly perpetrated these tortures are still in the forces of law and order in Northern Ireland. We believe that this Bill can only be implemented if the integrity of the RUC, the B Specials, the SAS and all the others can be accepted. I say no, it cannot. It is on their integrity and bona fides rather than on the bona fides of our judges or legal advisers that the honest operation of this Bill will depend.
I understand that the Minister has his viewpoint; we have ours. The Minister holds his view solidly and squarely as we hold ours. There is no purpose in dragging on the debate further—we have not dragged it at all; we have submitted our case to the Minister. We have said that there are serious doubts about the integrity of the RUC and B Specials. The people who brought these organisations into disrepute are still within them. We ask—no more can we do—that this Bill be put "on ice' until such time as everybody in the Republic knows what is in the report. The Minister refuses to accept our amendment and we are asking for a vote on it.
I am satisfied that there is no need for these apprehensions.
We do not accept that; we do not accept that they are all right.
Tá
- Allen, Lorcan.
- Andrews, David.
- Barrett, Sylvester.
- Blaney, Neil T.
- Brady, Philip A.
- Brennan, Joseph.
- Breslin, Cormac.
- Briscoe, Ben.
- Brosnan, Seán.
- Brugha, Ruairí.
- Burke, Raphael P.
- Callanan, John.
- Calleary, Seán.
- Carter, Frank.
- Collins, Gerard.
- Connolly, Gerard.
- Crinion, Brendan.
- Cronin, Jerry.
- Crowley, Flor.
- Cunningham, Liam.
- Daly, Brendan.
- Davern, Noel.
- Dowling, Joe.
- Fahey, Jackie.
- Farrell, Joseph.
- Faulkner, Pádraig.
- Fitzgerald, Gene.
- Fitzpatrick, Tom (Dublin Central).
- French, Seán.
- Gallagher, Denis.
- Geoghegan-Quinn, Máire.
- Gibbons, James.
- Gogan, Richard P.
- Healy, Augustine A.
- Hussey, Thomas.
- Kenneally, William.
- Kitt, Michael P.
- Lalor, Patrick J.
- Lynch, Celia.
- Lynch, Jack.
- McEllistrim, Thomas.
- MacSharry, Ray.
- Meaney, Tom.
- Molloy, Robert.
- Moore, Seán.
- Murphy, Ciarán.
- Nolan, Thomas.
- Noonan, Michael.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Malley, Desmond.
- Power, Patrick.
- Smith, Patrick.
- Tunney, Jim.
- Walsh, Seán.
- Wilson, John P.
- Wyse, Pearse.
Níl
- Barry, Peter.
- Barry, Richard.
- Begley, Michael.
- Belton, Luke.
- Belton, Paddy.
- Bermingham, Joseph.
- Bruton, John.
- Burke, Dick.
- Burke, Joan T.
- Burke, Liam.
- Byrne, Hugh.
- Clinton, Mark A.
- Cluskey, Frank.
- Collins, Edward.
- Conlan, John F.
- Coogan, Fintan.
- Cooney, Patrick M.
- Corish, Brendan.
- Cosgrave, Liam.
- Costello, Declan.
- Creed, Donal.
- Crotty, Kieran.
- Cruise-O'Brien, Conor.
- Desmond, Barry.
- Desmond, Eileen.
- Dockrell, Henry P.
- Dockrell, Maurice.
- Donegan, Patrick S.
- Donnellan, John.
- Enright, Thomas.
- Esmonde, John G.
- Finn, Martin.
- FitzGerald, Garret.
- Fitzpatrick, Tom (Cavan).
- Flanagan, Oliver J.
- Gilhawley, Eugene.
- Governey, Desmond.
- Griffin, Brendan.
- Harte, Patrick D.
- Hegarty, Patrick.
- Hogan O'Higgins, Brigid.
- Jones, Denis F.
- Kelly, John.
- Kenny, Enda.
- Kyne, Thomas A.
- L'Estrange, Gerald.
- Lynch, Gerard.
- McDonald, Charles B.
- McLaughlin, Joseph.
- McMahon, Larry.
- Murphy, Michael P.
- O'Brien, Fergus.
- O'Donnell, Tom.
- O'Leary, Michael.
- O'Sullivan, John L.
- Pattison, Seamus.
- Ryan, John J.
- Ryan, Richie.
- Staunton, Myles.
- Taylor, Frank.
- Timmins, Godfrey.
- Tully, James.
- White, James.
Arising out of section 22 (2) the Minister might at this stage indicate when he will make the order.
At this stage I cannot say when that order would be made. There would be no point in making it until I was satisfied that the machinery to implement the Act was set up and ready to be operated, and because there will be another jurisdiction involved there will have to be discussion on the mechanics of the Act. I anticipate that they would not take very long, and subject to any question of referral of the Act, I would imagine the order could be made within a matter of six to eight weeks. However, I would be pretty well speculating as to that, but there would be no reason why there should be any undue delay in making the order. As I say, there may be the question of referral. That would delay the making of the order anyway.
Could the Minister let us know at this stage the type of administrative machinery he envisages as being necessary for the implementation of the Bill? This is rather a big area, perhaps?
It is a question of the law officers of the State indicating what procedure they would like to see followed for producing to them the documentation on which they would recommend the prosecution or otherwise and saying what form that should take. I can only presume in this, because it is not a matter of law but a question of administration as practised by an independent official. I can only presume at the moment that before the law officer will rule on any specific case he will have to have submitted to him the Garda file.
I am sorry to interrupt the Minister. Perhaps the Minister would like to move to report progress.