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Seanad Éireann díospóireacht -
Tuesday, 29 Apr 1975

Vol. 80 No. 7

Criminal Law (Jurisdiction) Bill, 1975: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."
Debate resumed on the following amendment:
To omit all words after "That" and substitute the following:—
"Seanad Éireann declines to give a second reading to the Bill on the grounds that it contains no provision for an all-Ireland Court, is unworkable, inconsistent with Ireland's obligations under the European Convention of Human Rights, and repugnant to the Constitution in that it contravenes Articles 3 and 38."
—(Senator Lenihan)

When this debate was adjourned I had been considering the question of the constitutionality of certain provisions of this Bill and, in particular, I was examining a key proposal which had not been considered at all by the Law Enforcement Commission established at the time of Sunningdale which recommended the setting up of a procedure of this sort. The key proposal to which I had made reference was the fact that under section 11 of this Bill, as confirmed in the explanatory memorandum and the speech introducing the Bill by the Minister, it is clear that it will only be the special courts—in practical terms the present Special Criminal Court—which will be the court which will apply this procedure and before which offences under sections 2 and 3 of the Bill will be tried. This matter was not considered by the Law Enforcement Commission—they made no recommendation as to what would be the appropriate court. Therefore they did not address themselves to the particular constitutional issue which I now want to discuss.

Article 38, section 3, of the Constitution, allows the establishment of special courts in particular circumstances: whenever the Government are satisfied that the ordinary courts are inadquate to secure the effective administration of justice and the preservation of public peace and order. I had argued that it is clear, on a reading of Article 38 together with Article 3, and from the whole context of the Constitution, that what is meant there is the administration of justice and the preservation of peace and order in the Twenty-six Counties.

Special courts after all, are a substantial inroad on the rights of the individual here and the scope of trial by jury and therefore they constitute a reduction of the full application of the rule of law. This inroad can only be made when the constitutional justification is present. It is clear from the law governing the present Special Criminal Court—namely the Offences Against the State Act, 1939—that the provision for special courts is something which must be triggered off by constitutional requirements and must be brought to an end at the first possible moment, as soon as the ordinary courts are adequate again for the administration of justice and the preservation of peace in relation to the particular offences. This is a very important safeguard and control.

Section 35 of the Offences Against the State Act, 1939, provides as follows:

(1) This Part of this Act shall not come into being or be enforced save as and when and for so long as is provided by the subsequent sub-sections of this section.

(2) If and whenever and so often as the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that this Part of this Act should come into force, the Government may make and publish a proclamation declaring that the Government is satisfied as foresaid and ordering that this Part of this Act should come into force.

Subsection (3) provides that once the proclamation is published the section will come into effect immediately. Subsections (4) and (5) provide the two methods of bringing this position to an end. Firstly, if the Government are satisfied that the ordinary courts are once more adequate then they can make a declaration to that effect. Secondly, it is lawful for Dáil Éireann at any time to pass a resolution annulling the proclamation by virtue of which this part of this Act is then enforced. Then the proclamation shall be annulled and this part of the Act shall no longer be enforced and the special court provisions will lapse.

Section 36 is another very important provision in this context because it provides for the type of offences which can be tried before a special court— for the jurisdiction under law of the special court. Nowhere in this assessment of scheduled offences is there provision for the types of offences which are mentioned in sections 2 and 3 of this Bill, which would of course under the terms of the Bill be tried before the special court. Section 36, subsection (1) provides:

Whenever while this Part of this Act is in force the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to offences of any particular class or kind or under any particular enactment, the Government may by order declare that offences of that particular class or kind or under that particular enactment shall be scheduled offences for the purposes of this Part of this Act.

It is clear that, once offences have been designated as scheduled offences, persons charged with scheduled offences will be tried automatically by the Special Criminal Court unless the Attorney General or the Director of Public Prosecutions re-directs them to the ordinary courts.

The types of offences which are scheduled at present under the two orders in existence are the Offences Against the State Act offences themselves, offences under the Explosive Substances Act, 1883, offences under the Firearms Acts 1935-71, offences under the Malicious Damage Act, 1861; and under the second order designating scheduled offences there are included offences under section 7 of the Conspiracy and Protection of Property Act of 1875.

Apart from the scheduling of offences to be tried by the Special Criminal Court it is also possible, within the terms of the 1939 Act, for the Attorney General to certify that "in his opinion" the ordinary courts are inadequate in relation to a particular offence. It is provided in sections 46 and 47. Under section 46, in the case of offences brought before the District Court, if the Attorney General requests and certifies in writing that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of such person on such charge, he may request the District Justice to send such person in custody or on bail for trial by the Special Criminal Court on such charge. There is provision, whether it be a scheduled offence or a non-scheduled offence, where the Attorney General can request the district courts to send the person to the Special Criminal Court for trial. Under section 47 he may have the person charged originally in the special court on his certificate that, in his opinion, the ordinary courts are inadequate.

On each of these occasions where it is intended to give the special courts jurisdiction to try offences it is essential that there be either a Government order specifying that the offence is a scheduled offence or else a finding "in the opinion" of the Attorney General that the ordinary courts are inadequate for the administration of justice and preservation of peace and order. It is very clear on the face of it that the preservation of peace and order and the administration of justice, as far as the courts established under the Constitution are concerned, relate to the Twenty-six Counties, relate to the jurisdiction which the courts have and which under Article 3, is intended they would have, pending the reintegration of the national territory.

I would find it very difficult, looking at the terms of section 11 of this Bill, to reconcile it with the language of the Constitution and the law enacted under the terms of the Constitution to give jurisdiction to the Special Criminal Court. There is a major constitutional impediment there and I look forward to the Minister's reply on this point.

Apart from the constitutional issue in its strict sense, I think that this provision that offences under sections 2 and 3 would be tried by the Special Criminal Court would be most undesirable, in that it would have the effect of institutionalising the Special Criminal Court as a permanent feature in our law. It is obvious that this Bill is part of a bilateral arrangement with the Westminster Parliament. There is a similar Bill going through the Westminster Parliament and it is intended that this bill will be permanent. There is no provision in it that it will come to an end at a certain time, or that there would be a way of terminating the operation either of the whole Bill or sections of it. In other words, it is intended to be permanent and it is permanent in the form in which its provisions are before us. As such it would purport to give a permanent jurisdiction to the special court to try offences under sections 2 and 3 of this Bill. This involves cases where the actual offence was committed in Northern Ireland or where a defendant escaped from lawful custody in Northern Ireland.

This effect would be highly undesirable because there could be a situation where the Government were of the opinion that the ordinary courts were perfectly adequate again to try all offences in the Twenty-six Counties and for the administration of justice and the preservation of peace and order there, so that the Government would normally have brought in a declaration to that effect and terminated Part 5 of the 1939 Act. However because there is this bilateral arrangement, because that is the method we adopted to cope with what I agree is a very real problem, we would not be in a position to bring an end to Part 5 of the Act to terminate the Special Criminal Court. This has a very real juridical importance, a very real importance for the rule of law in the Twenty-six Counties, for the administration of justice here.

Last year I carried out a study of the Special Criminal Court in my capacity as Reid professor in Trinity College. The lecture was reported in a booklet entitled The Special Criminal Court. I pointed out at the end of that booklet:

Finally, since the Special Criminal Court is a truly indigenous development and does not trace its roots to common law it must be scrutinised with care to ensure that it does not make any unjustifiable inroads on the right to trial by jury.

In the context of the booklet I called for an examination of allegations that persons not connected with any unlawful or subversive organisations had been sent for trial before the special court.

The argument is valid here also. We are not authorised by our own Constitution and we should not lightly consider institutionalising in permanent form the Special Criminal Court or any special court which abrogates the right to trial by jury. There would be very clear-cut opposition if a Bill was to come before this House—which in itself would require an amendment of the Constitution and a referendum —to abolish trial by jury for serious criminal offences. There would be an immediate and a very understandable resistance to that. Yet one of the effects of the provisions of section 11 of this Bill and the whole mechanism of the Bill would be necessarily to institutionalise in permanent form the Special Criminal Court despite the very clear requirements in the Constitution that it is only to be a temporary and extraordinary measure. The Constitution prohibits the establishment of a special court if the ordinary courts are adequate for the administration of justice and the preservation of peace and order. One undesirable consequence of adopting this Bill as it stands could be that there might be peace and order and the proper administration of justice here, but one would still have the existence of the Special Criminal Court in order that it might meet the special requirements established on a bilateral arrangement by the terms of this Bill.

Therefore, on the constitutional issue I would say that on the face of it the use of the Special Criminal Court to try offences under section 2 and 3 of this Bill appears to me to be outside the range of Article 38, outside what is justified and authorised by the Constitution and that even if one could get past that apparent constitutional hurdle it would be most undesirable to institutionalise the Special Criminal Court in permanent form, as this Bill would do.

On the question of extra-territorial offences, I think I would share the Minister's reasoning in his introductory speech on the question of their constitutionality. There are a number of precedents both here and elsewhere for extending jurisdiction and that is not a major impediment. However, if the Bill is to be referred to the Supreme Court, it would be proper that this aspect would also be considered as part of the general referral to the Supreme Court. But I do not my self think that it is a major impediment.

Before considering the political context of this proposal I would like to raise what I consider to be one or two difficult problems with other sections of the Bill. I think that the wording of section 3 as it stands, relating to the escape from custody in Northern Ireland, could give rise to serious problems. It is clear that an attempt has been made to confine this section to a person who is charged with or convicted of an offence, and who is thereby serving a term of imprisonment in a prison or is remanded awaiting trial. But I think in the reality of the position in Northern Ireland this section could be open to abuse or at least bring us into a sort of grey area, because there are very many persons in Northern Ireland who have been either detained—possibly for a substantial period—and subsequently charged, or alternatively, charged with an offence and when the prosecution is unable to offer the proof detained under a detention order.

In those circumstances there are serious problems—and lawyers in Northern Ireland recognise this—of parallel proceedings. A person may be charged with an offence but also detained under a detention order, in that these two may run together. It would be much less desirable in those sort of circumstances that we would uphold and support a judicial system where in effect the person was detained without a trial and escaped from detention rather than from prison after conviction. The wording of this section does not take into account the various difficulties which would arise in practice if the section itself were to be implemented. I would welcome some further clarification from the Minister on that point.

The major criticism I would have of the proposals in this Bill to create extra-territorial offences and to provide that where a person was brought to trial in this jurisdiction for those offences the court could go on commission to the other jurisdiction and hear the evidence there are legal arguments. First of all there are the constitutional arguments I have already outlined about the use of the special court and the fact that I do not believe that this is authorised by the Constitution. But also this Bill operated in a very narrow context and offers support to the judicial administration in Northern Ireland in a very blanket form without any questions being asked, without any questions about the extent to which the rule of law prevails in Northern Ireland, without any questions of the extent to which human rights are safeguarded in Northern Ireland. This could have the undesirable consequence of undermining the administration of justice here in the South.

I think that we want to be very wary of lending our full support and official approval to the processes of law enforcement in Northern Ireland. I want to make this point in as responsible and as serious a way as I can, because it is a point that could be misunderstood. Various serious "non-political" studies which have taken place have shown that there are serious defects and at times a serious bias in the administration of justice in Northern Ireland. I should like to refer to a study on the operation of the courts in Northern Ireland called Justice in Northern Ireland: A Study in Social Confidence. This is a study carried out by Dr. Tom Hadden and Paddy Hillyard, who are both very well known to me. They are serious researchers. One is a lawyer; the other is a social scientist with a particular specialist knowledge in criminology. They carried out this study in 1973. They have subsequently, together with Kevin Boyle, brought out a more substantial work on law and the State in Northern Ireland, which I have not had the benefit of reading because it has just come out. But this study, I think, makes it clear that the administration of justice is not carried out, and has not been carried out, in an evenhanded way which could make us confident in linking in to the system of the administration of justice in Northern Ireland. I quote briefly from the conclusion of the study:

It is clear to us that the judicial system in Northern Ireland has never enjoyed the respect and confidence of the minority community. One indication of this was the fact that at no time during the civil rights campaign of the late 1960's was any case raised in the courts which required the judges to determine any of the many allegations of discrimination against Roman Catholics at the local government level. Some attempts were made to initiate proceedings but the problems of procedure and finance were never surmounted, and when an application for legal aid was turned down the attempt was abandoned. But an issue was eventually raised in courts in 1968 over the interpretation of the Special Powers Act the reluctance of the majority of the judges both in the Northern Ireland Court of Appeal and in the British House of Lords to interfere in executive decisions resulted in the rejection of the case. The result in these cases reinforced the initial lack of confidence among the minority of the judicial system.

The failure of the civil rights leaders to pursue or obtain a legal remedy is in our view to be attributed to two major factors. First there was the pre-existing lack of confidence in the prospects of winning any case in the courts. This was due largely to the fact that so many judicial appointments had been made from those who openly supported the Unionist regime. Second there was the unsatisfactory performance of a legal system in response to those issues which were raised. Neither the lawyers nor the judges in Northern Ireland had been trained to deal directly with the broad issues of social and legal justice raised in the civil rights campaign. The current British tradition of relying on highly precise and technical points of procedure and of erring on the side of caution in apportioning blame was highly inappropriate. This would seem to us to be a compelling argument for the enactment of a strong Bill of Rights for Northern Ireland.

I just want to refer to one other brief passage at the conclusion of this report:

Since the introduction of internment without trial in August, 1971 the Northern Ireland judges have taken a more direct approach to their responsibilities as guarantors of justice and civil liberties. But this welcome trend has been effectively cancelled out by the superimposition of "executive justice" on the decisions of the courts. The numerous cases in which the security forces have used their powers under the Special Powers Act to rearrest person acquitted or ordered to be released by the courts, and the failure to pursue cases arising out of alleged misconduct by members of the security forces with the same vigour as those against suspected terrorists, have been extremely potent factors in the continuing lack of confidence among the minority community in the judicial system as a whole.

We cannot consider a Bill of this sort, which would require extensive and full-co-operation between the judicial authorities and the police authorities here and in the North, in isolation from the very serious criticism which had been made of the administration of justice and the rule of law in Northern Ireland.

It is relevant to remember that at present when an application for extradition is made when a warrant issues from Northern Ireland and is sent down here to be backed by an assistant commissioner, and when the accused comes before the District Court, an order is made for his extradition and he makes application under section 50 of the 1955 Act, the allegation that is made in general and which is accepted at present by the High Court judge who determines the matter is that "the rule of law has broken down in Northern Ireland and that the person is involved in an armed revolt against the administration there". It is variations on that formula, that the rule of law has broken down and that the particular individual is concerned in an armed revolt against the forces of law and order in Northern Ireland which result in a judicial ruling that the offence is a political offence or connected with a political offence.

I will have some comments to make on the approach of the Law Enforcement Commission to this question of extradition. Indeed, on reading the arguments of both sides on the question of extradition, I would find myself much more persuaded by the arguments put forward by what might be called the British side. I thought the arguments were stronger in favour of having a certain derogation in relation to specified offences from this principle of not extraditing for political offences or offences connected with a political offence. However, that does not take from the point that, at present in our High Court, the argument based on a breakdown of the rule of law in Northern Ireland is accepted on its face by the judges here.

Therefore, the most serious criticism of the legal aspects of this procedure is that it is a very limited and blinkered approach to the whole Northern problem. It appears to suggest that one can isolate the question of law enforcement; that one can have full co-operation and respect for the administration of justice and the police forces in in Northern Ireland despite the many serious criticisms made by international jurists, by researchers in Northern Ireland itself, by independent commentators and indeed made by ourselves as a country when we brought Britain to the European Commission and Court of Human Rights for the allegations of improper treatment of prisoners held in custody in Northern Ireland. I do not think it is possible to divorce this narrow question of law enforcement from either the broader juridical context or the political context.

The political aspect has been dealt with at some length by several Senators who have contributed already and who have pointed out that the recommendations of the Law Enforcement Commission, and in particular the proposals contained in this Bill, were part of a general overall political package agreed at Sunningdale on 6th-9th December, 1973. I do not think it is politically wise to separate this narrow aspect of the package and then to introduce into it a new concept that the Special Criminal Court would be used as the court for the purposes of this particular mechanism recommended by the Law Enforcement Commission; nor do I think it is having very happy or desirable consequences in Ireland in April of 1975 in either the North or the South of this island.

The law Enforcement Commission, consider four possible ways of solving the problem of the fugitive political offender. If the Minister is to rely at all on the recommendations of the Law Enforcement Commission, then he must surely give reasons, which do not relate to the urgency of getting an agreement as part of the Sunningdale package, for rejecting the other proposals of the Law Enforcement Commission and, in particular, the proposal for the all-Ireland court method. The Law Enforcement Commission considered four proposals:

(a) a common law enforcement area in which jurisdiction is exercised by an all-Ireland court—the all-Ireland court method;

(b) the extradition method;

(c) the conferring of additional extra-territorial jurisdiction upon the courts of each jurisdiction—the extra-territorial method; and

(d) the exercise in each jurisdiction of extra-territorial jurisdiction by special courts consisting of three judges, at least one of whom will be a judge of the other jurisdiction— the mixed courts method.

The Law Enforcement Commission dealt first with the all-Ireland court method in chapter 2 of the report. They explained that they dealt with this method very briefly because they were agreed that it was not practicable to deal urgently with the problem by this means. What they meant was that in the context of a political package an overall package, which included provisions for a joint police authority, against the background of the existence of a power-sharing Executive, and which included provisions for a Council of Ireland the political exigency was that there must as a matter of urgency be an agreed solution to this problem of the fugitive political terrorist. Since the Law Enforcement Commission were urged to think in terms of weeks rather than of months, and to bring in their report as soon as possible, they did not give much consideration to this particular proposal. However, they gave it sufficient consideration to see that it had certain advantages. I should like to quote briefly from that part:

It was clear to the Commission that the method possessed certain advantages: for example, the court's ability to sit anywhere in the island and its jurisdiction over the whole island would solve problems with regard to attendance of witnesses. Moreover, full uniformity in the law to be administered has many attractions. However, the setting up of such a court would require amendment of the Constitution of Ireland. This could be brought about only by a referendum, which would be attended by inevitable delays and by uncertainty as to the result.

Several things have changed since the Law Enforcement Commission made that comment. The immediate urgency of reinforcing the political package of Sunningdale is no longer there. A considerable amount of time has passed in the interim in any case. Secondly, the major Opposition party in the South have indicated their preference for the all-Ireland court method, that they are in favour of the establishment of an all-Ireland court together with provisions for the safeguarding of human rights in the whole law enforcement area.

In the political sphere it is clear that it is not possible to contemplate serious political changes of this sort unless there is an indication of support from the Opposition. It would be worse to try to change the law in this area and lose a referendum when the matter went to the people than not to have tried at all. So there would be some justification for not considering this method if it was clear that there was opposition from the Fianna Fáil Party. The contrary is very clear and I would say that the Government must have been able to ascertain this privately rather than in the full glare of publicity when this Bill was introduced into the Dáil and then removed to be given its Second Reading in this House.

Most of the factors which conditioned the Law Enforcement Commission in their approach to the all-Ireland court method are changed. The time factor is changed and the attitude of the Opposition Party in the South is clarified and is in favour of this approach and therefore holding the necessary referendum would not necessitate a great risk. The people of Ireland would, in fact, welcome an opportunity of establishing a proper respect for the rule of law and respect for human rights throughout the whole island. So the only opposition at a political level that one could envisage is the opposition of the loyalist and, in particular, the more extreme loyalist voices in Northern Ireland.

This is why I do not find the measure before us a satisfactory one. It requests the Seanad to give recognition and co-operation to the present administration of justice and police forces in Northern Ireland at no price at all; there is no quid pro quo of the protection of human rights in Northern Ireland. As must be clear from the extracts I quoted from the study made by Tom Hadden and Paddy Hilliard, this is a most one-sided, shortsighted and unsatisfactory approach. The political package which would have to be worked out is one which has a quid pro quo; so that we have an all-Ireland court method for the enforcement of law, for the upholding of the rule of law, for the trial of people who commit serious offences against persons and against property, but that we also have the full operation of the rule of law in its positive sense, in a sense that there is the protection of human rights throughout the area of this island.

There was a burden on the Government when the rest of the Sunningdale agreement collapsed to begin again and to build up this type of package, the package that would have the necessary quid pro quo of a guarantee of full protection of human rights in Northern Ireland and review by the all-Ireland court, because the idea of having a law enforcement area and the protection of fundamental rights throughout that area presumed that there would have to be a final court to interpret and review and uphold human rights within the area. I regard the assessment of the Law Enforcement Commission of the impracticability of the all-Ireland court method as a very superficial one in the present context in which we find ourselves, and I would urge the Minister to reconsider this position and to reconsider proposals along the lines of that option.

Looking at the extradition method, it is worth putting on the record of this House that, having examined the detailed arguments on both sides of the case for using the normal extradition method by designating certain types of offences which would not benefit from the classification of being political offences or connected with political offences so that persons could be extradited for them, I would express the personal opinion that the arguments put forward by the British team on the Law Enforcement Commission were much stronger and much better argued than the Irish arguments. However, when the four Irish members of the Law Enforcement Commission are united in opposition to this possibility it is not a political reality to consider that proposal.

The third option was the extra-territorial method, and it is the second model of this extra-territorial method which has been chosen. This would allow for a commission to hear evidence in the other jurisdiction, that is in Northern Ireland, in relation to persons on trial here for offences committed in Northern Ireland. It is that variation of the extra-territorial method which the Minister has chosen. As I have said previously, he has however introduced a totally new factor by deciding that it will be the special court which will be the court which will try such offences.

This extra-territorial procedure imposes an enormous responsibility on the members of my profession, the Bar. I was trying to think what it would be like to be briefed in a case of somebody who was charged with committing a serious offence in Northern Ireland, such as murder, escaping from lawful custody in Northern Ireland or one of the other offences in the Schedule to this Bill, where witnesses were not prepared to travel and it was necessary to go North. It is hard to consider that in practice without immediately envisaging a police cortege going North, the accused in one police car, the legal representatives in another one and judges of the court in a third car; then at the Border a transfer of the accused to the authorities of Northern Ireland, a transfer of the police protection aspect—if there is a police protection aspect—to the police authorities in Northern Ireland. It is very difficult to make this point explicitly but it could undermine the independence of the Bar. It certainly would not be a desirable procedure from the point of view of the legal profession, although I have no doubt at all that the members of my profession would be prepared to cooperate if this was the method chosen.

From a practical level it has these undesirable consequences so, it is worth trying to assess the number of cases of this sort that would be likely to occur. On this point we have some guidance from the Law Enforcement Commission. It is pointed out in the footnote on page 9 of the report that:

From 1st April, 1971 to date——

That would be April, 1974

——warrants for 33 persons suspected of politically motivated crimes of violence have been forwarded from Northern Ireland to the Republic of Ireland in respect of offences in the schedule appended to this Report.

So, in a space of three years—from April, 1971, to April, 1974—there were 33 warrants or requests for the extradition of persons to Northern Ireland, which is an average of more than ten a year and presumably this would continue to be the rough estimate of the number of cases to be expected. In a practical sense that procedure could give rise to very real difficulties for members of the legal profession in safeguarding their own independence, not to speak of the potential risk to them in their personal capacity.

I should now like to adopt a completely different approach to the Bill, to consider a completely different aspect of it and I should even like to go so far as to put on my mortar board as paid professor of criminal law in Trinity College because the points which I am going to make for the next few minutes are narrow but important points relating to criminal law which criticise some extremely badly conceived amendments to the criminal law which are purported to be made in this Bill.

I am referring to sections 5, 6 and 7 of the Bill. Section 5 purports to amend the Larceny Act, 1916, and to substitute the definition of the offence of robbery which is taken word for word from the definition of the parallel offence of robbery in the Theft Act, 1968, in England. The effect would be to simplify the definition of robbery as follows:

(1) A person is guilty of robbery if he steals and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.

(2) A person guilty of robbery or of an assault with attempt to rob, shall be liable on conviction on indictment to imprisonment for life.

This is identical to the section of the Theft Act, 1968, relating to robbery except for one very important point. It adopts verbatim the section but it does not adopt the definition section of the English Act. In other words, you have a quite different meaning of "to steal" under the provision which amends the Larceny Act, 1916, from the words "to steal" as used in what appeared to be the identical provision of the English Theft Act. The result of this method of amendment is not the result which the Minister desired in the Bill and which he stated in the explanatory memorandum. The present section follows faithfully the language of the English and Northern Ireland legislation and the intention was "that the law will be the same in all three jurisdictions". But the law will not be the same in all three jurisdictions because there is a very distinct difference between the definition of "to steal" under the Larceny Act, 1916, which would still govern the section here and the definition of "to steal" under the Theft Act, 1968.

I had hoped to have brought with me a textbook which would illustrate the difference but I think the point is well made by showing that section 1 of the Larceny Act, 1916, provides that:

A person steals who, without the consent of the owner, fraudently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking permanently deprive the owner thereof."

The English Act, on the contrary, introduced a new and quite different definition of stealing which relates to "dishonestly appropriating the property of another". You do not have to have the intent at the time the act is committed, and you do not have to have this technical factor of "asportation" or "taking and carrying away". Therefore I could conceive of several examples of what would constitute robbery under the English Theft Act definition of robbery which would not necessarily be robbery under the Irish new definition of robbery which is still referring back to the definition section in the Larceny Act of 1916.

The same sort of reasoning applies to the definitions of burglary and aggravated burglary. In the definition of burglary under section 6 it is word for word from the section of the Theft Act. A person, in order to be guilty of burglary, must enter a building or part of a building as a trespasser or, having entered it, "he steals or attempts to steal anything in the building ... or inflicts or attempts to inflict on any person therein any grevious bodily harm." In cases where the type of burglary involves going in with intent to steal then you have the same problem that you have in the case of robbery: that intent to steal is a quite different concept under the Larceny Act, 1916, than it is under the Theft Act and there is a much broader and more flexible definition of theft and stealing under the Theft Act, 1968.

This has particular importance in that section 7 defines aggravated burglary again by reference to burglary and therefore by reference to a possible necessity to prove an intent to steal; but it is aggravated if a person who commits the burglary has at the time with him any firearm or imitation firearm, any weapon of offence, or any explosives. It is provided in the Schedule to the Bill that that would be a scheduled offence which, if committed in Northern Ireland, could be tried before the special court under the terms of the Bill.

I should like to make the point very seriously to the Minister that this is not the place to make very fundamental amendments to our criminal law. I would be the first person to say —particularly in relation to the whole field of larceny—that we very badly need amendments to the Larceny Act, 1916. We need a new modern code, and there is a great merit in adopting the same or a similar approach to what has been adopted in Britain and Northern Ireland. But I think this is the worst possible way of going about it. First of all the Minister has adopted the identical sections of the Acts in Britain and Northern Ireland but not the definition section, so the offences do not mean the same and are not identical but are substantially different. Secondly, for those who are trying either to teach or learn or practise criminal law it is very complicated if you have to look for major changes of definitions of the most common offences in a Bill where you do not at all expect it, the Criminal Jurisdiction Bill, which has to do with extra-territoriality. Then, when you find the definitions of the offences themselves you still have to refer back to the 1916 Act for the meaning of the concepts used in these definitions.

I should like to make one final point on this narrow criminal law issue. I do not think that the present wording of the sections in the Bill would meet even the problem which has arisen in our general extradition law in practice and which indeed arose in the High Court yesterday in relation to an application for extradition on a charge of forgery. I should like to refer to the problem of corresponding offences under the Larceny Act dealt with in The State (Furlong) v. Kelly, 1971 Irish Reports, where the question arose as to whether a warrant which was sent over from England disclosed an offence under Irish law. The warrant was that a person had entered certain office premises in England as a trespasser and had stolen therein certain property contrary to section 9 of the English Theft Act, 1968. The warrant was sent to Ireland to be endorsed and the question was whether there was an equivalent offence under Irish law. The order of the District Justice was quashed in this case and the question was examined by the Chief Justice at the time, Ó Dálaigh, who said at page 141 of the report:

Where, as in the present case, the offence specified in the warrant does not arise under a pre-Treaty statute which has been continued in force in Ireland, the District Court is put on inquiry by s. 47, sub-s. 2, of the Act of 1965——

This is the Extradition Act

—— The basic inquiry is to discover whether the several ingredients which constitute the offence specified in the warrant, or one or more of such ingredients, constitute an offence under the law of the State and, if they do, whether that offence (the "corresponding offence") is an indictable offence or, if not, whether it is punishable on summary conviction by imprisonment for a maximum period of at least six months. As to the first limit of the inquiry the position may be illustrated algebraically as follows. If the English offence consists of, say, four essential elements, A+B+C+D, then a corresponding Irish offence exists only if it contains either precisely these same four essential elements or a lesser number thereof. If the only Irish offence that can be pointed to has an additional essential ingredient (that is to say, if the Irish offence may be defined as A+B+C+D+ E), then there is no corresponding Irish offence to satisfy the requirements of s. 47, sub-s. 2, of the Act of 1965 for the simple reason that, ex hypothesi, conduct A+B+C+ D falls short of being an offence under Irish law or, in plainer words, is not an offence. It is fundamental to extradition that no one shall be extradited for acts or omissions (the offence alleged in the warrant) which, if repeated within the State, would not offend against our law.

When the Act of 1965 was passed our statute criminal law was, in very large measure, the same as that of the countries to which Part III of that Act applies and, accordingly, no difficulty arose in saying whether or not there was a corresponding offence under the law of the State. The mere statement of the offence in most cases made a perfect equation. However, the enactment of the Theft Act, 1968, has created difficulties which could not have been foreseen in the year 1965. It is now idle to speculate whether, if the Theft Act had been in force in 1965, the Oireachtas would have preferred to specify in a schedule nominatim the offences in respect of which extradition was to be granted. Until some such simple formula is law the District Court and, on a habeas corpus application, the High Court and, on appeal, this Court must prepare themselves for the difficulties of determining what offence (if any) is the corresponding offence under the law of the State.

I would submit that the Minister's attempt in this Bill to provide a corresponding offence of robbery, burglary and aggravated burglary by borrowing the wording of the sections of the Theft Act in England and Northern Ireland does not achieve this object because he has not borrowed the definition section which is crucial. A situation could arise where extradition still failed because, although it would be robbery under English law, because of the broader definition of "to steal" it would not be an offence under Irish law because the intent did not exist at the time of the taking or because there had not been asportation. The District Justice would have great difficulty in deciding on the facts described or what was contained in the warrant whether the offence in the English warrant was an offence under these Irish provisions.

There are a number of other minor points which could be made on this Bill but which I think are more appropriate for the Committee Stage. Perhaps I could summarise the major problems I have regarding this Bill and which dispose me to vote against it on Second Reading. They are first: the serious constitutional problem in using the special court, a matter which was not considered by the Law Enforcement Commission and which appears to be contrary to the wording and intent of Article 38 of the Constitution. Secondly, the fact that this would have the most undesirable effect of institutionalising in permanent form the Special Criminal Court and thereby creating an undesirable inroad on trial by jury in the Twenty-six Counties. Thirdly, cumulative effect of the other arguments that this Bill is being considered in isolation from the whole broader situation in Northern Ireland and in particular the broader juridical situation and that the rule of law is not operating in the way it should be.

The fact that there is serious disquiet in relation to treatment of persons in custody is evidenced by the well-publicised actions before the European Commission on Human Rights. There is no written guarantee of human rights in Northern Ireland. This should be the price extracted at a political level for a proper and broadly based approach to this problem which should be resolved by adoption of the first option considered by the Law Enforcement Commission. I am in favour of the establishment of a law enforcement area where human rights are fully protected and the setting up of an all-Ireland court to enforce the rule of law in that area and to interpret the provisions relating to human rights throughout that area. It is this sort of framework which I believe would meet with broad political approval in the Twenty-six counties that the Government should be considering and should be proposing to this House.

Senators on this side of the House have from time to time to resist the temptation of treating Senator Mary Robinson as the leader of the Opposition. I must continue to resist, but the temptation is very great. Speaking as an old solicitor in the presence of a young lawyer, I think her reference to the erosion of the rule of law, to the deprivation of the right to have trial by jury, is rather like an argument between passengers of the Titanic as to the quality of the deck chairs they are sitting on. It is rather like someone complaining about the damage to the decoration of the parlour caused by people bringing the necessary defence to the house when it is under siege. When Senator Robinson states that the only opposition to the all-Ireland court is that of the Loyalist representatives it seems to me very like saying: “The only thing that is wrong with that marriage is that the man drinks his head off, beats his wife constantly and in his spare time batters his babies.” That is what is wrong with that marriage. All that is wrong with the all-Ireland court is that the Loyalist representatives will not agree to it.

With regard to the Fianna Fáil position, it is only fair to observe that, as someone said of Wagner that he sounds worse than he is, Fianna Fáil frequently looks worse than they are. They have their problems. The type of the reasoned amendment they propose is a method of continuing the constitutional nature of the party, which first started off as a slightly constitutional party and which now opposes the legislation before us on the grounds that it offends against the Constitution.

It is quite legitimate for Fianna Fáil to oppose this Bill. They are doing their duty as an Opposition by offering reasons for not enacting what is proposed, but they should offer better reasons than those contained in the reasoned amendment. They say that we should decline to give a Second Reading to the Bill on the grounds that it contains no provision for an all-Ireland court. But they end by objecting to this Bill as being repugnant to the Constitution. Their recommendation of an all-Ireland court is not possible without an amendment to the Constitution. There is no possibility of enacting such legislation without amending the Constitution.

On the question of referring this Bill to the Supreme Court—and that is a matter for the Government to decide upon—there is no question of having to refer it to the Supreme Court. It is clearly repugnant to the Constitution to enact what Fianna Fáil propose. They propose to oppose the Bill on the grounds that it is contrary to the Constitution, and then recommend something which would involve a referendum and an amendment of the Constitution.

They oppose the Bill on the grounds that it is untimely. It is matter for the exercise of considerable judgment as to whether it is timely or not. All the lives that must be lived in all parts of this island are of limited duration. All the eternities that lie before them are infinite. There is no time like the present to try to cope and deal with the offences which people in the Six Counties are committing against each other—murder, manslaughter, arson, kidnapping, false imprisonment, burning people in their dwellinghouses, hijacking planes, explosives, all the different types of fearful hideous crimes being committed in our name, in the name of this Republic, and which go to the very root of our system, crimes which challenge, not merely the integrity of the State and its legitimacy but the whole quality of justice which we administer. We should remind ourselves that it is no good talking about the rights of citizens in their dealings with each other, or the rights of the State to go about its business administering the policies of this and the previous Government, of dividing up property and controlling expenditure and income.

We do not seem to realise that the first element of justice is the duty the citizen owes the State to obey the law. This duty, this right, this obligation is challenged in its very essence by the activities of the armed conspirators who go around nullifying our foreign policy and our all-Ireland policy. They succeeded in destroying the Sunningdale Agreement because they went out to do so. People say here that, because this was part of a package, they are going to prevent us enacting it and recommending it to our people. This would be a tremendous collapse of authority, a complete and cowardly repudiation and surrender of duty.

In my view this is a brave Government and a brave Minister. The measures here are, so far as I can judge them, right. There is no time like the present to deal with the miserable offences which are committed. I do not dismiss the criticism on timeliness made by Senator Ryan. It impressed me as everything he says does, as being a sincere contribution and judgment of his mind. It is the Government's duty, finally, to govern. It is their business to determine what is the timeliness. We all know that this great mischief has gone on for many years, mischief which is seriously offensive to the Northern Ireland Loyalists. They cannot understand, and I have had quite a number of conversations with them, the position under which, apparently, our judges let off people who, on the face of it, have very serious charges to answer. They feel this is something which involves our people, that we are not sufficiently concerned to repudiate their actions, to control them and to bring them to boot. In so far as this Government are acting, I certainly support them.

On the question of the timeliness, the information of the Government is at least as good as the information of the Opposition. Therefore, I am quite prepared to support what they propose. By their actions these people involve us in a serious disgrace to our reputation internationally, a disgrace we should try to overcome and defeat by our firm actions. In so far as the Government are proposing to do this with this measure, I support it.

Maybe, if we had the agreement of the Loyalists and the full support of all the parties to an all-Ireland Court, this would be a better measure. But as I said recently, the bad may be the enemy of the good, but the worst enemy effectively to the good is the best, that you do nothing: if you cannot do the best, you do not better your own situation. The fact is that we could not have an all-Ireland Court without the agreement of the United Kingdom Government. We could not have the agreement of the United Kingdom Government—apart from the fact that they find difficulty in agreeing on anything among themselves at the moment—in relation to Northern Ireland without having at least a sense of ability on their part to get it through to the Loyalists. We could not get this without a referendum.

On the question of the so-called political peace referred to when this debate began, how much political peace has there been since this debate began? Murder after murder. Even if this fails, it is at least an attempt by the doctor to cure it, not an analysis of the type of remedy which might be best for the patient. Here is a doctor prepared to prescribe for an ailing patient. I vote for that doctor. I support the doctor who is prepared to treat the patient.

Fianna Fáil were only recently a Government. I look forward to their being a Government again after a due period of penitence in Opposition and after they have learned all there is for us to teach them with regard to the proper government of this country. I look forward to their coming back from the position of loyal Opposition to that of administering the many laws that I hope this Government will introduce and enact. I hope they continue to administer them as well as this Government are prepared to do.

In regard to the different measures open to us, we can do the Fianna Fáil thing. And what is that? Do nothing. Let them commit arson, let them commit murder, let them burn people in their houses, let them blow people up in the pubs and then let them come down here and have comfort. Let our reputation be dishonoured in the world. Let our Christian Churches be spat upon and their doctrines, which pretendedly divide them, repudiated throughout the world because of their conduct. That is not the course adopted by this Government.

The other course open to the Government is the all-Ireland court. We have talked about that. Maybe it is the best and maybe someday we will have it. Even in its operation, with all the goodwill that could be mustered together by the people in authority in all parts of this Island, it would be difficult justice. Many difficulties would arise. Senator Robinson gave some indication of her views.

The other method is to amend the extradition law. Is it Fianna Fáil policy to change our law in this regard? Do Fianna Fáil think that this course recommended by the judges of the Supreme Court and adopted by this Government is unconstitutional? They do. But do they go on to say that we should amend the extradition law which they say is not in the power and right of this State to amend? Is that the Fianna Fáil position?

Senator Robinson, like myself, finds this a very interesting intellectual exercise. If we amended the extradition laws, this must go to the Supreme Court for verification as to its constitutionality. We have got a fair hint, at least of how the Supreme Court are likely to view that proposal. It is significant to note that Fianna Fáil have chosen to obscure the fact that they do not propose to do anything. They have chosen as an alternative a method they know is not practicable. They are entitled to this, because this is an Opposition position. These are conventions. We all understand that an Opposition must put up an opposition. We all understand they must do their duty, as Senator Robinson would if she were faced with the defence of an accused person for whom a bad case had to be made. That is the Opposition position. They have got to make a case and it is open to us to say it is bad.

The matter of the constitutionality of what is proposed has been questioned. I repeat that it is not likely to be held to be unconstitutional if two judges of the Supreme Court express the view that it is not. That is not a very legal argument. But a court tends to rule what the judges' opinions happen to be. If we know the views of two of the members of the court on this matter, it gives us an indication of what the other members will say when reaching a decision.

The second point I would make is a legal one. It is suggested that because we are proposing to legislate for extra-territorial offences this is in some way contrary to the provisions of the Constitution. I should like to read some of these. Article 1 states:

The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.

It should be no surprise for us to discover these words in that Constitution because the root of title of this State and to which those who challenge it have to go back is the Proclamation of the Irish Republic. If I were to say I declare the right of the people of Ireland to the unfettered control of Irish destinies to be sovereign and indefeasible, I would only be saying what the signatories to the Proclamation said when they said they so declared. This is an unmistakable mark of the sovereign nature of this State. One of the marks of a sovereign state is its right to enact legislation, to ensure that its legislation can and is recognised by international law, and that it is entitled to govern the activities of persons in certain circumstances outside the actual territory of the State. The Minister has given numerous examples of that in his speech and I recommend that all reread that speech.

Section 30 (1) of the Extradition Act, 1965, proposed to this Parliament by the Fianna Fáil Government, reads:

Where any citizen of Ireland does any act outside the State which constitutes an offence for which he would be liable to extradition but for the fact he is a citizen of Ireland he will be guilty of the like offence and be liable on conviction to the like punishment as if the act were done within the State.

That is part of the law which has been unchallenged for ten years. It was properly part of our law and it was properly introduced by the Fianna Fáil Party, and I do not think we opposed it.

What has that to do with this Bill?

I do not think we even put down a reasoned amendment to it because we did not have any problems with the activities of our citizens abroad. We do not have these kind of problems on this side of the House. Fianna Fáil have their problems and I recognise that they must do the screening operation and I congratulate them on the ingenuity with which they coped with it. It is surprising that this argument should be offered with regard to the constitutionality when one has reference to these Articles. The fact that the State has power to legislate extraterritorially is spelt out in the Constitution itself. Article 3 states:

Pending the reintergration of the national territory, and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory, the laws enacted by that Parliament shall be the like area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect.

Article 29 (3) states:

Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.

This is a generally recognised principle of international law which was well illustrated in the Minister's speech. I do not think it is necessary for me to go beyond that.

It is open to the Government to invite the Supreme Court to pronounce judgment on this measure. I must confess I have not heard or read anything that was said in this debate so far that would affect my own judgment, though I am not a judge of the Supreme Court assembled collectively to deal with the matter, or which would suggest that it ought to be referred to the Supreme Court. That is a matter that seems to be a political judgment more than anything else. A certain element of delay will result from it.

I think the Bill is one which is proposed to be enacted by the representatives of the people who are given sovereign powers so to enact. I believe it is part of the mark of a sovereign power that it can have laws which have extra-territorial effect and this State has had, without challenge to these laws, extra-territorial laws having effect since the date of the enactment of the Constitution—for example, in the case of murder under the Offences Against the Person Act, 1861, with an extension, I think, of that Act to capture murderers even when the murders were not committed by Irish citizens, by an adaptation of the Offences Against the State Act, 1939, as amended.

This power, which is exercised for the protection of the Irish people, and the defence of our institutions seems to me to be an entirely proper and sensible exercise. The solid fact of the matter is that a comparison can be made between the position of Austria, say, in 1931, and the Nazi Party in oposition in Germany in the same year. I would say the position was in 1931 that the Nazi Party had become so strong in Austria, where it had a certain representation, that it could overthrow the Government of Austria when the Nazi Party had not even been elected to power in Germany. Would it have been an improper exercise of sovereignty by the democratic Republic of Germany in 1931 to take steps to punish people committing Nazi crimes in Austria to protect Germany and its liberties from the effect of their actions?

I am not at all satisfied that the only specific to be applied to deal with what properly has been called lawless conspiracies is repression. I am satisfied it is not the only method, and in due course, I will make some comments of that kind. It is certainly one of the methods. It is a method which, when firmly adopted by a Government giving the lead that is always involved in a Government taking a step that has a considerable tinge of political unpopularity—the very enactment of the law, quite apart from its enforcement—will give this society self-confidence in its own legitimate right to exist and preserve its freedoms from the activity of people self-appointed to their own purposes to use such measures as they think fit to overthrow it. I think this is well-recognised and well-sanctioned international law. By virtue of the provision with regard to international laws under Article 29, it is therefore within the constitutional powers of this Parliament to enact such legislation.

I was worried for a little time by Senator Robinson's remarks. I will be honest with the Seanad. I do not conceal that I was worried. If I thought there was a good argument against this Constitution, or against this Bill, I should say it, because I do not regard the necessary part of party loyalty as involving silence about an important matter if you think that what is being proposed by your party is wrong. Therefore, when I say that I do not accept Senator Robinson's view with regard to the Constitution, the provisions of the relevant Article, Article 38, I mean it. I just do not agree with the Senator. It is not a good argument.

In Article 38 (3) 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.

When I find an Act on the Statute Book enacted in 1939, when this State was just on the verge of an international conflict, which provides in section 35 (2)—and note the language:

If and whenever and so often as the Government is satisfied——

The Government's satisfaction is all that matters. "If and whenever", because that is the law and it is in accordance with the words used in the Constitution. It is the satisfaction of the Government as to the following matter

—— that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that this Part of this Act should come into force, the Government may make and publish a proclamation declaring that the Government is satisfied as aforesaid and ordering that this Part of this Act shall come into force.

The Government are so satisfied. The previous Government were so satisfied because this part of this Act is in force by virtue of a decision, and credit to them for making it, credit to them for deciding it, credit to them for making the proclamation, made on 26th May, 1972, and signed by An Taoiseach, John Lynch, T.D. He then declared himself satisfied in this matter. He declared the Government satisfied in this matter: his satisfaction as to the ineffectiveness of the courts to administer justice effectively and public order and peace remains the satisfaction of this Government.

The case that Senator Robinson makes with regard to this is a case which is more political in character, more judicial with regard to what the law ought to be, more a criticism of the Article of the Constitution than an argument that this Bill or that Act is unconstitutional. She refers to the temporary and extraordinary nature of this court. Search the Article of the Constitution and the word "temporary" will not be found. In the relevant section of the Offences Against the State Act, 1939, the word "extraordinary" is not to be found. One would simply find the cool, considered, deliberate and well-thought-out words "to the satisfaction of the Government."

That is the way it has to be if people are engaged in an attempt to take away from the people their liberties. The final defence, at least the penultimate defence—there is yet another defence which is in the legislation of this country which can be exercised but which it is not deemed prudent or practical to exercise now—is that the Government, being satisfied, take certain action. And who can question the rightness of their satisfaction when one thinks of the methods employed by these people? These are methods which, could I remind them or those who support them, those who follow the Republican tradition and using the words which the Minister for Posts and Telegraphs used in relation to Fianna Fáil, quoting Edmund Burke that "you cannot"— and I do not purport to —"indict a nation". Nor do I purport to indict a party or a tradition I am not in, the Republican tradition. It is not my business to do it, but it is my business to understand it, it is my business to have sympathy with the people who are in it; it is my business to try to persuade that the true republic to which they should have loyalty as a republic is the Republic of this State established and ratified many times by the votes of the people.

When they use the exercise of 1916 as their defence, could I ask them to say what would the signatories to the Proclamation of 1916 have said in the light of what has since happened as to the wisdom of their own decision? Let us not forget that there was a real debate taking place before that Proclamation was signed as to whether it was moral for them to proclaim the republic at all, to go to war. What has happened is that morality has been driven out of the politics of those who employ violence—we do not take our religion from Rome. We do not take our moral guidance from anybody: we follow aggressively the instincts of our own self-deluded hearts. We are led on by what seems to me to me an erotic fascination with death—the great heroism of dying for Ireland.

Remind yourselves of the words of the proclamation—"We pray that no one who serves that cause will dishonour it by cowardice, inhumanity or rapine." What have we had but cowardice, inhumanity and rapine? How can they who make any defence of the actions of these people justify it in terms of people whose prayer was dashed and who, if they were capable of exercising discipline would do so, as these men who fought in 1916 subsequently did? The Leader of the Fianna Fáil Party and Leaders of the Fine Gael Party exercised the discipline that was necessary to bring to book cowardice, inhumanity and rapine. I would suggest that with regard to the Offences Against the State Act the question of whether or not this Bill is constitutional turns entirely on whether or not it is proper under this code so determined to try extra-territorial offences.

If we should set up a new system of trial by jury for people who committed offences outside our State and who, if they commited offences here, would not get trial by jury, to protect the juries and see that justice was done to them, is this cherishing all the people of the nation equally? We would claim that those of the Six Counties are one nation. I do not happen to be required to pronounce any judgment on the two-nation theory or the one nation theory. The situation is quite clear: through the vicissitudes of history there are on this island people who do not want to accept the Government selected by the people of Ireland and who have opted out. There may be a tremendously long, tenuous argument about their right to opt out. But who, facing the historical reality, can doubt that we have got to live by and recognise that right because the alternative is civil war, a civil war which I do not think anyone in this House wants. To be fair to the Leader of the Fianna Fáil Party, certain words were used in this House when this matter was first indicated to be for debate here and those words have been firmly and courageously repudiated by the Leader of the Party, indeed repudiated by the Leader of the Party in this House.

Quote the words.

Senator Killilea can examine his vast conscience and, if he is satisfied with what he sees inside, I am sure that that will be good for the next few hours. In fact, I will allow Senator Killilea to make a speech of the same kind and character he was able to make the last time but I am sure he will make it even better the next time, if he has a mind to do so, and if in his conscience he is entirely satisfied that he is right in doing so and that no lives will be lost by any words he uses and no people will be damaged or injured and no cause that is worthy will be hurt.

Quote the words.

I do not propose to allow Senator Killilea to make a speech when I am making a speech no matter what happens.

An Leas-Chathaoirleach

Senator Killilea should allow Senator FitzGerald to continue.

A Leas-Chathaoirleach, I am grateful to you for any assistance you can give me to protect me in this situation where I am so vulnerable. In fact, we must never allow a debate of this kind to be brought down to the level of the Front Bench of Fianna Fáil. We must struggle to keep it above that level. With regard to the whole IRA movement I said, and the Minister and the Government know that—would that I could give as much support to all the measures the Government introduces or may be introducing as I give to this measure—perhaps this measure will not be a total success, but it is a serious attempt to cure a mischief. It is a recommended measure and I certainly pray that it has success.

There is a serious problem with regard to the collection of evidence. That is obvious. Oral evidence, as has been said by the then Chief Justice Ó Dálaigh, is the proper mode of trial. A statute may provide otherwise. This statute provides otherwise and it is constitutional if it so provides. Nonetheless, there will be problems, the sort of problem touched on by Senator Robinson, the question of confidence in those who are collecting the evidence. But look at the protection. You may say that the witness will not exercise his rights but the provision with regard to the witness, with regard to the accused, is there. It comes in his aid that he can go there if he wants to. What happens if he does not return or if something goes wrong? The answer to that is that there is a like provision in the United Kingdom law and I believe that habeas corpus proceedings would be successful if there was any attempt by the Executive to act illegally, that is to say, contrary to their own laws. It may be that they would introduce an amendment to these laws so that that particular right was taken away. We can amend this Bill if that happened.

There are other protections. The members of the Judiciary will go there and, I am sure, will not like it. They will be able to look at the performance of the commission. They will be able to make their own judgment of the impartiality and objectivity of the commission's operations. Their judgment on this will be in aid of the accused person in the sifting of the evidence. Though not part of the trial, it comes into the trial subsequently for them to judge. There is also the protection with regard to any breach. But there will be an international claim by the Irish Government for breach of a convention. There is also the fact that the Attorney General need not bring any more prosecutions under this Bill—he need not even use this machinery if he finds that it is being abused by the people whose co-operation he needs to try to bring to book people who have committed offences, people who in the circumstances will be alleged to have committed offences, against their laws as well as against ours.

With regard to the IRA, I am not sure that repression is the right thing. I am not sure that even denunciations of them, though I have done that myself and done it today, are not counterproductive. It is like the showing of films about venereal disease. I am informed that it has the most extraordinary effect in increasing the communication of venereal disease when this is done. Films to show the damage of sadism leads to further sadism. I am not sure that denunciations of these people do not sometimes confirm them in their own delusions, do not make them feel so isolated that they just go off and do these things in the name of the God who has failed them, because their essential position is intellectually extremely weak.

What they are in fact saying when they say that violence alone has ever won anything in this country is that 1916 failed. They are saying that 1916 did not produce the legitimate Government which we recognise. We are nearly 60 years on—the rebellion took place then and we have, according to their views, not yet succeeded in that rebellion. This is intellectually a hopeless position. They are ignoring the fact that there is a sovereign State recognised internationally, a State of great reputation, a State honoured wherever civilised words are spoken. There is the fact that in election after election the people who put up this point of view have been defeated. There is not support given by the people for this point of view.

They ignore these facts. What one must try to work towards in dealing with this ethnic problem is to try to identify and get the people to grasp the identification of the State of the Republic of Ireland. We must repair our omissions and remedy our failures and show our concern by active means to achieve the good of our fellow Irishmen, of whichever creed, of whichever background, wherever they may be in these separated six counties of Ireland. I do not think it is any use to say that unity is not our aim. What is necessary is to define the unity that we seek, and that is the moral unity of the community, and, I would judge political unity, desirable or not, according to whether it achieves greater moral unity.

If we could by force, whether the combined force of Britain and Ireland, subjugate the Loyalist people, as they describe themselves, in Northern Ireland for whom I have a great deal of sympathy because they lack all capacity to express their position in any anything like universal terms, does anyone think that political unity achieved in that way against their will would lead to an increased moral unity of the people of Ireland, to a better society for all the people, to the cherishing of all the people equally? I do not think so.

I regard this Bill as one of those practical steps, a brave one and a difficult one for the Government to take, that may hopefully eliminate one of the sources of grievence among those people. I do not think it is such an elimination that will bring about increased political unity. It may be helpful, in due course when it is operated, in getting increased co-operation. It does show our genuineness because it is genuinely meant. The Government mean this legislation; they mean to enforce it; they mean to bring these fugitive offenders to justice. While talking about fugitive offenders from justice, let us know what we are talking about. We are talking about people whose actions threaten the ability of this people to determine its destiny and the form and type of the political, social and economic life that it wants to have. Such an attempt must be defeated. No matter how terrible our actions may appear, the force of this State must be mustered with greater terror than they can muster against it. It is only if that happens on that level can we be entirely sure that the people would remain in control of their own destiny.

I should like to end on this note. We have had too bad a tradition of running down ourselves and our achievements. The achievement of this State and of its people has been a very remarkable achievement. Although we were among the people who were freed after the 1918 War in Western Europe, we still remain free. Our reputation has grown enormously. All sorts of problems, of course, remain to be solved. The solid truth about this matter of society is that the more you solve problems the more other problems come under your observation for further attention. The more the protests the more we drive the energies and forces of this society towards securing solutions to the problems, the more we begin to see there are others remaining for solution.

This Bill is a vital step towards achieving peace in this island. It is unfortunate that, entirely legitimately, Fianna Fáil cannot adopt a bi-partisan attitude on this. It is unfortunate in so far as it will give some aid and comfort to the enemies of our people as expressed through their representatives. This is no part, I fully accept, Fianna Fáil's intention. If we cannot have bipartisanship that does not mean that the Opposition are going to determine Government policy. It does not mean and cannot mean that the Government should hesitate about governing or about being firm. If they have got to make the decision, tough as the decision may be, going it alone, that is the way they have got to go it.

Sa chéad dul síos, ní gá dom a rá nach aontaím leis an mBille seo, an Bille Um an Dlí Coiriúil (Dlínse), 1975. Ní maith liom cuid ar bith de, agus ní thuigim an fá go bhfuil an deifear ar an Rialtas é a chur ós ár gcomhair anois ós rud é go raibh sé ar an chlár acu i 1974. Bhí sé ar intinn é a thabhairt isteach i Mí Nollaig agus tá ceithre mhí imithe ón am sin go dtí anois. Ós rud é, fosta, go bhfuil a lán rudaí le déanamh acu thall san Dáil gur chóir doibh a dhéanamh—rudaí a cheapann muintir na hÉireann, ba chóir dóibh a bheith ag tabhairt aire dóibh—an bhail ina bhfuil eacnamaíocht na tíre, 100,000 daoine as obair, ganntanas airgid le haghaidh oideachais, agus a lán rudaí eile mar sin—bheadh sé i bhfad níos fearr don Rialtas aire a thabhairt do na pointí seo agus gan an Bille seo a thabhairt isteach díreach ag an am seo. Níl mé ag rá nár cheart é a thabhairt isteach sa tSeanad. Measaim gur gná-rud go leor é sin ach i mo thuairimse níl anseo ach cleas chun é a chur ós comhair na tíre mar tá a fhios ag an Rialtas go maith go bhfuil an tromlach acu sa tSeanad, mar níl ach cúigear déag againn ar an taobh seo. I ndeireadh na dála, nuair a bhéas an vótáil ann, beidh an bhuadh ag an taobh eile agus sa slí sin tá siad ábalta a theasbáint do mhuintir na tíre gur bhuaigh siad i dTeach amháin den Oireachtas agus ansin in a dtuairimí féin beidh an ceart acu dul isteach faoi lán seoil ins an Dáil leis an mBille ón Teach seo.

Ní maith liom an Bille féin. Ceapaim gur rud suarach gránna é, rud nach ndéanann maitheas ar bith do mhuintir na Poblachta seo nó do na daoine ins na Sé Chontae nó don tír ar fad. Ní aontaím gurab é seo an t-am is fearr chun é a thabhairt ós comhair an Oireachtais agus tá an bharúil go láidir agam gur chuir na Sasanaigh ar dhuine éigin san Rialtas é seo a sheoladh isteach i láthair na huaire seo. Tá súil agam nach dtógfar sibh orm é sin a rá mar is fíor é agus measaim féin gur fíor é.

Ní hé an chéad uair i stair na tíre a thárla a leithéid. Má rinne an Rialtas rud éigin mar seo ar chúl mhuintir na tíre ní hé seo an chéad uair a thárla sé. Thárla sé i 1922, thárla sé i 1925 agus i rith mo shaoil féin thárla sé i 1949 nuair a chuathas thar sáile chun Poblacht a fhógairt do 26-Chontae gan bacaint leis na sé chontae eile. Ar an ábhar sin, más fíor an rud adeirim, go raibh caint acu faoi rún leis na Sasanaigh agus má tá siad ag siúl ar an mbealach sin anois, is fíor go bhfuil casán mór leathan déanta ag an gComhrialtas agus ag Fine Gael.

I certainly do not welcome this Bill in any shape or form. My name is signed to the amendment, the same is the other Members of my party.

All of them.

The main purpose of the Bill is to provide for trial of offences here commited in the Six Counties. The Schedule to the Bill sets out the various offences. As some of the Senators from the other side say, they include robbery, malicious damage and wounding, firearm offences and unlawful seizure of aircraft vehicles. I am not in favour of any of the offences listed in the Schedule. My party have never condoned that type of activity and have never supported it. We firmly believe in law and order and respect for our own institutions. We firmly and freely acknowledge that the Garda and the Army are the people who should be in charge of law and order for the duly elected Government of the nation. We have followed that line consistently on all occasions.

Let it be truthfully said that on the last occasion that we handed over to a Coalition Government we left them the best off country economically in Europe, with everything as a complete going concern—plenty of money, good prices for cattle, good markets for our exports, all our people practically employed and a good educational system. Anybody, even a neutral observer, would admit that we handed over the ship of State in excellent shape. I will not comment on how that ship is maneouvring at present, about the troubled waters it is in. I am just saying that to assure the Senators on the other side that this has been our policy right down along the line.

Indeed, in the past we have had to introduce unpopular measures so as to ensure that law and order would be maintained here. It is on the records of both Houses that many people on the other side who are falling across themselves regarding this legislation were the very people who spoke vehemently against what Fianna Fáil were introducing then, notably the Offences Against the State Act. They were the very people who threw it into the division lobbies to vote against it. It is only fair to remind them that many people are wondering why they have turned upside down in the interval and why, with their overall majority and so on, they have not tried, as they said they would, to repeal all this so-called repressive legislation?

What the Bill is intended to do is to extend effectively the criminal law of the State so far as it concerns certain serious crimes committed in the Six Counties. The court that tries these offences will be the Special Criminal Court. I was very interested in the fine case that Senator Robinson made. I am not a legal man and having listened to the legal profession on both sides I will have to be content to try to interpret, as best I can, the ordinary layman's look on this. The Bill is unconstitutional and so far as Article 3 of the Constitution is concerned:

...laws enacted by that Parliament shall have the like area and extent of application as the laws of Saorstát Éireann and the like extraterritorial effect.

This means that laws enacted by the Oireachtas are confined to the Twenty-six Counties because that was the distinct meaning of Saorstát Éireann. I will leave that to the legal men and they will probably have a chance of arguing it later.

The Constitution did not contemplate that while Ireland remained partitioned special criminal courts would be established here to secure effective administration of justice in the Six Counties. That was never envisaged. That is a point against this Bill. The practical effect of Article 3 of the Constitution is not to extend the laws of the Republic but to confine them to the 26-county area until such time as Ireland is united. Therefore, in so far as the Bill purports to extend the criminal law of the State to certain acts done in the Six Counties, such a Bill is unconstitutional. Article 38, section 3 (1) of the Constitution states:

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 to the preservation of peace and order.

This Article can only mean that the effective administration of justice and the preservation of public peace and order in the area to which Article 3 of the Constitution refers, are confined to the 26-county area. There may be a further breach of the Constitution, because Article 38 states:

No person shall be tried on any criminal charge save in due course of law.

Trials should be conducted in accordance with the fundamental and well-defined principles of natural justice, which include the right of the accused person to confront the witnesses. A person charged with crimes of violence committed in the Six Counties and who has escaped from custody there will not return voluntarily and place himself in the hands of the RUC where evidence is being taken against him. People cannot be expected to return to the Six Counties voluntarily They are placing their lives in danger and it will create endless trouble for anyone who will try to force people to return to the Six Counties to stand trial, even in custody. It is well known that it is quite easy for the authorities there to say that a person had been shot while he was escaping from custody. That would not be beyond the ingenuity of some who have immense power in the North.

How can an accused person be identified by witnesses before a commission as the man named in the indictment if the accused is not present? I am sure the legal profession would agree with me that that is a fundamental point of law. There is nothing so valuable as the ability of an accused person to be able to confront the witnesses in court. They can ask: "Is that the person mentioned here?" Unless that situation is possible all that exists will be some kind of mob law. I am sure the majority of the citizens of the Twenty-six Counties would not consider that kind of law fair and impartial. A person could remain in the Twenty-six Counties if he thought his appearance in the Six Counties would convict him. If the man feels he is guilty he will not be inclined to return there.

There is a difficulty in taking evidence before a commission in the Six Counties. If some of the witnesses are British Army personnel, will they not act as they have done in the past? They will enter the court with hoods over their heads. Did they not do it in Strasbourg? Will not the British Army personnel claim privilege. Will they not be protected by their own forces? It is ridiculous to suggest that people could return and have British Army personnel appearing with hoods over their heads. Surely no person would feel he was getting a fair trial if these people were giving evidence against him. The prisoner in the dock would not know who was giving evidence. If that is how British justice is administered is it any wonder that John Mitchel said: "On British felony the sun never sets." That is the type of justice that has been meted out down through the centuries and is at present being meted out in the Six Counties.

Perhaps the procedure of taking evidence of any kind in the Six Counties would be quite different from that pursued by our courts. I do not think there is a common denominator where law is concerned between the Six Counties and the Twenty-six Counties. The Six Counties comes under British law. We do not need to submit our Acts to the Queen for her signature. Poynings Law no longer applies here. We have a Parliament of our own. We are entitled to make laws of our own. We do not have to consult the British Government as to whether our laws will be acceptable to them. Will our judges be forced to act on the evidence of the RUC? Is it reasonable to expect our legal profession to accept evidence from the RUC? In general the RUC may have a few decent men but it contains a lot of venom. They have a chequered history and an infamous past so far as justice in the Six Counties is concerned. I am sure no witness would have much confidence in those people giving evidence. Why should we involve the Army and the Garda in protecting these thugs? Why should we place them in the invidious position of trying to protect those hooligans? The result could be baton-charges in which some of our own people would be caught. We would be tremendously foolish to embark on that kind of situation, particularly where there is no all-Ireland court where the same type of law would apply on both sides of the Border. If there were reciprocal facilities the accused would have confidence in the witnesses. Article 1, section 1 of the European Rights Commission states:

to have as part of our domestic law a Bill in this format is a breach of that.

From the constitutionality point of view it will have to be examined. We supported the Sunningdale Agreement. It was at that time that this Bill should have been introduced. A Council of Ireland was proposed. Power-sharing was suggested. The police would be responsible to an all-Ireland court.

Notice taken that 12 Members were not present; House counted and 12 Members being present,

I was referring to the appearance of witnesses in the Six Counties and the difficulties they would have in going there. The Sunningdale Agreement which was a package deal which would have been accepted in toto. I do not think it was envisaged by people in the Six Counties, by the British Government or by the Government here that the Sunningdale package would be broken up and administered piecemeal. The records showed that one condition of its acceptance was that it would be accepted in toto. This exercise that we are engaged in at present was part of the Sunningdale Agreement. Over 90 per cent of that agreement is no longer in existence, and I do not think it is right for the Government to be trying now to resurrect this little bit of it, and why they are doing so is a mystery to me.

At the outset I respectfully suggested that they were introducing this Bill as a political gimmick because they seemed to have an abundance of work in the Dáil. Certainly with 105,000 people unemployed, prices rising and the tremendous dissatisfaction and disorder over the country, the lack of funds for educational purposes, for making roads and for amenity grants, and for hundreds of other things that are necessary to the people at present, I do not think it was wise on the part of the Government to usher this in by way of Seanad Éireann. If an important Bill was being introduced here that would be good enough; in fact we here in the Seanad have made the plea that we would be glad to see much more legislation introduced in this House. That does not seem to be the reason.

I suggest that there must have been some collusion or behind-doors dealings either by a Government Minister or by the Government with the British Government. It was reported in the British papers a week before there was any word here that this legislation was going to be introduced in Seanad Éireann. I cannot understand that news was leaked into English papers seeing that none of our papers, who are very quick off their mark and give a good presentation, were not able to have this vital information for the people of Ireland, many of whom read it in the imported papers or saw it in the papers in England. That alone would more or less suggest that somebody over in England must have been told by the Government here that they intended to do this. Whether it is being done as a delaying action, to have some influence on the Convention elections taking place on Thursday, I do not know, but it is not beyond the ingenuity or the thinking of the Government to do such things. Without saying anything to them personally or as individuals, if they did make a secret agreement with the British Government there has been precedents for this. We know of the 1922 effort, of the secret agreement in 1925, and that in 1949 the then Coalition Government went as far as Canada, away out in the other hemisphere——

An Leas-Chathaoirleach

The Senator is engaging in repetition.

I was merely adverting to the fact that these secret agreements had been made behind the backs of the people in 1922, 1925 and 1949. That is an historical fact and nobody can deny it, because the Republic of Ireland for the Twenty-six Counties was not declared here in Ireland but in Canada. Because all this happened in the past and because all this was done by the very people who are now in Government, I would suggest that if such a thing happened now—or has happened as far as this Bill is concerned—the people who are responsible for it were only following a very well-beaten track.

This obnoxious Bill will not heal anything but it will actually cause a division. I can assure you as an Ulster-man that the partition of Ireland was very bad as far as we were concerned in Monaghan, Cavan and Donegal and indeed in the other six counties, but to us the partition of Ulster was even worse because we were a unit and are still a unit in GAA football games and so on. We do not like to be divided. We would like to see unity between Irishmen on both sides, but a Bill such as this will not bring it about. The Government are asking the people in the Twenty-six Counties to take prisoners into the Six Counties and asking our judges to go in there and sit in the company of judges such as Justice McDermott, that individual who tried the case in which members of the British army walked up to the door of the unfortunate McElhone, brought him out in front of his father, down a lane and into a field and shot him. The champions of British justice did their best to cover that up and eventually when the fat was in the fire and when the reluctant RUC and the other henchmen connected with it could no longer paper over the cracks, the Army brought these hooded soldiers in to a court where they were questioned. I am sure Irishmen all over the world read about the justice that was meted out in respect of that poor Irishman who was gunned to death by British thugs who were over here occupying our country and that the man who sat in judgment was Justice McDermott. Are we asking our judges here, respectable men, to go up to the Six Counties and sit on a commission and listen to those gentlemen questioning witnesses and returning verdicts such as that? That is only one of the hundreds of incidents that have happened and been cloaked up. That is only one sample of what British justice means in the Six Counties.

I am sure that any effort by any Government here to send witnesses from here into the Six Counties at a time when there is no such thing as a Council of Ireland or no such thing as an all-Ireland court will cause disorder and disunity. Let the Government be quite sure that nobody, whether he lives in Kerry or in Antrim, would have respect for justice such as that. If the people have no confidence in the administration of the law then they will have no respect for it. The type of justice that has been meted out in Northern Ireland reminds me of the Black and Tans who, on one occasion when they were going to execute a person here, said: "You will be all right. We will give you a decent trial before we shoot you." You cannot involve us in or associate us with that kind of justice. We do not want our Garda or our Army involved in legislation that is unworkable and that certainly will do no good as regards better relations with and a better understanding between the people North and South. We must reflect on justice in the Six Counties over the last five years. We must think of the hundreds who are in internment camps. Although some of them are being released, we must remember that these people are there without trial of any kind. These agents of the British Army, these SAS fellows, came prowling like the wolf in the dead of night, knocked on these people's doors, and took the head of the family or his wife or his son or daughter. They brought them off and they dumped them into Long Kesh or some of these internment camps. Had they been given a trial, that would be a different matter altogether. Is that the type of justice with which we are going to spancel ourselves? Certainly, we on this side of the House would have nothing to do with such legislation.

Even the timing of this is wrong. It is coming up when elections are being held in the Six Counties—I never use the phrase "Northern Ireland". We use the term "Six Counties"; being Ulstermen we know exactly what it is, six of our counties that have been cut off. This report of the Law Enforcement Commission was received by this Government on the 10th April, 1974. It was a fairly important document. There are a fair number of learned legal men on the benches of the Dáil and Seanad and I am quite sure they made a very detailed study of it. Having studied and paraphrased every line of this legislation, if they felt it was so urgent why is it that they had to wait until well into the month of April to introduce it, create a furore in the Dáil about it and then bring it into the Seanad, where they know quite well that, because of the composition of this House and because of the 11 extra seats thrown into it by the Taoiseach, any amendment to the Bill will ultimately be defeated, that they will eventually, by weight of numbers, not by reasoned argument, succeed in getting this abnoxious legislation passed through this House?

Then they will be able to boast through the media and otherwise that at least one House of the Oireachtas has given the green light in so far as this is concerned. Then with a fanfare of trumpets they introduce it in the other House, if that is their intention, but perhaps—and I think that would be wise—they will have second thoughts about that course of action. Already in this House, small as it is, there have been indications that not all of the people who sit on the Government side of the Seanad are happy in their hearts about this legislation. I am not boasting of that fact. I am only adverting to it. There are many people sitting on the benches opposite who I think are sensible men. They can see the dangers in this legislation and the ultimate results of it.

Business suspended at 5.45 p.m. and resumed at 7.15 p.m.

Before the tea break, I was adverting to the fact that we are not happy with what is contained in this Bill and have signified by our amendment that we do not agree with it. We are 100 per cent against it. I was endeavouring to give some of the reasons. I had tried to make a case that, as an ordinary layman, I felt the Bill was unconstitutional. Many eminent legal men and women, including Senator Robinson, who is extremely well versed in the law, have tended towards the opinion that it is unconstitutional. If there are very grave doubts that this legislation could be unconstitutional, it is wrong to put us in the position of putting on the statute book legislation we know will be challenged ultimately in the courts and which we feel will eventually be found to be unconstitutional. If that is so, we might be acting contrary to the Constitution. The Oireachtas could not be expected to countenance legislation which, in the opinion of most learned people, was not constitutional.

I spoke about some of the objecttions I had to this Bill. I objected that people taken into custody or arrested here would be taken across to the Six Counties and left there to listen to the commission, which it is intended to set up under this legislation, taking evidence. I adverted to the fact that many of the people giving evidence would be members of the British forces who, unfortunately, are still in occupation of six of our counties. The root cause of this trouble within our land is the presence of the British on our territory.

There should be no messing or shilly-shallying so far as this is concerned. We do not like them. We do not and we never have wanted them there. They have been there for 700 years against the will of the Irish people. They are there by massive force now. That is the main cause of the trouble there and not sectarian or religious strife between people within this island.

We, in this party, have striven as best we could down along the line to encourage the people of Ireland to come together. I firmly believe that if the British made a gesture by suggesting a date as to when they would withdraw from here and contributing financially to a phased withdrawal, Irishmen on both sides of this unnatural boundary would come together. That is why we were bending over backwards to ensure that there would be an all-Ireland court by consent. But because there will be no such vehicle in this Bill, it is totally obnoxious to us.

How could it be in the Bill if it is not constitutional?

I am just an ordinary layman from the country. I have not had the benefit of the legal training the Leader of the Opposition got. I should not like to tread on his preserves in legal matters. I am stating a down to earth version of what the Bill is trying to do. The majority of the Irish people know what the Government are aiming at——

The Senator should not be encouraged by interruptions to his remarks by individual Senators or groups of Senators.

I did not beg an interruption from the Leader of the Opposition. I do not want to be disrespectful, but for a man of his good sense perhaps he should not have interrupted. When he chooses to interrupt in future I respectfully suggest that he be more conversant with the facts.

When a person from this part of the island is transferred in custody across this unnatural border into the Six Counties he must sit there, with British troops each side of him and listen to this Commission taking evidence. It is a very poor position in which to place an accused. It is wrong to say that that is fulfilling legal justice because the witness is present. Those who will testify on oath or otherwise, are people who are afraid and ashamed to show their faces. They go to the courts with hoods over their heads. British troops and British agents are in abundance there. The people would have no confidence whatever in that type of situation. It cannot work. There are decent men in the RUC, but there had been an auxiliary force there known as B Specials. They too would have been giving evidence. They had been discredited in the past. There are areas in the Six Counties where there is not respect whatever for the police or the armed forces. That is because they are not acceptable to the area and because the majority of the people there know that they are not getting justice. This is self-evident from the number of atrocities which have taken place, even in recent months, and the small number of people who are brought to justice or any attempt being made to do so. Yet, people have been interned in Long Kesh without trial.

These are things to which we must advert. It must be seen that we, on this side of the House, at all times come down on the side of justice, law and order. We know there has to be order. We believe in democratic Government and in democratic elections. We have, in the past if defeated in an election walked manfully across the floor of the House to take our places as the Opposition. We handed over a Government in tip-top shape to the Coalition on every occasion but we never got it back in the shape we handed it over. That is probably off the point.

It certainly is.

Unless there is some confidence in what a Government are trying to do, especially in a legal matter, they are doomed to failure from the beginning. Our learned judges and legal men, members of our Army and Garda may be asked to go into the Six Counties with a prisoner and listen to this sham trial. Because they do that, it will place them in an invidious position. It most certainly will not make them any more popular for the laws they are trying to adminieter in this part of the country. For that reason, too, I think it is wrong.

One must advert to the fact that on a recent occasion when the Fianna Fáil Government were in office, they had to bring in the Offences Against the State Act. If my memory serves me right, that Bill was fought line by line and section by section, right through the Dáil. Many prominent people—indeed many of them Ministers today—were very vigorous and very outspoken in their opposition to that legislation. It is well known that many of the people who led the opposition are now Ministers. I have not had the time to check up on what the Minister for Justice said and, being a neighbour I will be decent enough I will not include him in any way in this. Many Members on that side of the House who are Ministers now were very outspoken and denounced by bell, book and candle what Fianna Fáil were trying to do on that occasion.

It is amazing to note the change of heart. But it is for themselves to explain their conversion. This is bad legislation. The decent thing for the Government to do would be to withdraw it and put it into some pigeonhole, where it had been for the last six or 12 months. There is no harm in bringing it out like the butterfly and letting it flutter around for a while, and then putting it into the cocoon again to leave it over the winter. Per haps they might have learned something in the meantime. It does not serve any useful purpose at present. It should be put in the oblivion of limbo. The Irish people would not thank them for trying to pilot this through the Oireachtas.

Irrespective of what Government had been here, we have enacted reasonably good laws right down along the line, by and large, they have been highly respected. There is, even among people who have been sentenced, some admiration for the justice that has been meted out to them under our system.

It is wrong to link us with a system of justice that is operating now a few fields from where I live, the so-called British justice which is in existence in the Six Counties. I am surprised that the Government, especially a Government containing elements in the Labour Party in particular, who are nationally-minded, people who can think for themselves, would willingly be a partner to this kind of exercise. As the old saying says "If you lie with dogs, you will rise with fleas". If we are to be shoved in, our excellent code of laws and justice will be shoved in side by side with this despicable performance, known as British justice, that exists across the other side of the line. It will eventually drag ours down to the same level, and we certainly do not want that.

It is an undeniable, indusputable fact that over the last four or five years, and indeed over the last 50 years, independent journalists, commentators, independent visitors, legal men, neutral men, people of all shades of political opinion and religion who have come to this country and studied the system that operated in the Six Counties, are well aware that the system has been unjust for the last 50 years. The great British Empire stood silently by and allowed these things to happen. They poured in money to ensure that it would continue.

These are the people that we have in the Court in Strasbourg. Accusations have been made against them— accusations of torturing prisoners when in custody, having them hooded for hours and subjecting them to all kinds of abuse, verbal and otherwise. That is the Government who framed the laws now operating in the Six Counties. They cannot pass the buck and The Six County Parliament did that say: "We were not a party to that. or somebody else." We have a supreme Parliament and can legislate for ourselves. We have not to ask the British Government what laws we will pass next. But the British Government themselves are solely and totally responsible for the laws that operate in the Six Counties. If atrocities are taking place, if people are being murdered, knee-capped and shot, the prime responsibility rests on the table of the British Government and on nobody else. They have thousands of troops in the North of Ireland. They have all classes of spies, SAS and various breeds of people there who are harassing the native population. They have been doing that openly for the last four or five years, and the British Government have watched. They known as we all do, that people were take from their homes and shot. That is not much consolation to Michael Holland, the man whom the British Army shot in cold blood. The justice in the Six Counties made a laughing stock of his father when in court the people who committed this terrible crime walked off scot free. That is just one of the many cases. We all know of the Four Square laundry van, the people going around pretending they were laundry men and so forth. There are hundreds of other people shot here and there.

That is British justice. There is no point in the British Government saying to our Government: "You have people at large down here." We may have, but at least we have an elected Government and an Army of our own. We have gardaí who are doing an excellent job. But the British have thousands of troops in the Six Counties. Many of the people, indeed I am sure 99 per cent of the people, who are involved in this are not from here but from the Six Counties, and the British Government know this but are pretending that we are responsible. They ask why do we not do this and do that. This is an old game of theirs and it deceives nobody, certainly not the majority of the people of this country.

The best thing the Government could do with this Bill would be take it outside, dig a hole and have it interned because it serves no useful purpose. If we had a Council of Ireland or an all-Ireland court there would be some sense in it. It will be no good to have Ministers standing up and asking people on this side if we are in favour of murders and knee-capping. That was a sleek performance from the Leader of the Government. It would be an education for him if his memory is lax, to go back to the Dáil Debates of 1972 and see where his colleagues stood as far as the Offences Against the State Act was concerned. We on this side of the House have always been on the side of law and order. We deplore these murderous tactics here, in the Six Counties or anywhere else. We do not condone it in any shape or form. It has been a fundamental aim since Fianna Fáil was founded to try in every possible way to bring together the people of this country by consent, and not through any acts of violence.

We got a lecture from Senator FitzGerald. He sounded like a missioner talking about morals. He was talking down to the ordinary people on this side who he thought may not know much about this Bill. He may be right as far as legal matters were concerned, but fundamentally we are dead-on as far as understanding what was contemplated in it. There is no need for him to give lectures to us as far as our behaviour is concerned in order to ensure that there would be law and order and that we will contribute to the best of our ability to see that law and order is maintained. As I said at the beginning, this was part of the Sunningdale package. This is why this exercise was thought up in the beginning. Because Sunningdale failed, it was pigeonholed and left lying.

It is interesting to notice that the Government have again brought out the Bill. There is nothing in it. It is about only 1 per cent of the Sunningdale Agreement. It is the peelings of the potato, if you like and I do not think there was any need to introduce it, especially as the Sunningdale Agreement failed.

After the conference of Irish, British and Northern Ireland representatives, held in December, 1973, the Leader of the present Government said on that occasion: "None of us has compromised and none of us here has asked the other to compromise on basic aspirations." We are asked in the Bill to condone and help the British to maintain their idea of law and order. Our legal men will be asked, according to the Bill, to sit on the same benches as the British and listen to British soldiers with hoods over their heads giving evidence. They will be unrecognisable to the man in custody.

If this type of exercise is pursued it will eventually mean that people here will be drawn into it: our Army and Garda will lose respect and it will do untold harm.

We had trouble in this part of the country in the past but we, on this side of the House, have always striven for a united Ireland by consent. Since we came into Government we have been frank and open with the people. If unpopular decisions had to be made our party when in Government manfully made these decisions, be it the increasing of taxation or enacting laws for the safety of the country and the preservation of law and order. We have never shrunk from that responsibility. Many times we have been opposed but we have never gone behind the backs of the Irish people to push forward legislation. We have never made secret agreements. We did not declare republics far away from home. We had our discussions in the open forum of Parliament. We put our propositions before them. If we felt they were for the good of the country as a whole we stood firmly behind them. If we were defeated in Government we walked manfully to the other side. We handed over to those who took part in a Coalition Government a country that was advancing and prospering and in which there was law and order.

I join with Senator Dolan in admitting that I, too, know my limitations in this field. I, too, will not enter into the complexities of the legal situation. I will not try to imitate the intellectuals.

There is a saying in Dublin pubs— it is often used jocosely and I hope people will take it correctly when I say it. If two people are arguing in a pub and one happens to be cleverer than the other, some wit or wag usually makes an excuse for the other fellow by saying: "Every cripple has his own way of walking." That is the way I propose to deal with my contribution tonight.

I agree with Senator Dolan's remarks concerning the soldier who shot the innocent person. I also agree with his remarks concerning the disgraceful behaviour of the judge who should have sentenced him in accordance with the gravity of the crime. That is a little selective because, apart from those two deeds, there have been 74 people killed either by sectarian assassinations or by fellow-Irishmen because of a conflict of interests within their own particular groups. To look at the situation objectively, it is not enough to select something out of the air and ignore the other existing problems. Anybody on any side of the fence who carries out these killings, be he a UDR man, or among the people who committed the horrible crime in Tyrone, or the person guilty of the incident which afflicted the Melia family recently, or someone in a paramilitary organisation is actually a murderer. If people. set fire to a place in pursuit of their own aims they are arsonists. It is not possible to pick out one item and give it as a reason why we should hide or shelter people who commit crimes. The Senator's argument therefore is rather unfair even if made in all sincerity. It is a very narrow concept of the matter.

I do not think the Criminal Law (Jurisdiction) Bill is the means of uniting the communities in Northern Ireland but it is one of the many steps that should go a long way to indicate our sincere intentions on the question of making available effective machinery. It will help them to realise that, while we condemn all acts of violence, violence sometimes claimed to be carried out in the name of the majority in the State or supported by the wishes of the majority in the State is not desired or approved by them and that is, in fact, abhorred by the majority of our people.

The Bill demonstrates that we recognise the fundamental concept that the loyalty of man must be to mankind. The principles of loyalty are not observed when we close our eyes to the means that can help relieve the continual stress, agitation, coersion, confusion and intimidation our fellow-Irishmen are subjected to. From time to time, they are subjected to living on tranquillisers, barbiturates and are undergoing continual stress and worry.

We can demonstrate to our fellowmen that we really care by taking any reasonable and realisable steps that would be of assistance to those people who are broken in mind and spirit and are victims of circumstances. Some years ago one would come under the task master's whip but when one is exposed to situations which exist in the North of Ireland one is exposed to the whip of circumstances. This is done by imposing terrorism on innocent people the majority of whom have to remain docile because of the intimidation and threats which surround them.

This Bill will not solve all the problems or even half of them, but it is one of the many initiatives that will resassure the silent majority, those to whom I referred to as docile, who are enslaved by the fear, worry, hate and anger that surrounds them and who are becoming cynical about any offers of aid. We recognise that the majority are docile through circumstances imposed upon them by the few who have no political mandate and should, therefore, get no political support from any side of the House.

It can be brought home to them by this Bill that those of us on both sides of the House with a political mandate and who represent the majority viewpoint are responding to their cries for help and their consuming desire for peace. We are doing so by bringing in this type of legislation, limited though it may be in the total situation.

The Bill may be unpalatable to many people. The Senators who have spoken so far have differed only in approach, advancing the arguments that the timing is wrong, that the spirit of the Sunningdale Agreement has been departed from or that, because the balance of the Sunningdale package has not been fully realised, we should shelve this legislation. I can only say to them that these are not reasons why we should shelve the legislation. If someone comes or goes across the Border and commits burglaries or arson, subjects people to fear, terrorises families, kidnaps or robs families or does any of those actions effecting the health, welfare, security and the liberty of their fellowmen, it cannot be right that because the Sunningdale Agreement does not exist any longer you should not have some legislation to deal with him.

The argument is advanced that some political event which has not yet been accomplished or has not yet arrived—I am referring to the Convention—is a reason why the legislation should not be introduced until after that political event. Then we would be embarking on the dangerous game of delaying tactics, thereby leaving time and room for further acts of terrorism and the means whereby the doers of evil deeds can find refuge on this side or the other side of the Border for ever and a day and possibly never be brought to justice.

I believe that the Bill cannot be applied in retrospect—I shall explain that term later. Therefore, when the legislation is passed by the State and the British Government introduce their Bill which reflects all that is embodied in the Bill before us, we shall not see a situation in which every suspect of past deeds is harassed on a daily basis. The Act will come into operation on whatever day the Minister for Justice may appoint by order and he so states in section 22 (2).

In the Northern Ireland situation we have political parties advocating various constitutional policies, such as the restoration of the Northern Ireland Parliament with greatly increased or, in some cases, diminished power. We have people who follow constitutional policies, seeking direct rule from London. We have people who follow constitutional policies seeking a United Ireland or a federal Ireland. We have people who follow constitutional policies seeking an independent Ulster. When you look at the extent of those forces, there is a tremendous, divided potential within those groups I mentioned. When the minority of the community is divided over so many different constitutional preferences, it must be realised that nothing is held together by an overall loyalty. Therefore, to try waiting for the time to be right could leave a long period in which, if there is a vacuum created, more conflict is always a possibility and we would be contributors to that situation.

Whatever hope we have of trying to circumvent that possibility, it must lie in an initiative that satisfies all those engaged in that variety of constitutional policies. Let them see that we have the will to take that kind of action on a reciprocal basis to ensure that their pursuits through constitutional policies will not be impeded by those who favour imposing stress, conflict and confusion on the people who support the constitutional approach. That is not a case made in support of the UDA, the UUC or anything else. There is no point in saying that we are rushing the Bill because that just means that we should embark on some sort of delaying exercise and we would never get round to the Bill.

I believe we should embark on the exercise that will avoid placing the people in the various categories I spoke of, who are engaged in this variety of constitutional pursuits, in an awkward position. If there is nothing there to show that there is a genuine desire to co-operate with the people in the North to bring stability, security and peace to the community, they will be in an awkward position.

If we do not want our fellow Irishmen exposed to the pressures of the bomb and the bullet indefinitely and if we are serious in our intent to work closely with our neighbours to see that the wicked occurrences that have terrorised them in the past can be dealt with in a more effective and a more satisfactory way, then this Bill represents a genuine and a wholesome desire.

There may be arguments about whether the people apprehended and taken to court or subjected to crossing the Border to listen to evidence and not protected, but we will deal with them later on. I am satisfied that all the protections are there. I had one or two reservations but I shall speak about them later on.

I believe the Bill to be constitutional, not because I have a great knowledge of the law but because, as a constitutionalist, as an ordinary guy, I know that even to allow a football club to function correctly, there must be rules, co-operation and, above all, there must be loyalty from man to mankind. Therefore, if we are going to claim that the people in the northeastern counties are our fellow citizens, I believe that we have an obligation to draft rules.

For the purpose of making this point, I describe the Bill as a code of practice and procedure and principles that will assure them that we are genuine in our concern to see that the people who are prepared to pursue constitutional policies realise their aims and will not be ignored and that the objectives which are inherent in the Bill are not put there just for the sake of pleasing any particular side. It is aimed, in the broadest sense, at bringing about a code of practice, procedures and principles to be applied to all offenders, whether they be members of the UDA, a soldier killing a man in a field and getting away with it, whether it is those who blew up people in Tyrone or whether it is one of the para-military organisations assassinating another person or whether it is a matter of common law that is at issue.

This is what we must demonstrate, and I feel that the Bill is a step in this direction. I am quite satisfied that the majority of the people in the country would have no hesitation in backing this legislation. I mentioned earlier on that the majorities tend to be docile in the case of the Northern Ireland situation. I said it was because they were intimidated and have fears for their own safety and for the safety of their families and were involved in a very emotional situation.

On the other hand, apart from conflict or anything else, majorities in other situations, even in the South of Ireland, can be docile. Therefore, when they cast their votes and place people in authority to govern on their behalf in between elections, they expect a few—and the Government are the few—to act on behalf of the majority. I feel that the people of the State would have no hesitation in supporting the principles, practices and procedures laid down in this Bill and would recognise the aims behind them.

I do not think they would take the narrow concept that somebody on the one side did something in the North but because the Sunningdale Agreement has failed nothing should happen in respect of law and order or in respect of securing the safety of society or of the people in Northern Ireland. I am quite satisfied that they would feel that, even though it is not as imminent as it seems in the North, there is the danger of a spill-over of civil war. People here would believe that whatever threatens people in other parts of the country obviously threatens them also even if nobody had crossed the Border and placed a bomb and if 28 people had not been killed. Consequently, they themselves would want, even if they might not express it very vociferously, any responsible Government to take initiatives and to design an approach to seeing that people who commit murder, arson, burglary or any other offence in the North or South of Ireland cannot be harboured or sheltered and that we cannot say to the people that Sunningdale is gone and therefore it does not matter about the murder, the bombing or the 74 people who have been killed, or that it does not matter about children being maimed—let the situation continue: nothing will happen to us. That is not the way the people think. They need courageous leadership.

I am not suggesting that anyone is trying to curry favour with any of the paramilitary organisations. If there are any such persons it should be known that they hold no brief for the Labour Party, Fine Gael or any other constitutional party. They have no time for Fianna Fáil, Fine Gael or the Labour Party; no time for anybody who follows constitutional means. No matter what you say or what you put on the record that situation will not change. They have set themselves up as the judge, jury and executioners. They do not hesitate to mow each other down in pursuing their own game.

I do not think they will think any the worse of me for being blunt and frank about the situation than they will of somebody debating it here in the Seanad and saying if you do not agree with this approach but there could be another one. Whether there is a good argument for the type of approach or not I am not going to make a case against it. I believe that this is a good approach. It is one of the initiatives that is very necessary. It has deterrents naturally, embodied in it. I use the word deterrents—perhaps wrongly—because all that the Bill does is to pursue a course of action which seems to have been accepted as the norm in many countries. The Minister outlined this in his introductory speech. I cannot explain it in the complex way that he did. "Deterrent" is probably not the proper word although the effect would be deterrent and therefore desirable.

The paramilitary groups are not interested in how we bring in laws. If it will impede what they are pursuing and prevent them being harboured, if it will affect the continuity of their campaign, if it is going to affect the off-shoots who are now engaging in a great deal of gangsterism and have nothing to do directly with the IRA or their objectives, or the UDA or their objectives but are splinter, fall-out groups who have now engaged in organised crime in many areas of Belfast, they do not care about the constitutional approach. No matter what approach is made it will be the same and they will not raise a cheer in your favour even if you got your way in arguing that another approach should be tried. It is futile to talk about the approach.

In the various groups who are divided by their constitutional policies there is inherent a situation of constitutional preferences. In a way, this is the greatest of all divisions. The divisions of the paramilitary groups and others are very serious and harmful. But this is a tremendous division. There is no loyalty of man to mankind in that situation. Since there is an absence of this unity on the issues where unity is required or where they are required to act as a responsible community, the main issue in this respect being the collective rejection of violence by those to whom I have referred as following the various constitutional policies, the collective acceptance of non-discrimination and the collective agreement by those following the constitutional policies to accept the right to peacefully advocate political change, including changes in the Constitutions of Southern and Northern Ireland as expressed in the political policies either in Northern Ireland or elsewhere, there seems to be little hope of unity.

Since I heard the Convention 'phone-in I am satisfied that the possibility of realising unity on those issues is not close at hand. There are clear divisions, and I believe that this makes the Criminal Jurisdiction Bill all the more important in that it, in itself, running concurrently with the British Bill, will demonstrate that there is a common concern for the elimination of violence and that if the respective Governments will go so far, this should be an incentive to those seeking political solutions to work hard to see that there is no breakdown in their constitutional approach and that there is little excuse left to those who are using constitutional policies for failing to condemn the paramilitary organisations or to follow the constant approach, without flexibility, towards the other groups advocating constitutional policies. If the reciprocal Bills became effective, then the charge or allegations often made, quite wrongly of course, that we do nothing in this State to help to bring to justice those guilty of personal violence, will no longer be tenable. The Bills when enacted will put it up to them to "put up or shut up".

I know the proposed Convention is designed to produce a type of Government. I know that the purpose is to try to arrange the form and nature and structure of Government. I know that there is a barrier there to power sharing, but I believe that this type of initiative, when it can be shown that there is a reciprocal approach on the question of criminal jurisdiction, is something hanging over the heads of those who are against power sharing. Those people, the UUUC and other groups who are completely opposed to the power sharing ideal, will be forced through a set of circumstances to realise that if there is no power sharing they are heading towards greater, if that can be, direct rule. If this Bill is allowed to work and if people are sincere and genuine about it—if we ourselves do not haggle too much about it—it may be the first of possibly many more incentives that are needed to show that these people are on their own with regard to the question of power sharing and that, whether they like it or not, power sharing is something that the British Government have got in their minds. Further, if they do not take this as an incentive and take the example from the co-operation shown by the reciprocal arrangement in regard to the Criminal Law (Jurisdiction) Bill, the question of power sharing is not the only thing that will be there, but the Irish dimension may become something more positive. That is something that they might not desire.

I merely say that in the context of saying that the co-operation between the two Governments on this legislation can be a kind of a whip to urge people towards the type of Government that will allow for a substantial degree of power sharing in the interests of the community as a whole. Possibly one of the fears that will drive them to it is the question that, if direct rule becomes the total thing, then the Irish dimension cannot be delayed as long as they themselves would like to delay it.

Perhaps there is a little bit of paradox in that kind of an argument. On the one hand I am advocating this Bill as an incentive to induce power sharing and to steer people like the UUUC towards it while at the same time I am making the point that the other reason they might go for power sharing would be the knowledge that in a direct rule situation or a more direct rule situation, the Irish dimension would become much more of a possibility. I think it will become a possibility anyway. I feel that the UUUC people might see some value in moving towards power sharing in the first instance and using some delaying tactics on the question of the Irish dimension. But it will not be forever and a day. The same type of initiative that will induce that kind of co-operation can be introduced at a later stage under some reciprocal arrangement that might steer them towards the question of serious consideration of the Irish dimension.

As I implied earlier, I was pleased to see that we were all at one in this House on the need to devise means whereby all Irish people can be guaranteed security and liberty. There was, however, a difference on the question of approach. Senators Robinson and Alexis FitzGerald had a good exchange on the legal aspects of the Bill I do not intend to go over that ground. Quite frankly I think I might get stuck in the mud if I tried to. But I would submit that, if there is sufficient provision in the Bill—I believe there is—to ensure that the individual rights of accused persons and of witnesses are adequately protected, then it would have to be proved by those opposing it that the approach on the use of the suggested code or practices, procedures and principles contained in the Bill, will not protect those individual rights. I do not think that can be proved— I do not think this case has been successfully made.

Coupled with that, the legal profession interests, to me, also seem to have been asserted in the Bill. I feel quite satisfied that to meddle with the contents would lessen its effectiveness. After all the purpose of the Bill is to be effective in all ways that it is meant to be effective and not specifically confined to the rights of the legal profession or to the rights of the accused person or to the rights of witnesses, but also to the rights of our fellow citizens in the State and in the North. To weaken the Bill in any way would be to interfere with its design, which is primarily to deal with the fugitive criminal who wants "to do a job" and then find refuge by claiming exemption on political grounds. There is a bit of the devil in all of us. If it was not for impediments that the rules of law place on us a lot of us might well be very tempted now and again to attempt something illegal. This Bill provides impediments to the activities of the unscrupulous and ruthless people who place little or no value on human life and who have no regard for people's rights to live in peace and security.

As I said earlier, we would all do it if we were told we would get away with it and they will continue to do it if the Criminal Law (Jurisdiction) Bill does not assert rights by clearly defining what is and what will be illegal, after the Minister makes the order for the Bill to come into operation, clearly defining the practices and procedures to be employed, by clearly defining the principles that are at stake and by clearly spelling out individual rights, by responding to the great yearning for peace and the desire to see peace in all countries. These are the things I feel that the Bill sets out to do. I think it has succeeded.

There are some areas of concern I will touch on quite soon, but for the moment I want to stress the question of what the purposes of the Bill are. It is not designed to weigh down on the spirit of the people nor does it attempt to affect all the people by having tyrannical powers. It is not designed to subject people to cruelty of any description. On the contrary, it is designed to protect all those who are overhelmed by the oppressiveness of people who take on themselves rights to judge their fellow humans, to decide the punishment and to coerce the community by using those tyrannical methods. There is no room for oppressive activity in the trade union movement. I do not know where the unions have ever resorted to murder or to maim people. There is, of course, evidence of trade unions having to unite to defend themselves against tyranny in the past. That does not mean that they themselves went out to murder and to overwhelm people by their power and strength and back-up organisations and so on. They took action to defend themselves. I have no doubt that someone will talk about whether a trade unionist should advocate what he would consider oppressive legislation. I do not consider this legislation oppressive in the sense of overwhelming people.

Perhaps it may be argued that there is an element of suppression in it. Most legislation has an element of suppression in it because the Government are there to govern. The Government, acting on behalf of the people, have to try to interpret the wishes of the people. In situations such as that a degree of suppression is necessary. For example, in this case it is necessary to assist in putting a stop to activities that offend against common law and which are not being pursued with the consent or at the wish of the majority of the people in the State or in Northern Ireland. Those activities have to be discouraged no matter how unpalatable or unpopular the measures embarked on to do it may be.

Except for some small amending legislation, there is an element of suppression in most legislation. It is not generally suppressive but has an element of suppression in it. These activities have to be discouraged and tackled with a view to putting them down. It is in this context that I speak about them being suppressive. After all, why should you not put down murder, arson, burglary or anything of that kind by a legal process or by the power of Government, so long as it is done in a way that it is brought out into the open and people have an opportunity of discussing it and it is not brought in in a totally narrowly autocratic way? Believe me, this Bill is not being rushed—I am in no hurry about it nor is anybody else on this side of the House. I do not think the Minister set out to put any degree of urgency in it either.

You never know, yet.

Judging by that——

We used it before, not in this one but in another one.

You never know.

We had an axe swinging performance——

When you do not know, it is not too bad because one can live with situations much better.

While you are at it you might perhaps address the Chair on the Bill.

My apologies. This legislation is being introduced because the majority rule, because the majority depend on the few who would expect an initiative to put down activities that are harmful to the whole island. This is the context in which I speak about a degree of suppression being necessary. The majority would also wish that in drafting legislation aimed at putting down those activities the Government should have regard to the rights of people who may be subjected to the application of this legislation. I feel the Bill does both, and one need not apologise for doing what one believes to be the right thing.

I believe if there is an element of suppression in this it is necessary and I believe it is embodied in most legislation. It is embodied in drawing up the rules of a GAA club, agricultural or any group interest, because if one did not tell people they could not do this, or put them down when they were trying to do something or had not got the means to do so, then we would all have a hooley. Any organised group interest who have legislation that refers to what they can and cannot do lives with a degree of suppression to keep their interest from jeopardising the welfare of other sections of the community.

Is the Senator seriously comparing the Offences Against the State Act to a GAA club?

I have said I am not a very clever man.

Stop that codding. It is the first time the Labour Party have found themselves doing this in 50 years——

I am a very innocent chap. In talking about trade union legislation, even the Protection of Young Persons (Employment) Bill, we have asked for some elements to be put into it to force employers to do what they ought to in the interests of workers. This is an element of compulsion that puts down the desires of the unscrupulous people who do it if they please. Perhaps there is also an element to check and restrain people written into this Bill. I would again use the word "deterrent"—whether it is the correct word or not I do not know how laws can be made without having an effect on the life of people. Perhaps Senator Browne will explain it to me and then I shall be wiser.

While I abhor violence, I understand that it takes the form of protest in the first instance and that it may be abhorred by the person committing the act. He or she may then gradually tolerate it and finally begin to embrace it and it becomes a way of life. At the end of that particular type of process lies the problem. The type of persons the Bill is largely concerned with will have fallen into the latter category. They will have reached a stage where violence is embraced by them and pay little attention, regard or concern to those who live in daily dread of what they fear will come upon them. Do they have any concern for the disastrous consequences for those people, their families or the society they profess to be defending. This attitude is equally true of the person who assassinates on a sectarian basis. It is equally true for the people who maim or murder members of para-military groups or of the person who uses a situation to cash in on some racket about which I spoke previously.

Possibly when I spoke earlier about the question of legislation not having retrospective effect I did not stress the point that I would not want a situation whereby people would grow in fear of their past; that they could never escape from some old criminal offence that if brought to light could bring about disastrous consequences for them or their families. That is not intended in the Bill although I have had some views put to me by workers that it was. That is not my view of what is contained in the Bill. The Bill is not designed for that. It is well to get that point on record because those who have not read the Bill are condemning it without understanding its meaning.

I am a little concerned for the witnesses. If some of them go across the Border and are handed over to the RUC—and here I agree with some of the people from the opposite side of the House—I am concerned whether the witnesses could not be exposed to the whims of members of paramilitary groups or even people with just natural grudges or friends of the people who are there to hear the witnesses. While the witness may be guarded in the sense of immunity from being charged with any crimes while giving evidence, who is to cover his rear when his evidence leads to further arrests and further vigilance on the part of the security forces? This is an area about which I would be concerned.

This is a very complicated piece of legislation, full of complexities. The introduction procedure was very detailed and perhaps I overlooked it in the process of trying to understand the Bill, but I would hope that when the Minister is replying he might be able to reassure me on the point that the witness is well protected. I know that the accused is fairly well protected but I am not so sure about the safety of the witness. The accused is protected in the sense that giving evidence is not a trial in itself and that when the evidence before the proposed commission comes back to the trial court it may not be admissible and may be declared irrelevant. I am not so happy about the witness and it would well be that I have not grasped the situation in reading through the Bill or the introductory speech of the Minister.

Today, Mr. Rees described the degree of violence in the North as being of a horrible extent. As I said previously, 74 people have been killed this year in the North. Perhaps we can take comfort from the fact that the reciprocal Bills will assist in dealing with those apprehended for molesting witnesses. "Molesting witnesses" is a mild sort of phrase compared with death or kidnapping. Anything is on the cards when a witness is exposed. Someone may not like the answer he gives.

Too much cannot be expected from the witness in the sense of taking comfort from the fact that if he had been caught by his assailant he would have been dealt with very severely. It is no use telling the witness that some guy might do him some damage. He cannot be told when he is dead, of course; this can only be passsed on to the widow. It is not much good telling him that the authorities will catch the person who shot him or who maimed him badly or hurt his family. First of all the person has to be caught. That, in itself, will not be an easy task, even though I believe the means and the will are there now and that more crimes will be brought out into the open. Perhaps the Minister could allay my fears and the fears of others in this respect.

The problem with the political policy in the North is that the Trade Union Congress went out of their way to try to encourage people in the North to embark on certain political policies. It is not the job of Congress to lay down the political means by which a country should advance. They went out of their way to produce the political policy document in the North because they felt it affects the economic and social welfare of the community. They believe the present situation will not be changed as long as people do not condemn discrimination, as long as they do not come together and abhor violence, and as long as they do not agree to power sharing, as long as they do not accept the right of people to pursue peacefully and in a constitutional way whatever policies they wish to advocate in respect of changing the status of Northern Ireland or the Republic of Ireland.

Congress have recognised that as long as people do not do these things it is difficult for the other people in the North to relate to them. They laid down a lot of guidelines. I will not read right through the guidelines, naturally, because the Cathaoirleach might be displeased and I certainly shall not risk that displeasure for the second time. I would advise people who have not read it—The Political Policy in Northern Ireland—that it is a very good document. The people who drew it up are concerned with the days ahead.

Earlier we had Senators speaking about the European Convention on Human Rights, and that this Bill was departing from that. There were other declarations, one by the General Assembly of the UN:

The General Assembly of the United Nations proclaims this universal declaration of human rights as a common standard of achievement for all peoples and all nations to the end that every individual and every organ of society, keeping this declaration constantly in mind, shall strive by teaching and education to promote respect for those rights and freedoms, and by progressive measures, national and international, to secure the universal and effective recognition and observance, both among the peoples of the member states themselves and among the people of territories under their jurisdiction...

The sentiments and the spirit of that cannot be realised, no matter whether the people make the argument that it is a political situation or anything else, where the whole nation is practically living in fear. Many of the people living on this side of the Border who, perhaps, have not yet been affected by it, have many friends in both the North whom they cannot even make contact with because of the situation. I myself have friends in both Catholic and Protestant areas. I cannot renew that bond of friendship and discuss things with them.

Therefore there can be no educational process through dialogue, there can be no effect given to the spirit of this declaration by the general assembly to let people understand us and us understand them, and to help us to strive towards the economic and social aims that are desirable in the interests of all the people.

I do not intend going through the book but I think the following articles are worth quoting: Article 3: "Everyone has the right to life, liberty and security of persons". Article 4: "No one shall be held in slavery or servitude". Article 5: "No one shall be subject to torture, to cruel, inhuman or degrading treatment or punishment". Each speaker made some reference to violence, either mental or physical, to fear, hate, anger, jealousy, cynicism. Reference was made to all of those in one way or another, perhaps in the wrong fashion, but generally that was the way it came across. The exercise of the right to protect life and liberty and to give people security is what this Bill is about.

As I said earlier that people are no longer under the task-master's whip, that they were under the whip of circumstances, and that to some extent is a task-master's whip as well. There are thousands in slavery through being brutalised and terrorised and discriminated against. This is done not only by one paramilitary organisation but by many of them. I do not think any one of them, Catholic, Protestant or otherwise, would not condemn murder and arson, or somebody terrorising people or blowing the head off someone. I condemn those acts and make no apology for condemning them, and I do not think any of my trade union friends would condemn me for that. They might say there was something in the Bill that was not very satisfactory from all trade union points of view. I have not been able to find anything unsatisfactory, but perhaps somebody will point it out to me later on.

In my experience in the trade union movement, there is no trade unionist who would deny the right of a Government or a properly constituted body to take any initiatives that would lift people out of slavery or servitude. Consequently this is a declaration of rights, and I am satisfied that the Bill makes an endeavour in that direction; whether it succeeds or not is another question. It also makes the endeavour to satisfy Article 5, that no one shall be subject to torture, to cruel, inhuman or degrading treatment or punishment. But this is what is happening. If one comes into the Twenty-six Counties and places a bomb, then somebody's mind is tortured. The deed is cruel and inhuman. If kneecapping is inflicted on someone, this is degrading treatment and punishment. To my mind the terms of Article 5 are conceded in the Bill. Hence I can find little argument to show that the Bill is not well designed to serve the needs of the majority of the Irish people.

I can find little support for the view that because the Sunningdale Agreement has collapsed we should not think in terms of taking a course of action that would bring the justice people who presently enjoy the shelter of ordinary law-abiding people who are free to live in their midst and at the same time if they fell like it take up arms, commit a foul and hurtful deed on either side of the Border on their fellow Irishmen. To support the point I made about the Sunningdale Agreement I would like to quote from the leading article in today's Evening Herald:

It is so easy politically to rush into things. Even easier is whipping up support for an emotional response to anything involving Anglo-Irish affairs.

The article says that both factors are swinging to the back of the Criminal Law (Jurisdiction) Bill and goes on to say that with Sunningdale in ruins, it is easy to mount a case to justify a refusal to bring in the Bill. It also says that is not sufficient reason for evading the measure, and this is part of the point that I have been trying to establish throughout the contribution I made. It may have been a little bit sketchy and patchy but I hit on it quite a few times, and I took my notes before the editorial comment came out. I was pleased to see that someone is in agreement with me. The editorial comment continues:

We have already condemned the appalling murder of the McKenna brothers and their sister. We have pointed out the disgraceful bias of the main BBC TV news on the dreadful event. The have expressed disdain for the loathsome attitude of British soldiers at the scene.

I would support that point of view in toto. It is no great secret that I am an ex-British soldier. If I do not say it somebody else will say it. But let me say that I was a pre-war soldier.

Whilst I have something in common with the British soldiers I certainly would not support some of their actions. The soldier who took the lad out into the field and shot him literally got away with murder. I would hope that the contents of the Bill would be sufficiently far-reaching that evidence could be gathered to get a conviction in that case. When the two Bills are running concurrently, whatever might have happened on that occasion, it might well now, because of the reciprocal approach, be drawn to the attention of the British authorities that such machinery is not acceptable at this side of the Border as a fair and just means of dealing with soldiers when they step out of line. I quote again from the Evening Herald:

We have repeatedly criticised the one-sided activity of the British Army and RUC in Northern Ireland. On Saturday there was a perfect example of this. Orangemen were allowed prance through Belfast while the British Army beat up Catholics.

We are well aware of the fact that the Loyalists killers of Tyrone are bold and able to hob-nob with the RUC and UDR.

They condemn all of that and then continue:

Yet even all this does not justify a move to cancel the Criminal Jurisdiction Bill. Those who seek this (know it or not) are condoning murder in the same way as those they denounce in the Loyalist camp.

On the one hand, it is not possible to be selective and pick out one specific instance as a reason for not embarking on the legislation. The extent of the crimes vary from murder to kidnapping, burglary, and so on. If we are selective we can take the Bible, extract little pieces out of it, write our own Bibles, and we all have our own religions. In that sense there is no real support for the argument saying: A British soldier did this, a UDR man did that, a Loyalist did the other, and as a result we should continue to harbour people who commit murders and slip across the Border to hide or vice versa harbour people who go across the Border and perform some foul deed and then come back here and be congratulated for doing it. Murderers cannot be harboured in the Republic. The Government and the Opposition have a solemn duty to devise legislation to deal with these murderers. I do not believe in revenge. I do not believe the Bill is revengeful in its meaning or its purpose. It is a genuine attempt to catch people who are evading being brought to justice by pleading political exemption. There was a time when I worried that we might get too much of a hang-up over the IRA and forget the other people, but I am glad that is not the case. This article in the Evening Herald exemplifies this:

Because of the uncivilised behaviour of the UDR, the UDA, the RUC and the British Army, there is no reason why we in fact should not embark on legislation to bring people to justice who should in fact be brought to justice.

It is true that murderers can be sheltered in the North within the paramilitary groups. It will not be possible to root them all out and bring them to justice. People who commit lots of other crimes will also not be able to be brought to justice, but because it is not possible to arrest everybody is not a good enough reason why we should not catch as many as possible. I am sure some goal would be achieved. There would be a considerable number of people who should have been apprehended and who would be brought to justice. Whether they were British soldiers, IRA, UDA, Provisionals, Officials, or people who make themselves into Chicago-style mobsters, is immaterial. There is no reason why we should make the excuse that because it is not possible to apprehend offenders up there, it is alright to continue to shelter people here.

I am satisfied that the Bill is designed to restore the rule of law. I am convinced that this Bill bring about more convictions. It may not be the answer to all of the North's problems. It is a long way off solving the difficulties that lie ahead. But it is a step in the direction of bringing some orler into a community that is bedevilled by intimidation, coercion and torture. They are in a situation where they have to relate to the people who use strong-arm tactics and who have the power and the guns to enforce the wrong thinking on people. Out of fear a lot of people will be obliged to resort to them as people who are protecting their interests. It has gone on for nearly six years now. Everyone is sick and tired of it.

I am not saying that those who agitated for civil rights are the people who joined in it, that they were wrongly motivated. The Bill is trying to show the proportions to which that has grown so that some order and civility may come into the lives of Irish people. We can do it in a way that is not revengeful and in a way that will show the people on both sides of the Border that there is hope and that security and liberty can eventually return, that people in the South choose to cross the Border and commit any act of arson, bombing, burglary or any act of intimidation, the means are there now to pursue them more vigilantly and to bring them to justice to pay for their crimes.

The Criminal Law (Jurisdiction) Bill is an extraordinary piece of legislation to be proposed by the Government at this time. It proposes to extend the criminal law of the State in so far as it concerns certain serious offences committed in Northern Ireland. Certain sections of the Bill create new offences, give further powers of arrest without warrant and increase the maximum sentences for certain criminal offences. We are all aware that law enforcement was an area of discussion at the Sunningdale Conference; hence the Government undertook to set up the Law Enforcement Commission, no doubt in an effort to improve North-South relations to appease the British. All of us know how seriously they took the Sunningdale commitment. What the Bill, if passed, will do will be to ease the pressures on the Northern Ireland authorities and take on ourselves the responsibility of dealing with the results of their blatantly unjust and misguided 50 years' rule.

While I would never condone the terrible crimes committed by the extremists in the North of Ireland, it must not be forgotten that their claim is that they act in the name of the community, the community who have lost all respect for the law in the persons of the police and who do not feel they have been meted out justice.

Does the Senator say there is any validity in that claim?

No, if the Minister noted my words, I said that their claim is that they act in the name of the community, the very same community who have lost all respect for the law in the persons of the police and who do not feel they have been meted out justice in the administration of the law. Would the Minister agree to the validity of that claim?

It would be difficult for the Minister not to agree. The climate of mistrust and despair is further aggravated by the harassment, inhuman behaviour of the security forces whom our Irish Government brought before the European Commission on Human Rights on charges of torture. That is why the Minister could not disagree with me. I am surprised that he should have interrupted me. I hold respect for the Minister, as I do for all Ministers. I believe that he believes that he acted in the best possible way since he became Minister. I must accept that he believes he is doing the right thing in this Bill. I must also accept, having studied the Bill and heard the arguments, that he has been completely wrongly advised about this. I have already referred to the charges of torture that the Irish Government have brought before the European Commission on Human Rights, and yet if this Bill is passed, the Twenty-six Counties will be put in a position of having to accept evidence from members of the RUC and people associated with them who have obtained the same evidence under circumstances which the Irish Government have already complained about. Would you accept the validity of that?

I do not. That is completely inaccurate.

An Leas-Chathaoirleach

The Senator should address his remarks to the Chair.

I was surprised that the Minister should have interrupted me. I was not satisfied. I believe that all this Bill will achieve will be to bolster up and extend this blatantly corrupt system in the North of Ireland.

Would the Senator explain? I cannot follow this argument?

An Leas-Chathaoirleach

Would Senator O'Higgins allow Senator Hanafin to make his contribution?

I do not want to interrupt, but I should like to know the difference as regards evidence, whether North or South, between this and an all-Ireland court situation?

An Leas-Chathaoirleach

Senator Hanafin might respond to that in the course of his contribution. I do not want this to develop into a cross-chat between both sides of the House.

I think the question is too difficult to be answered anyhow.

I should be very pleased with interruptions from the other side. It is obvious that I am making points that are of extreme annoyance to the Leader of the House when he has to interrupt me in my contribution and he will concede that as I said, the Irish Government have brought charges of torture and witnesses in the North before the European Commission on Human Rights and yet, at the same time, if this Bill is passed, a court in the Twenty-six Counties will be put in the position of having to accept evidence from members of the RUC, the very people that they have complained of to the European Community on Human Rights.

A case might be made for an all-Ireland court. This would assume that certain defined principles of justice and conduct would be accepted on both sides of the Border and be backed by a bill of rights. Would the Minister accept the validity of that? The main objection to an all-Ireland court comes from the North. Would the Minister accept the validity of that?

And from our own Constitution.

I most certainly believe that it is unconstitutional and that when tested in the courts it will be found so, but besides being unconstitutional it is a bad Bill.

(Interruptions.)

An Leas-Chathaoirleach

Senator Hanafin should be allowed make his contribution without interruptions.

It is a very bad Bill and should never have been presented to the House. I have heard people on the other side, and Senator O'Higgins included, saying when other Bills were introduced—I seem to recall Senator O'Higgins referring to the Forcible Entry Bill as a bad Bill—and that they were bad, oppressive and so on. It is amazing how attitudes change when they become members of the Government Party.

Who brought in the Forcible Entry Bill?

But the Senator was making charges against that Bill. There were charges made against the Offences Against the State Act when that was brought in, and when the Minister for Posts and Telegraphs was in opposition he was vigorously opposed to that Bill. Now that he is in power and a member of the Cabinet, and can do something about it——

An Leas-Chathaoirleach

Let us continue on what is before the House, the Criminal Law (Jursidiction) Bill, 1975.

When he was asked what he intended to do about the Bill, he said "nothing, absolutely nothing at the present time". It is all hyprocisy. They come into the Seanad with a Bill which is the worst Bill ever presented to this House. I firmly believe that. I thought I would be able to make a good contribution without interruptions, but apparently that is not possible. The last speaker is a very decent and intelligent man. If he was not intelligent, he would not have held the respect of his trade union for so many years. I am fully aware of the respect that he holds and that is because of his intelligence. Yet he speaks on the Bill as if he did not understand it and wanted some clarification. Before he was finished speaking, it was a harmless Bill. He was comparing this Bill to a rule book in a hurling club. That is what he said. If I have quoted him wrongly, please forgive me.

Not in that way.

That is the way it sounded to me.

It was a GAA club.

I see he did not specify hurling.

An Leas-Chathaoirleach

Senator Hanafin should be allowed make his contribution without assistance.

Senator Harte spoke in a cautious manner for a very long time. I got the impression that he was under a strong whip to vote for this Bill, because he did not believe in it, as no man in the Labour Party should believe in it. I heard a remark passed earlier that for 50 years the Labour Party have been opposed to legislation of this type. Yet, because they are in Government, because they are part of this Coalition, they feel that all the things they have preached and said over the years count for nothing. At all costs they must put up a united front and keep this Coalition together. This is the only reason I can see that that poor honest man was put into a situation where he had to accept something with which he did not agree.

Senators from the far side have made their contributions. They made a gallant attempt. Some, I am quite sure, believed in the Bill. I am also quite sure that many of them did not agree, but they were accepting the whip. I refer my remarks to the Labour Party in particular. They have boasted for years of two names— Connolly and Larkin, the two greatest men of our time—and they are entitled to do so.

They were down around the Master Hospital some years ago looking after some patients.

I believe so. Let them examine the teachings of Connolly and the speeches of Larkin and ask themselves what they would do if they were here and this Bill was presented to them. I do not believe that they would accept it. I have lost faith in the credibility of the Labour Party, absolutely and completely. Perhaps I am moving into other areas now, but I am tempted to do so.

An Leas-Chathaoirleach

The Senator should keep to the Bill.

I am sorry I must leave the House but I must make an urgent 'phone call.

I hope you are phoning Senator Mullins. He will tell you what to do.

He will tell the Senator what not to do, which is far more important.

An Leas-Chathaoirleach

Could we have some decorum?

I agree with you, a Leas-Chathaoirleach. I am sure you are as annoyed as I am with the interruptions made while I was trying to participate in this debate. It is disgraceful.

We made reference to an all-Ireland court. The main objection to an all-Ireland court comes from Northern Ireland. It is naive and servile to expect the Irish people in the Republic to allow their courts to be used to interpret laws when they have no control or influence in the making of these laws in the domestic situation which exists in Northern Ireland. Would the Minister accept the validity of that?

That is a complete misunderstanding of this Bill.

That is my understanding of it. I have taken advice on it and am prepared to accept the advice that was given to me.

He is departing from the script.

I see. Senator Russell obviously feels, to judge by the smile on his face, that he has said something of importance or embarrassment. Maybe he feels that he is clever. It is a good thing to let people feel that they are clever at times. It has passed over my head because I do not know what he is talking about. He is referring to my script. I am referring to notes and have referred to notes. Does the Senator mean that I cannot speak without referring to a script?

I do not wish to interrupt the Senator.

You have already done so.

I shall not dwell any more on what he said. I am rather surprised that it should come from that Senator. The solution to the Northern Ireland problem will in no way be helped by this Bill. The problems that it would present to the people of the Republic would be dangerous. I firmly believe that and I hope that the Minister will withdraw it. Secondly, I believe that if it is presented to the courts it will be proved unconstitutional. This Bill must never become law.

I am sorry if I said anything to upset the previous speaker. I would not like to do that. I assure him that any interjection made by me was in no way intended to upset his contribution to this debate, which I regard as a serious matter. I hope he will accept that.

Contrary to some of the views expressed on the First Stage of this Bill, I welcome the opportunity given to this House to debate the merits of the Bill. I hope the Minister will not be disappointed in the wish he expressed in the course of his introductory remarks that the Bill would be debated in a calm and serious manner, and that those who were opposed to it would offer constructive criticism and give him the opportunity of replying in due course to considered views on this controversial Bill.

There is a dire need for the introduction of legislation which would bring to justice the fugitive criminal offender, North and South of the Border. Judging by some of the speeches made so far, one would get the impression that the Minister by introducing this Bill was assuming that all the crimes committed on this island were committed by people going from the South to the North.

As we know only too sadly, the contrary is just as true. If it could be proved to be a practicable measure, and so far nothing said by the Senators on the other side of the House has convinced me anyway, as I hope a reasonably open-minded person, there is a lot to be said, and I say this quite frankly, for the concept of an all-Ireland court. In different times, and perhaps in different circumstances, that would probably be the ideal solution to the troubles which we are trying to solve by this legislation.

I do not agree, having studied the situation to the best of my ability— and I am not a lawyer but a layman —that in present circumstances an all-Ireland court is practicable. Therefore, it seems that the Minister had only two options open to him. One was the unacceptable proposal that the laws of extradition be extended to include political offences. All Senators on both sides of the House would agree that this was not acceptable under any circumstances.

In fact I would agree with many of the arguments advanced from the other side of the House as being against the idea of any form of extension of the laws of extradition. It must have seemed to the Minister, that the only possible solution—I use the word "possible" deliberately— was some sort of extra-territorial jurisdiction that would firstly have the agreement both of our Government and the British Government that would ensure to the offender, on both sides of the Border, a fair trial. That is axiomatic to the success of the Bill —a fair trial to offenders on both sides of the Border.

Thirdly, a method could be devised that evidence could be taken on both sides of the Border. The method of taking evidence or the persons who would give evidence, has given cause for more heat and more objections than any other section of this Bill. I admit frankly that there is room for concern about the setting up of these commissions on both sides of the Border and the evidence that will be given before them, and even more so the persons who would give evidence before them. We have had, and I think very validly, examples given of what I might describe as British justice in the North, the activities of the British Army in the North, the UDA and what appears to us down here, from what we know of the facts, to be gross miscarriages of justice.

What about Stormont?

I admit all that. I cannot remove my own mind from the fundamental basic principle that something must be done to bring certain categories of persons to justice who are evading justice either by coming across the Border here or going from our side to the North. It would be fair to ask the speakers on the other side of the House, if they do not approve of any of the sections of the Bill, if they think that the mechanics of the Bill are wrong, to suggest some alternatives.

On a point of information, we opposed the Bill in its entirety.

An Leas-Chathaoirleach

Senator Killilea will get his opportunity to speak.

Why did the SAS not try it?

If they do not accept the Minister's invitation to suggest alternative, if they thought alternatives were more workable—assuming they accept the principle of the Bill which is to bring certain categories of criminals to justice and is basic to any argument here—if they do not accept the fact that certain criminal fugitive offenders should be brought to justice, then we are wasting time discussing this Bill. I accept that there is a consensus in this House. Notwithstanding what has happened North of the Border, particularly to the minority there for which we are all concerned, and if we accept that these people should be brought to justice, we should be discussing the means for bringing them to justice.

Senator Lenihan made I presume the attitude of the Fianna Fáil Party quite clear at the outset of his speech when he used the expression that the Bill was "unamendable" and that Fianna Fáil would oppose it line by line and that appears to be the attitude being adopted by these individual speakers. I suggest, with all due respect to the speakers on the opposite side of the House, that that is the wrong attitude. That is a most unhelpful and unco-operative attitude. What we in this House should be trying to do is to find a consensus, a basis, to make this measure, or a measure, or an amending measure, workable.

We are against the principle of the Bill.

Will the Senator repeat what he said?

We are against this Bill in its entirety.

I thought the Senator said he was against the principle of the Bill.

An Leas-Chathaoirleach

Senator Killilea please, order.

We are not here for lectures from Senator A. FitzGerald.

I appreciate that what I am saying is getting under the skin of Senator Killilea, and will get under the skin of other members of the party, but I will come back to it again. Are Fianna Fáil individually or collectively against the principle of the Bill? If they are against the principle of the Bill, which is what I am concerned about, we as a House of the Oireachtas are wasting our time. We say: "We are not concerned with bringing certain types of criminals to justice. We are going to oppose the Bill. We do not like the Bill. We are not going to offer any alternatives, we are going to adopt a completely negative and disruptive attitude. That reminds me of the advice given by the trainer of a football team more renowned for its vigour than the skill of its players "if you cannot beat them, eat them". That seems to be the attitude of at least some of the speakers from the opposite side of the House. I do not say all the speakers because we have had some, particularly from Senator Eoin Ryan, although naturally he appeared to be against the Bill, who gave a reasoned speech. It appealed to me as stating reasonable objections to the material of the Bill, but he did not object to the principle. The speakers from the opposite side of the House who have made the best speeches, have been the people who accepted the principle of the Bill but said this was not the way to do it. The only weakness in all the speeches so far was the fact that they are saying we are against the Bill, we will oppose it line by line but we are not going to offer any alternatives.

There has been some airy-fairy talk about the all-Ireland court but nothing constructive suggested to support the contention. We are now left with the point, as I see it at this stage after several days of debate, that Fianna Fáil oppose the principle of the Bill and for that reason intend to oppose it line by line. If that is the situation, I repeat the contention I made earlier, that we are wasting our time in this House, if the principle of the Bill cannot be accepted.

And you are wasting your time with this Bill.

That is a different matter altogether. I am quite prepared to stay here for weeks, if necessary, to discuss amendments to that Bill. If anybody can prove to the Minister, and to this side of the House, that some clause in that Bill will work better for sensible reasons advanced they will get a fair hearing from the Minister. This is just a question of sheer obstruction and negative contributions and mean nothing, except that the principle of this Bill is not acceptable to certain people.

The reasons for that are fairly clear from what has been said from time to time, especially on the First Stage when some extraordinary speeches were made. These have since been moderated in tone for some reason we perhaps know about. However, the original attitude still seems to permeate some of the speeches.

Debate adjourned.
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