When I moved the adjournment I was discussing the Opposition's call for an all-Ireland court as being the best solution for dealing with the fugitive offender. I was pointing out how unreal that call was in the current political context, so unreal as to be in effect a false call to raise question marks about the validity of it and the bona fides of the party making it. I say raise question marks because I accept the Opposition's statements that they agree——
Criminal Law (Jurisdiction) Bill, 1975 [Seanad]: Fifth Stage (Resumed).
Question again proposed: "That the Bill do now pass."
Will Deputies please allow the business of the House to proceed?
It raises question marks but nevertheless I accept the averments from the other side that they want to see the scandal of the fugitive offender ended. I said, opening the Second Stage debate, that those who put forward such a point of view but yet are opposed to what we are proposing in this Bill had a duty to suggest an alternative method. The alternative method suggested was the all-Ireland court. I said, and say again, quite firmly, that to talk of an all-Ireland court and with it presumably some sort of an all-Ireland executive to which it would be responsible, in charge of an all-Ireland police, which would be the force operating under it, is totally unrealistic in the context of contemporary Ireland. It is so totally unrealistic as, I think, to be verging on the ridiculous.
The Law Enforcement Commission, which was a commission of jurists and a technical commission, could not be expected to spell out the political reasons why such an institution would not be feasible in the short term. They contented themselves by saying that it would take some time to set up and they pointed to the need to have a referendum. I believe it would have been outside their remit for that particular body to have given consideration to the different political implications of an all-Ireland court. They were men of realism and they were as well aware as I am, and as anybody in this House must be who faces the question honestly, that there can be no question of an all-Ireland court in the foreseeable future. Of course, an all-Ireland court in the context of which the Opposition speak of it must include all the other things I speak of, some sort of an all-Ireland executive and an all-Ireland police force. Again, we have only to look at the sad state of the Convention in Northern Ireland, and of the short distance the effort towards power-sharing got, to realise how far away we must be from the concept of an all-Ireland court.
We are left then with the solution proposed in this Bill. I again affirm unequivocally here that I consider this to be a good solution and one which, as the Parliamentary Secretary to the Taoiseach pointed out, we will see operated on a wider scale in European countries to deal with the problem of the fugitive terrorist in a a more general context than just on this island. It is novel and it represents a novel departure in a common law country in that it provides for the talking of evidence in criminal trials on commission. That is a novel procedure in our jurisprudence. There is no doubt about that, but it is not an unknown procedure in the jurisprudence of Europe. In fact, it is provided for by a European convention, the Convention on Mutual Aid in Criminal Matters, where provision is made for the taking of evidence in criminal cases on commission, so there is nothing novel or extraordinary about it. It is new in the common law jurisprudence but that is as far as the novelty goes.
The European convention does not provide any right for an accused person to be present at the taking of evidence on commission, but we in this Bill make such provision for an accused person to be present at the taking of evidence on commission. We make provision for him to be present with immunity from all legal process whatsoever, civil or criminal. That is spelt out in this Bill and in the reciprocating measure. It has been put to me that this is an empty right because an accused, in the context in which he will probably be arraigned, will not want to go North even for that purpose and notwithstanding the immunity.
That is something that necessarily must be a matter of speculation, but all we can do is to provide the right for him to go with total immunity. We have provided also the right for him to be represented by his lawyers from this jurisdiction who can attend at the commission and act on his behalf, with or without his presence. They will have full rights of examination and cross-examination of witnesses. We have also provided that the evidence on commission must be and can only be taken in the presence of the trial judges from the other jurisdiction. Those judges have been given rights in this Bill and the reciprocating Act to put any questions they may feel necessary.
I submit to the House that the rights of the accused are fully guaranteed. We will see to it by executive action that these rights will be completely vindicated in due course both in the letter and the spirit. I repeat what I said earlier when the Opposition expressed apprehension about how an accused person, perhaps a notorious person, would fare at the hands of the security forces in the North in whose custody he would be for the purpose of taking evidence on commission. I pointed to the immunity that is given to him by this Bill and that Act and said that unless that immunity is honoured in the spirit and the letter there is this sanction to ensure that if this immunity is not honoured the executive would discontinue the process of extra-territorial trials.
I am quite satisfied that no injustice can be done to an accused person. He will be tried in our courts according to our laws. He will have the benefit of a fair trial as it exists in this jurisdiction. His personal position will not be prejudiced. It is a new procedure to deal with a particular difficulty and it would be impossible to devise a procedure that would leave every single interest involved completely satisfied. People will naturally question a new procedure. There may be apprehensions about it but what we have to think about is whether there is justification for those apprehensions. In my opinion there is not. Because it is a new procedure we will not know who is right until such time as it is in operation. I am satisfied, and I would not propose this Bill to the House if I were not, that when we see this Bill in operation the apprehensions of those on the other side will not be justified.
There was one other topic touched on, principally by Deputy Blaney and to a lesser extent by Deputies Haughey and de Valera, about which I was disturbed. Deputy Blaney was the most explicit and he suggested that should this new procedure come into operation it could bring consequences harmful to this jurisdiction, to the Garda and the Army—that they could find themselves under attack from ill-motivated people.
Let me say quite clearly, and I know I must be speaking for everybody in this House, that if this House passes a Bill into law it will be implemented without fear of the rats from any subversive organisations. We will not be deterred from doing what we think is right to end a scandal on this island by any threats directed against any course of action by us, by this Government, to defend the institutions of the State. That is what this Bill is all about; we want to defend our institutions because they are under attack by virtue of what is happening in Northern Ireland. I am quite sure we have the full support of this House to ensure the implementation of the Bill without fear or in any way being inhibited by threats from unlawful organisations. Deputy Haughey, reported at column 1246 of the Official Report for 10th December last, said:
We cannot help the situation in the North in any way by inciting violence here.
I must reject that proposition totally, that a scheme to provide for the ending of the scandal of fugitive offenders could in any way lead to violence here. The implementation of the law will have to be carried out irrespective of the consequences. That is something that has been done by every Government since the foundation of this State. Should the Government be confronted or challenged, that challenge must be met and not merely met but overcome. I can assure everybody that that challenge will be overcome. All the resources of the State will be available to implement the laws of the State and no challenge from any subversive organisation will be allowed to succeed. I regret that the subject should have been mentioned and it is important to put it on record that as far as the Government are concerned any effort by people who might have it in mind to challenge the working of this Act will be resisted and conquered.
I have very little more to say except to reiterate my confidence that this is a good measure to deal with a matter which has been a scandal. It has scandalised our reputation in Northern Ireland and in the rest of Europe. We have a duty to end that scandal, to take steps to ensure that we will have a legal system here that will not permit our territory to be used as a refuge by people who have been guilty of the most awful crimes in Northern Ireland, because what happens in Northern Ireland affects us here. We have a duty for our security, if for no wider reason—we have a duty for the wider reason of good neighbourliness and assisting the people in Northern Ireland — to ensure that terrorism does not succeed.
It was suggested by Deputy O'Malley that there is no need for this Bill, that we have the Offences Against the State Act, 1972, and that that would be sufficient. Again this is a gross misinterpretation of that Act, which was passed in the context of this jurisdiction only. It was to deal with the prosecution of persons, allegedly members of the IRA, in this jurisdiction, for offences allegedly committed within this jurisdiction. It is not open to this jurisdiction to use that Act to deal with fugitive offenders. It would be very wrong if that Act were to be used to deal with all sorts of offences—so that if a hijacker or a bomber or a murderer same south he could be charged with membership of the IRA. That is not the way the Act works and it would be a dishonest way to operate that Act.
That Act is not comparable with this measure because that Act was meant to deal with an internal problem. The Bill before the House is to deal with an external problem but one which nevertheless affects us here. The 1972 Act was the result of failure to come to grips soon enough with the problem of the IRA. The early ambivalence with regard to that organisation allowed them to grow to such a state that extreme measures had to be taken to deal with them. That was an internal matter; what we are dealing with here is the question of fugitive offenders who have committed acts of terrorism in another jurisdiction.
I am satisfied that when this Bill is passed the entire climate on this island will change. This will be an earnest to the people in the North that we down here are anxious to assist them, that we are not prepared to allow our territory to be a haven for terrorists from up there, that we are anxious to ensure that the scourge of the IRA will be removed from this island. I am hopeful too that, if there is any feeling among terrorists that there is a haven in one part of the island and that this encourages them to persist in their acts of terror, the fact that such a haven no longer exists may be an inhibiting factor and may cause them to desist. I regard the Bill as being most important for the future peace of this island and I commend it to the House.
Has the Minister concluded?
Yes.
Then I will put the question.
May I ask the Minister a question?
The Deputy may ask a question.
And that is all?
The Deputy may ask a question.
Only?
That is all.
Could I ask the Minister about something he may have already elucidated but which I may have missed? Can the Minister tell the House at this final stage whether in fact he has anything in his mind as far as this legislation is concerned other than dealing with the IRA? Is this an overall piece of legislation or is it legislation to deal only with IRA terrorists?
This Bill is designed to deal with any terrorist who flees from Northern Ireland into this jurisdiction and who is found here. It will deal with any such person irrespective of his hue. The reality of the situation is that I expect such terrorists to be in the main IRA terrorists.
I asked a question on several occasions during the course of the debate and no satisfactory reply has yet been given, as far is I know. Since the Minister has gone to very great lengths in arranging for the travelling North of accused persons and immunity being granted in civil and criminal proceedings while there, has the Minister at any stage made any efforts to clear the air as to why those who would be essential to a prosecution of such a prisoner on this side of the Border cannot come down here and be given the same sort of immunity? Why should the prisoner be put at risk and those who accuse him be treated in a different way?
It will be open to any witness to travel to the South to give evidence and I hope this is what will happen. But we would be closing our eyes to the reality of contemporary Ireland if we were to ignore the possibility that there may be an occasional witness who, misunderstanding the South, might be apprehensive of what might happen to him in the South and would consequently resist coming to the South to give evidence and, because the southern courts' writ does not run in Northern Ireland, this witness could not be subpoenaed. To meet that situation it has been provided that evidence may be taken on commission and, if evidence is taken on commission, it is only proper to provide for the accused to go to Northern Ireland for the taking of evidence on commission, if he so wishes. If he does not so wish he may be represented by counsel or a solicitor at the hearing.
The Minister has not really answered my question. Why the obvious bias in our peculiar circumstances as against all past procedure and precedence, the peculiar circumstances in which there is a definite bias to facilitate and accommodate the prosecution and its witnesses and disregard the rights of the defendant which were, I understand, heretofore always regarded as sacrosanct?
The bias is in the Deputy's mind. There is no bias. Precisely the same rights are provided for witnesses for the defence as are provided for witnesses for the prosecution.
No, no.
If a witness for the defence does not wish to go to the other jurisdiction to give evidence he can opt to have his evidence taken on commission. The presence of the accused is in ease of the accused. He is provided with the right to go to the North with all the immunities I have spelled out in great detail. I have also spelled out for Deputy Blaney the reasons why he has to go in custody and I am quite certain——
Why?
——Deputy Blaney knows much better than I do why he is to be in custody in the North.
A Leas-Cheann Comhairle——
We cannot have a series of questions.
Just one final question. The Minister says I already understand, which I do not, and I want to ask the Minister whether in fact, with his knowledge, which should to a large degree match my knowledge, of the situation——
I do not know as much about terrorism as the Deputy does.
——would the Minister not now admit that what he is really perpetrating through this House by strength of numbers is purely an effort on his part——
Deputy Blaney does not want to face up to the fact that we are now getting to grips with the IRA terrorism because he is responsible for setting that up and he said that here in this Dáil.
I am putting the question.
Question put.
The Dáil divided: Tá, 65; Níl, 61.
Tá
- Barry, Peter.
- Barry, Richard.
- Begley, Michael.
- Belton, Luke.
- Belton, Paddy.
- Bermingham, Joseph.
- Bruton, John.
- Burke, Dick.
- Burke, Joan T.
- Burke, Liam.
- Byrne, Hugh.
- Cluskey, Frank.
- Collins, Edward.
- Conlan, John F.
- Coogan, Fintan.
- Cooney, Patrick M.
- Corish, Brendan.
- Cosgrave, Liam.
- Costello, Declan.
- Coughlan, Stephen.
- Crotty, Kieran.
- Cruise-O'Brien, Conor.
- Desmond, Barry.
- Desmond, Eileen.
- Dockrell, Maurice.
- O'Brien, Fergus.
- O'Donnell, Tom.
- O'Sullivan, John L.
- Pattison, Seamus.
- Reynolds, Patrick J.
- Ryan, John J.
- Ryan, Richie.
- Spring, Dan.
- 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.
- Keating, Justin.
- Kelly, John.
- Kenny, Enda.
- Kyne, Thomas A.
- L'Estrange, Gerald.
- Lynch, Gerard.
- McLaughlin, Joseph.
- McMahon, Larry.
- Malone, Patrick.
- Murphy, Michael P.
- Staunton, Myles.
- Taylor, Frank.
- Thornley, David.
- Timmins, Godfrey.
- Toal, Brendan.
- Tully, James.
- White, James.
Níl
- Allen, Lorcan.
- Andrews, David.
- Barrett, Sylvester.
- Blaney, Neil T.
- Brady, Philip A.
- Brennan, Joseph.
- 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.
- Daly, Brendan.
- de Valera, Vivion.
- Dowling, Joe.
- Fahey, Jackie.
- Farrell, Joseph.
- Faulkner, Pádraig.
- Fitzgerald, Gene.
- Fitzpatrick, Tom (Dublin Central).
- Flanagan, Seán.
- French, Seán.
- Gallagher, Denis.
- Geoghegan-Quinn, Máire.
- Gibbons, Hugh.
- Gibbons, James.
- Gogan, Richard P.
- Haughey, Charles.
- Healy, Augustine A.
- Hussey, Thomas.
- Kenneally, William.
- Kitt, Michael P.
- Lalor, Patrick J.
- Leonard, James.
- Loughnane, William.
- Lynch, Celia.
- Lynch, Jack.
- MacSharry, Ray.
- Meaney, Tom.
- Molloy, Robert.
- Moore, Seán.
- Murphy, Ciarán.
- Nolan, Thomas.
- Noonan, Michael.
- O'Connor, Timothy.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Malley, Desmond.
- Power, Patrick.
- Smith, Patrick.
- Timmons, Eugene.
- Tunney, Jim.
- Walsh, Seán.
- Wilson, John P.
- Wyse, Pearse.
Tellers: Tá, Deputies Kelly and B. Desmond; Níl, Deputies Lalor and Healy.
Question declared carried.