The objectives of the Government in introducing this Bill which is now at its final Stage, are designed to punish crimes of violence and to ensure that the men who commit these crimes in Northern Ireland or in the Republic should have no refuge anywhere in the Republic. These objectives my party and I totally support. Every person who lives on this island has an interest in seeing that the bombers, the gunmen and the assasins who have killed and maimed people in Northern Ireland, in the Republic and in Great Britain, who are trying to push the people of Northern Ireland towards civil war, and who have disgraced the people of Ireland in the eyes of the world, are brought to a halt.
While supporting these objectives, we believe that what is contained in this Bill will not achieve those objectives. Every person who lives on this island fully understands that the Northern Ireland majority cannot and will not be bombed into a united Ireland and that the British people cannot be bombed into willing or supporting Irish unity.
Unfortunately while this Bill was being discussed attempts were made to lead the public to believe that if this Bill was passed it would be a panacea for the ills that prevail in this country, that it would be a cure for violence both North and South, and that it would put to flight once and for all the men of violence. Those of us in this party who honestly criticised the Bill—as we still do—were represented at times as giving solace to the men of violence. Nothing could be further from the truth. We in this party treat with contempt the efforts of those who have tried to put the Fianna Fáil Party on the side of violence.
We totally reject the charge that we deliberately delayed the passing of this Bill. We have opposed the Bill on four grounds. First, this Bill, which will be shortly leaving this House, will be politically disastrous in the sense that it will not help to bring peace in Northern Ireland or to promote reconciliation between the communities in Northern Ireland or between North and South. Secondly, we have opposed the Bill because we believe it violates the Constitution of the Republic. Thirdly, we have opposed it because we believe that this legislation, even if constitutionally valid, will not be practicable in its working, and even if it is, it will bring the criminal law of the Republic into contempt. Our fourth main objection to the Bill is that it will compromise our judicial system here in the South and thereby play into the hands of the men of violence who wish to disrupt the institutions of Government both North and South.
We have often said in this House that violence in Northern Ireland should not be considered apart from the political causes which give rise to it. Violence North and South is part of the price we all have to pay for the partition of our country. It is our view that the only long term solution to the problems of violence North and South is to unite our people, Catholic, Protestant and Dissenter, in mutual trust and understanding. We fully realise that such unity will take a long time to achieve and that in the interval we must do all we can to heal the wounds of the past frightful years and to restore peace to the people of Northern Ireland, to the people of all Ireland. If we believed that this Bill would help to reconcile the communities in Northern Ireland or to promote goodwill and understanding among them then we would certainly have given it our support. However, this Bill in its practical working will not promote peace and understanding in Northern Ireland. It will be divisive in the worst possible sense. It will divide North from South; it will divide the majority from the minority in Northern Ireland; it will divide the minority in Northern Ireland from the people of the Republic; and it will divide the people of the Republic.
This Criminal Law (Jurisdiction) Bill has to be seen in the context of policy towards Northern Ireland. This Bill is part of the Sunningdale package negotiated in 1973, but unfortunately we must look at the different situation that exists now from that of the time of the Sunningdale package in 1973. Sunningdale failed. The power-sharing Executive is gone, blackmailed by the workers' strike. We have seen since then the restoration of the old hard line Unionist stance which brought down the Executive at the time. We supported Sunningdale because we believed it attempted to reconcile the conflicting aspirations of the various communities in Northern Ireland. We believed Sunningdale offered partnership between the communities in Northern Ireland and that that partnership between North and South offered a guarantee of civil rights to every man and woman living on this island irrespective of political or religious convictions. If these principles had been realised in effective political institutions I believe that would have laid the foundations of peace and prosperity of a kind which the people living on this island have not known in their tragic history. Unfortunately, the power-sharing Executive in Northern Ireland has been destroyed, the Council of Ireland has not been established and the reforms promised in Sunningdale have not been carried through. The Convention is now at an end and that in itself is sad.
This Bill must be regarded as unconstitutional, unworkable and divisive. It is a negative response from this Coalition Government in that it will do nothing to speed the day of reconciliation or lead to even a temporary solution. In my opinion, it only widens the vacuum created by the failure of political progress. It is now generally accepted, even by the Unionists, that the British have no desire for continued involvement in Irish affairs but find themselves trapped by the negative guarantees contained in British legislation about there being no change in the Northern Ireland situation unless the majority wish it.
This might appear to be in accord with the tenets of democracy, but, given the history of majority rule in the North, we know that the ordinary tenets of democracy cannot be applied there. Either way this guarantee only makes the intransigent more intransigent. When the British declare their interest in uniting the people, then I believe the intransigence will begin to disappear from the Irish scene. It will be only then that discussions can commence on how we can move towards institutions and systems within which everyone on this island can work to our mutual advantage. We have not prescribed a formula nor have we set a time limit for this process. We envisage that our interim and intermediate positions will have to be negotiated. The entire process should be engaged in against a background of peace and we should try to establish a means of ensuring and enforcing peace throughout the island.
Recently we heard the Coalition boast of their commitment to law and order as if that is their only justification for three years in office. There can be no doubt that a policy of law and order is one which any democratic Government are bound to follow. When the Taoiseach says: "We do not bargain at the point of a gun" he is merely asserting that the Coalition are prepared to do what they are morally bound to do under the Constitution.
The point must be made that a policy of law and order does not constitute a Northern policy. Relying on it solely means either total abandonment of any concern for the Northern minority or abject surrender to undemocratic elements who for two years have been allowed to frustrate the wishes of the democratic majority. If this Government have abandoned their commitment to Irish unity, they should have the courage to admit it now or accept the judgment of history on their failure to act.
Sunningdale gave birth to the idea of a common law enforcement area. I understand this to mean a situation on this island where every single person, Catholic or Protestant, Nationalist or Unionist, living in West Belfast or West Kerry, will be guaranteed the same basic civil and religious rights. It envisaged that the European Convention on Human Rights should be made a part of the domestic law in Northern Ireland and the Republic. It also envisaged that the police forces in the North and the Republic would operate under the same basic control and that violence and injustices which gave rise to it would be eliminated side by side.
The concept of the common law enforcement area also envisaged the closest possible co-operation between the police forces in the North and the Republic, bringing to justice perpetrators of outrages both North and South. This total trust and co-operation between the two police forces could only take place, without either force being compromised, if all the citizens in Ireland had the same civil rights and all policemen were subject to the same control. Unfortunately, that is not so.
Many people, including elected representatives of the minority in the North, do not have confidence in the police force and Special Branch operating in that part of the country. Until such time as they have, it is likely that, despite the fact that all the people who live on the island have a common interest in maintaining peace, and that we want time on our side, representatives of all communities should sit down together and devise institutions which will eliminate violence and guarantee peace and justice to every person. We are still not in a situation where this can happen because of lack of trust in sections of the police force in Northern Ireland.
I will deal briefly with the parts of the Bill which, in my view, are unconstitutional. The Long Title reads:
An Act to extend the criminal law of the State to certain acts done in Northern Ireland.
Article 3 of the Constitution effectively limits the extent of laws passed by the Oireachtas. It says:
Pending the re-integration of the national territory...laws enacted by that Parliament shall have the like area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect.
The question must now be asked: have laws enacted by the Oireachtas the same extent of application as is contemplated by this Bill, or the same extra-territorial effect? I believe in both cases the answer must be no.
Under this Bill, if and when it becomes law, it appears to be contemplated that persons charged in the Republic with offences committed in Northern Ireland will be brought before the Special Criminal Court. I believe this is thrusting on that court a job it was never designed to do. Article 38.3.1º of the Constitution provides:
Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.
I take this to mean that the effective administration of justice and the preservation of public peace and order will be in the areas to which laws enacted by the Oireachtas are confined, that is, the Twenty-six Counties.
When dealing with arguments put forward by speakers from this side of the House on the constitutionality of this Bill, the Minister is on record as saying that he is quite prepared to have it tested in the Supreme Court for constitutionality. If this Bill is enacted, I hope it will be immediately referred to the Supreme Court under Article 26 of the Constitution for an opinion as to whether it is repugnant to the Constitution.
This Bill will have a very serious effect on people's respect for the criminal law of the country. The system of trial by jury is a fundamental part of our criminal law. Violence forced the last Fianna Fáil Government reluctantly to re-establish the Special Criminal Court and to make evidence such as the opinions of police superintendents acceptable in certain circumstances when we enacted the Offences Against the State (Amendment) Act, 1972. I do not wish to be controversial at this late stage but I might be forgiven for saying that it is ironic when we remember the antics of the present Minister for Posts and Telegraphs and the present Minister for Justice during that debate, I am certain that the extremes of language they used at that time must be quite an embarrassment to them now. Certainly, the Minister for Posts and Telegraphs who persisted in his opposition to the Act at that time pledged that the next Government would repeal it. The Act is still there and the Government find nothing obnoxious in it. The procedures in respect of the Special Criminal Court are the same as in other criminal courts. The accused is present throughout the hearing; he is entitled to be represented by solicitor and counsel and to challenge witnesses for the prosecution by cross-examination and to give evidence himself.
Section 2 of this Bill contemplates that in certain circumstances evidence may be taken in Northern Ireland for a criminal trial in this State. If an accused person is charged in the State with an offence committed in Northern Ireland all the witnesses, except witnesses as regards procedural matters, will be in Northern Ireland. In many cases, therefore, virtually all the evidence will be taken in Northern Ireland under procedures and rules of evidence which differ from those in the Republic. The accused will have the right to go to Northern Ireland and to be there in the custody of the police force there while evidence against him is being taken. It is unlikely that an accused person charged with a crime of violence committed in Northern Ireland or having escaped from lawful custody in Northern Ireland will voluntarily go there and place himself in the hands of authorities from which he may have escaped. He is given this questionable "right" to attend for the taking of evidence on commission in the North provided he gives himself into the custody of the Northern police. A right would appear to be conferred and then made impossible of exercise. Would it be better not to confer the right at all when it is impossible to exercise it, because the failure of an accused to do so may lead to the comment that he had his chance and did not use it?
In the circumstances, it appears that in many cases all the vital evidence in the case will be taken in the absence of the accused. I suggest that this is a travesty of what our people have come to regard as a fair criminal trial.
If this Bill is enacted I believe it will have the effect of reducing respect for criminal law and in strengthening the hands of those who want to bring all institutions of Government in the Republic and Northern Ireland into contempt. It is a very serious matter to trifle with the people's respect for the criminal law of the State. I regard the Bill and what it contains as a danger to our legal institutions. We are fortunate here in having courts in which the judges rightly command the respect and confidence of the people. If this Bill becomes operational, I believe the judges of the Irish Republic will be placed in a very compromising position. They will be invited to act on the evidence of police officers over whose activities they have no control. They will be obliged to accept evidence procured by methods over which they have no power of investigation or control. Moreover, while the police force in Northern Ireland remains as it is, unreformed, and while the harassment of the minority population there continues, judges from the Republic arriving in Northern Ireland for the purposes of section 2 of this Bill will be placed in a very awkward position. They will have no powers to exercise in the courts in Northern Ireland. They can only sit in silence and watch while the taking of evidence is conducted by another judge, perhaps in the absence of the accused. Surely, the attitude of the minority in Northern Ireland will be influenced if judges from the Republic appear to be helping to enforce the Queen's writ in Northern Ireland acting on the evidence of an unreformed police force and Special Branch.
I believe this Bill will place the judges from the Irish Republic in an impossible situation. They have been called on to act in a way the Constitution never contemplated and they will be exposed to the sneers and hostile propaganda of those who wish to discredit all institutions of Government, North and South.
These are the reasons why if the Bill is enacted and put into operation it will certainly have disastrous effects for all concerned with upholding respect for legal institutions in the North and South. The Bill has been described as trivial and superficial in relation to the nature of the problem with which we are confronted, the restoration of peace based on justice and respect for diverse aspirations in the North. Respect for the combined aspirations of the different sections in the North will require a more fundamental reappraisal of our political and legal institutions than is contemplated by this Bill. Such reappraisal will have to take account not only of the aspirations of the people living in the North but also of the almost insuperable practical difficulties such as that of patrolling the Border.