I move:
That Seanad Éireann takes note of the recent position of the Association of Garda Sergeants and Inspectors in relation to extradition and urges the Government to reconsider extradition proceedings as the most effective means of combating cross-border crimes.
I am very pleased to be able to move this motion in the House this evening. I welcome the Minister. I am sorry the Minister for Justice could not be here. I hope that the Minister will not — by the end of this debate — believe that it is right to extradite people for political speeches rather than for political offences.
Extradition is an unknown word in the Irish political vocabulary. Up to about 15 years ago criticism of the Churches or criticism of the men of 1916, criticism of that whole realm in Irish mythology was almost unheard of. It was heresy, there was a long litany of gods and godesses to whom one had to genuflect; there was a long litany of taboos. One of the things that I resent about the Irish political scene is that for a long time it has been wrong to diverge from this mythology, to attack or to criticise this mythology. I believe that extradition is one of the last taboos in this mythology because even now it is so little talked about. I do not believe there has been a parliamentary debate on extradition in the Oireachtas since the foundation of the State. The ambivalence continues when one raises the subject at any stage in Irish political life. There is this tacit feeling which politicians of all parties seem to have that they baulk at the idea of lifting the lads and sending them over the Border. The lads, I would remind this House, are normally and usually murderers. Party leaders I think — for reasons which I understand — feel that it is unpatriotic and anti-Irish to take on these people; there is a silent, underhand connivance with the men of violence which still exists. Luckily, we have open condemnations of violence from all parties. But I believe there is still this underhand feeling that this one can still not be tackled.
At this stage I might say a word on the Fine Gael amendment, and I think this proves my point. The Fine Gael amendment, unfortunately, is a very open and obvious attempt to duck the issue of extradition. I respect and do not agree with the Government's view on extradition. But I would have thought that Fine Gael, who have made so much of the Constitutional crusade, who have made so much of putting their hands over to the Unionists in a gesture of friendship, might have been able to tackle this issue of extradition and not to avoid it by putting down an amendment which they know very well the Government will have to support, because it is Government policy, but which will in fact allow them to avoid taking a stand on extradition itself.
One of the things I would like to hear in this debate is not so much the Government's view on extradition — I know what that is — I would like the Members of the Opposition here to tell us exactly where they stand on this and not to avoid it by talking about an all-Ireland court. I would like the House to imagine what the situation would be in the Republic of Ireland if the extradition issue was reversed. Let us suppose that the UDA, the UVF, or any other Loyalist paramilitary organisation — for their own sinister aims — decided to do the opposite thing. Say they decided that members of the Garda, members of the Army, even civilian targets in Sligo, Louth, Leitrim, Donegal, Cavan and Monaghan — decided that these targets were legitimate, that they could come over the Border, murder these targets and then go back to the hills of Antrim and to Belfast. What would be our Government's reaction to that? I suggest to the House that they would ask Britain, an openly friendly power, to hand over these men to them to face justice. What would public reaction be here if the British Government said: "We are very sorry, we shed very open tears for the wives and families of these men, it is a terrible sin" and they condemned the murders in the strongest possible terms. But if they also said: "But we have a Constitution, unfortunately, which does not allow, according to international law, people to be extradited for political crimes and so these men who have murdered members of your security forces must, as a result, be allowed to go free in the streets of Belfast and be allowed to be given the opportunity to murder again."
The problem of extradition was first recognised only at the time of the Sunningdale Agreement. Before that it was regarded as a minor irritation but not as a major problem. It took a bargain for an Irish Government in 1973 to recognise that there was a real bolt-hole in the Republic into which criminals could actually flee. The Criminal Law (Jurisdication) Act was then introduced — I would remind the House not until three years later, it took three years for the Commission that was set up actually to come to a conclusion and to make a recommendation. The Criminal Law (Jurisdiction) Act was recommended as some sort of a panacea for the problem of cross-Border crimes. It was an ingenious Act in its inception. It was theoretically extremely clever and was a very neat operation. But the difficulties with the Criminal Law (Jurisdiction) Act were foreseen by those eight judges, unanimously, both Irish and English, at the time of the Criminal Law (Jurisdiction) Act and at the time when they actually set it up. They said that this was the compromise because the Irish judges did not agree with extradition. They said that the difficulties with this Act would be the difficulties of getting civilians to cross the Border and to give evidence.
These difficulties have been transparently open and obvious in the workings of the Act ever since. Up to 1980 I think there were four prosecutions under the Criminal Law (Jurisdiction) Act. Nobody in this House can suggest to me that there were not hundreds of cross-Border crimes in that time. The present cases which no doubt will be quoted to us, the high profile cases and the prosecutions which have been brought recently, should not mislead us into believing that this Act is working; it is not. Several of the present cases have been to do with members of the IRA escaping from legal custody in Northern Ireland and these men have rightly been brought to book. But the reasons it is easy to bring them to book is because it depended on RUC evidence and the RUC and the Garda are prepared to cross the Border to give evidence. There is absolutely nothing to suggest that civilians will do so. As a result of this a tiny fraction only of those who are guilty of cross-Border crimes are still being prosecuted and have been prosecuted. One had only to see the recent "Panorama" film on BBC television which showed and interviewed people who admitted that they were guilty of cross-Border crimes and murders and were walking free in the streets of Dublin. The names of these people are known to the RUC, to the Garda and they are certainly known in London. But because successive Governments have conveniently hidden behind the guise of international law and behind the guise of the Criminal Law (Jurisdiction) Act there are men here enjoying immunity. The Gardaí feel impatient. The Garda see these men, know these men and know that they are walking free having committed the most appalling crimes.
In March of this year this edifice began to crack. The Association of Garda Sergeants and Inspectors put forward and passed a motion seeking an urgent review of the constitutional and legislative conditions governing extradition. This was a direct result of Garda morale and Garda frustration with the fact that they could not arrest and bring to book people who had committed crimes for which they were suspected and which they were convinced they would be sentenced for and convicted of in a court of law.
I find it strange, and I will say no more, that this Government — who showed such uncharacteristic sympathy and sensitivity for the case of the Garda on the issue of capital punishment while they were in Opposition — can now ignore and ride totally roughshod over the wishes of the Association of Garda Sergeants and Inspectors over extradition.
I would like to come to the legal arguments very briefly. The legal arguments no doubt will be and are put forward as an insuperable objection to extradition. I regard them more as a smoke-screen. I do not want to get bogged down in them simply because there are very distinguished authorities on either side on this issue. But the opponents of extradition say that extradition is contrary to international law and therefore it is unconstitutional. I should like to quote briefly here Chief Justice Maguire in the Supreme Court, the State (Duggan) versus Tapley. I will give one judgment on our side of the House to try to justify this position in legal terms. I do not want to give a large number because there are hundreds and there are hundreds on the other side. But Chief Justice Maguire held — in the Supreme Court in the State versus Tapley in 1952 — that there was no principle of international law compelling a State to withhold surrender of a fugitive offender, and I quote here:
...international law permits and favours the refusal of extradition of persons accused or convicted of offences of political character but allows it to each State to exercise its own judgement as to whether it will grant or refuse extradition in such cases and also as to the limitations which it will impose upon such provisions as exempt from extradition.
Nothing could be clearer than that. What that says is that you can define when you regard them as political fugitives and when you regard them as actually suitable for extradition and not suitable for extradition.
I accept the genuine arguments which will be put, undoubtedly, on the other side about this. I believe that the legal arguments are something of a stalemate and the legal position is, if not untested, unresolved. I think we should all accept that. But what I would suggest is, if the legal arguments are the only ones, or if they are the principal ones about which we are going to disagree, then let us draft a Bill on extradition. Let us draft a Bill, let it be an Extradition Treaty which would have to go through the Oireachtas. Let us then have it tested, no doubt, in the Supreme Court where it would have to be tested. It is the function of the Supreme Court to interpret the Constitution.
There are an enormous number of armchair lawyers who say that things like this will be interpreted as unconstitutional and cannot be introduced because they are unconstitutional. That is not our job and it is not our job to usurp it. It is our job to make the law and then it can be referred to the Supreme Court if it is necessary. This I regard as a red herring. I regard this as a terribly convenient camouflage for those who for other reasons do not like extradition. At that stage if the judges find against the Bill, which I do not believe they would, but if they do, it is still open to the Government, any Government of the time, to take other action. This Government certainly do not seem reluctant to hold referenda on less relevant and less necessary things. If no Bill is drafted within a short period of time — which I suspect it will not — I will have great pleasure in introducing one in this House if I can get the necessary signatures.
Having dealt with the military and legal aspects I should like to come now to the rather more important political effects which extradition would have. I am privileged to be one of the six people in this House who actually has constituents who cross the political and religious divide in Northern Ireland, most of them, nearly all of them of moderate opinion on all sides. I believe that the moderates of all communities find extradition the great running sore. It is difficult to explain how strongly they feel about it. There is no point in trying to appease the Paisleys or the extreme Protestants; giving extradition would in fact be an inconvenience to them because extradition is as useful to Ian Paisley as was internment to the Provisional IRA. It is a propaganda weapon which he uses and it will not convince him of anything if we do it. Take, for example, the Alliance Party, a party which crosses the political divide and has a large proportion of all religions in it. They say, quite openly, and have done for many years, that there can be no co-operation, no good neighbourliness with the Republic, unless we introduce extradition. They are the sort of people to whom the crusade introduced by Dr. FitzGerald was really trying to hold out the hand of friendship. I find it regrettable again — and I cannot emphasise it any more — that the Fianna Fáil Party will not take a stand or are trying to avoid taking a stand on extradition today. I can tell them without any doubt that ducking this running sore is not going to convince anybody in Northern Ireland. If we are serious about unity of the country, if we are really serious about it, which is often doubtful, this is the sine qua non because they see us as possibly conniving with the Government. They see us as possibly turning the blind eye on both sides of this House. The onus is on us not only to condemn the Provisional IRA but to counter them.
I would like to remind this House — and I think it is time that the House was reminded — that the Provisional IRA very cleverly have achieved one thing — abroad they give the impression that they act in our name, they claim to act in our name and they have succeeded outside this island in a great confusion of identity. In the United States this is particularly obvious, in Britain it is obvious, in Europe it is obvious — that there is confusion of identity between the Provisional IRA and the Irish people. The other thing which they have done which is so destructive is that they have discredited, successfully, unfortunately, the true tolerant pluralist republican tradition of which we should all be partakers. That is something which they have successfully achieved. They have blurred the republican tradition which was an extremely tolerant noble republican one in this country. I think there is nothing anti-republican or anti-Irish about extradition. Indeed I would see, if we united with the people of Northern Ireland in extraditing, that that would be a justifiable republican stance.
I should like to say a few words about Border security. It is probably appropriate here to congratulate successive Governments for the last ten years on Border security. There is no doubt that it has improved enormously. Whether it is done out of any noble motives or whether it is done because successive Governments have seen that the threat from the Provisional IRA is as great to the Southern State as it is to the Northern State, I do not want to comment on, but I think there is probably an element of both in it. I would have thought that one of the impetuses towards unity, the common interests which we could hold, is that if we identify and fight a common enemy we are much more likely to be a united people. In this context I think I should make a comment on what Dr. Garret FitzGerald said in his Dimbleby Lecture and afterwards at the SDLP Conference in Belfast, both of which I attended, in which he suggested an all-Ireland police force and an all-Ireland court. As regards an all-Ireland court — which I gather we will be talking about later — I personally feel that this is a non-starter, it is very long-term, it is impractical and has been dismissed unanimously by the Commission of Judges set up: in one page out of a book of 70 pages it was dismissed unanimously as impractical in immediate circumstances. I believe that this is the case. I believe it is a procrastinating case and I believe that it will put off the day. How many more murders are going to happen? How many more men are going to go apprehended while we fiddle around waiting for civil servants and judges of all sides to come up with an all-Ireland court? We would need to change the Constitution of the country for that.