Seanad Éireann díospóireacht -
Tuesday, 9 Dec 2003

Vol. 174 No. 22

Independent Monitoring Commission Bill 2003: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Justice, Equality and Law Reform (Mr. M. McDowell)

I thank Senators for their willingness to take this legislation today. Seanad Éireann has always supported the Government's attempts to bring peace and political stability to Northern Ireland.

The purpose of the Bill is to provide in our law for the establishment of the Independent Monitoring Commission which has been the subject of an Agreement between the Governments of the United Kingdom and Ireland. It may be helpful if I set out in some detail the background to the establishment of the commission.

Members of this House who follow developments in Northern Ireland very closely will undoubtedly be aware of the broad background to the creation of the Independent Monitoring Commission, but I will revisit some of the main points in that genesis to show where the IMC fits into the overall pattern of political progress in Northern Ireland.

The early months of this year saw a great deal of political engagement between the two Governments and the pro-Agreement parties in Northern Ireland. Our intensive engagement continued through the months that followed and following much painstaking effort and a slow grind, a full and complete audit of all areas of the Good Friday Agreement which remained to be fully implemented was developed. This engagement included a set of talks over two days at Hillsborough, involving the Taoiseach and the Prime Minister, Mr. Blair, as well as the parties and a range of Ministers, myself included.

The result of our engagement was the Joint Declaration published on 1 May 2003. The Joint Declaration is the comprehensive assessment by the two Governments of what remains to be implemented from the Agreement and the most positive way of ensuring that this takes place. Published in conjunction with the Joint Declaration, the Agreement on Monitoring and Compliance set out some important principles on how confidence and stability in the political process can be sustained and developed, principally through the creation of a new independent body. This new body will monitor and report on the carrying out of commitments in relation to the ending of paramilitary activity and the programme of security normalisation in Northern Ireland, as set out in the Joint Declaration. It will also consider claims that any party within the Assembly was in breach of its commitments under the Agreement.

The text of an international agreement setting up this new body, now known as the Independent Monitoring Commission, was published in September and signed here in Leinster House on behalf of the two countries by me as Minister for Justice, Equality and Law Reform and the British ambassador on 25 November 2003. Members of the commission had been appointed earlier and they have been doing some preliminary work in shadow format.

The membership which is broadly based comprises Lord Alderdice, the former Speaker of the Northern Ireland Assembly and former leader of the Alliance Party; Mr. Joe Brosnan, former Secretary General of the Department of Justice, Equality and Law Reform; Mr. John Grieve, a former senior officer with the London Metropolitan Police; and Mr. Richard Kerr, a former deputy director of the Central Intelligence Agency of the United States.

The commission, whose members are all individuals of the utmost integrity and standing, visited Dublin last week. I had the opportunity to discuss the broad political situation with them and they also had the opportunity to discuss the situation with other members of the Government. We shared with them the Government view that the IMC can act as a confidence-building mechanism on a wide range of issues, particularly by offering reassurance that the activities which destabilised the institutions in the past will not be allowed to recur.

It did not prove possible to reach the agreement that we had hoped for in advance of the elections to the Assembly last month. That election has created a number of new imponderables. I cannot pretend that I am in a position to tell the House exactly how the political situation will evolve in the light of the Assembly elections. For its part, the Irish Government will do all it can to help achieve agreement among the parties but I stress that this must be in the context of the Good Friday Agreement. One way or the other, it is a fair assessment at this stage to say that the Independent Monitoring Commission will play a key role in future developments.

I will now deal in some detail with the main provisions of the Bill. Section 1 defines certain terms used in the Bill. Section 2 provides that the commission will be independent in the performance of its functions and will have the legal capacity of a body corporate in Irish law. Section 3 deals with the objectives, functions and membership of the commission, as well as the appointment of staff and the proper keeping of accounts.

Section 3(1) provides that the objective and functions of the commission are as set out in Articles 3 to 7 of the Agreement. The objective of the commission is to carry out certain functions with a view to promoting the transition to a peaceful society and stable and inclusive devolved Government in Northern Ireland.

The functions of the commission are as set out in Articles 4 to 7 of the Agreement. Article 4 provides that the commission shall monitor any continuing activity by paramilitary groups and assess whether the leaderships of these organisations are directing or seeking to prevent this activity and report to the two Governments on its findings. Article 5 provides that the commission monitors the British Government's adherence to its agreed programme of security normalisation in Northern Ireland and report its findings to the two Governments. There is also a mechanism for the commission to examine normalisation in the absence of an agreed programme. Article 6 provides that the commission may consider a claim by any party in the Northern Ireland Assembly that a Minister or Assembly party is not committed to exclusively peaceful and democratic means or that a Minister or party is failing to observe any other terms of the pledge of office. In so far as a claim relates to the operation of the institutional arrangements under strand one of the multi-party Agreement, it shall be considered by those commissioners solely appointed by the British Government and any findings reported to the British Government only. Article 7 states that the commission shall recommend any remedial measures considered necessary.

Section 3(2) deals with the membership of the commission as well as the appointment of staff thereto, the proper keeping of accounts by the commission and privileges, immunities and inviolabilities as set out in Articles 10 to 14 of the Agreement.

Membership of the commission shall be as set out in Article 10 of the Agreement. The commission shall have four members appointed as follows: two members, one of whom shall be from Northern Ireland, to be appointed by the Government of the United Kingdom of Great Britain and Northern Ireland; one member to be appointed by the Government of Ireland; one member appointed jointly by the two Governments, who shall be a nominee of the Government of the United States of America.

Section 4 deals with the provision by me as Minister for Justice, Equality and Law Reform, of such moneys, premises, facilities and services, including staff, necessary for the proper functioning of the commission in line with Article 12 of the Agreement. Section 5 deals with immunities and privileges afforded to the commission. Section 5(1) provides that the commission and its property shall be afforded certain immunities and privileges in the performance of official functions. Section 5(2) and (3) deal with immunities and privileges afforded to members of the commission, its staff and agents or persons performing functions assigned to them by the commission.

Section 6 provides that the commission shall not do anything which might prejudice the national security of Ireland or of the United Kingdom, endanger the safety of any person or have a prejudicial effect on any current or forthcoming legal proceedings.

Section 7 deals with the disclosure of information to or by the commission. The section ensures that the commission is in a position to obtain all relevant information to enable it to fulfil its mandate. In particular, it specifically permits the Garda Síochána to provide information to the commission.

The section also ensures that the commission and its agents observe confidentiality in respect of material received. Section 8 provides for the formal dissolution of the commission in an orderly manner in line with article 16 of the agreement. The section allows for the winding down of the commission in a manner which would allow for such transitional or consequential provisions, as are necessary or expedient.

Section 9 provides that applications, under the Freedom of Information Act 1997, for disclosure of information relating to communications between the commission and public bodies may be refused. This is necessary to protect communications between the commission and public bodies. The commission itself is outside the scope of the Freedom of Information Act, as amended, as it is not a public body under the Act and it is not intended that the Minister for Finance would make an order declaring it to be such a body.

Section 10 provides that a copy of each report submitted to the Government by the commission or its members, under articles 4 to 6 of the agreement, shall be laid before each House of the Oireachtas. Section 11 is a standard provision which provides for the payment of any expenses arising under the Act out of moneys provided by the Oireachtas. Section 12 provides that the Act will come into operation by order to be made by me as Minister for Justice, Equality and Law Reform, following consultation with the Secretary of State.

It is in the nature of things that when this House is asked to enact legislation in the context of giving effect to an international agreement, the form of the legislation is to a large extent determined by the terms of the agreement. The agreement, included as a Schedule to the Bill before the House today, is the culmination of detailed negotiations between the Irish and UK Governments. Such a process inevitably involves compromises on both sides.

While the wording of the agreement might not be exactly what any individual Senator might write, if he or she was starting with a clean sheet of paper, I hope the House can accept that the agreement it is being asked to legislate for is a balanced one which has the potential to make a significant contribution to the quest for political stability in the North. It is against that background that I commend the Bill to the House.

Mr. B. Hayes

Fine Gael supports the Independent Monitoring Commission Bill. We have tabled some technical amendments to the Bill, which we can go through on Committee and Report Stages. I understand the importance of this legislation, which was needed in 1998, not 2003. If we had the kind of role and scope that is now being put in place in the Bill then, whereby an independent commission could adjudicate on the facts concerning the ability of parties in the North to stand by their obligations, we might not be in the mess we are currently. This is an excellent idea but it has come too late because we do not have the institutions in Northern Ireland. It is clear that the recent election there delivered a result which will make it more difficult than before to restore those institutions. In effect, the commission will become an ombudsman in Northern Ireland, adjudicating on complaints on a variety of matters, but we needed such a body five years ago.

It is important, however, to have an independent monitoring body in place to call a spade a spade and deliver the hard truths about the situation to politicians in Northern Ireland. The two largest parties on either side of the divide, the DUP and Sinn Féin, currently oppose this legislation. The DUP vociferously opposed it in the House of Commons, while the current position of Sinn Féin, the biggest Nationalist party, is also opposed to the legislation. That is because for the first time this legislation can recommend that sanctions be imposed on parties that are in breach of the Good Friday Agreement. Sinn Féin does not want that because it has been consistently and deliberately in breach of its commitments under the Agreement as the issue of decommissioning has not been resolved.

We are now at a stage where hard, face to face talking is required between the parties in Northern Ireland and between them and our Government. I hope that when this commission is up and running, it will set aside diplomatic speak and when complaints are made to it, it will give full and direct recommendations to both Governments concerning what needs to be done. If that had happened in 1998 or in 2000 we might not be in the current position. On behalf of Fine Gael, I thank the four eminent people who, as the Minister stated, have decided to accept appointment as members of the commission. They have a knowledge of security matters in this State, in Northern Ireland and in the United States of America. They have an expert knowledge of counter terrorism, which is important because the kind of organisations we are dealing with, which still have not decided to decommission their weapons fully and thereby honour the commitments under the Good Friday Agreement, must be told in no uncertain terms what needs to be done, even at this late stage, to make progress.

Whatever the possibilities were of re-establishing the institutions before the elections two weeks ago, it will now be more difficult to do so in light of the results. The Minister was honest about the current political situation. No one has a road map to resolve this situation and there is no plan B. The situation is worse now because over the past five years the two principal parties have used and abused the Agreement to get their own way. I refer specifically to the DUP which has built its political success in recent months on attacking at every turn the Agreement, which is the voice of the Irish people, North and South, as expressed in 1998. Equally, Sinn Féin has successfully built up its political capital in recent months, using the issue of IRA weapons as a bargaining tool between the Irish Government and other pro-Agreement parties.

I am pessimistic about the current situation. Both Governments have done everything in their power to work a way out of this situation. A great amount of time was spent in the discussions between Mr. Adams, Mr. Trimble and both Governments before the recent elections, but we are now in a difficult situation. No Member of the House should be naive enough to think that agreement will be found simply by wishing for it. This situation will require a great deal of political skill and savvy in the coming months and perhaps years if it is to be resolved. The Minister and his Government colleagues have the support of this side of the House, which wants the Agreement implemented. However, we need to know that the people we are dealing with are not moderates. Over the past five years, they have used all their political ability to sunder the Agreement. That situation needs to be recognised and not naively wished away as, unfortunately, some Members of the House still seek to do.

The only time the IRA has decommissioned some of its weapons, since 1998, was as a result of the suspension of the institutions when Mr. David Trimble put pressure on them. There have been three IRA acts of decommissioning since 1998, each one occurring as a result of the pressure exerted by Mr. Trimble. If there is a lesson to be learned from this by the Government and by the SDLP, it is that we must stand together as democrats in constitutionally configured parties to deal once and for all with the parts of the Agreement that have not been implemented.

One of the major reasons two thirds of the Unionist community voted for anti-Agreement parties is that the issues of Sinn Féin in Government and decommissioning, which is an essential part of the Agreement, have not been adequately resolved. We should have dealt with the issue before now. Had sanctions been brought to bear on those parties which were outside the Agreement and not fulfilling its obligations much sooner, we would be in a stronger position. We are where we are, however, and have a difficult situation to address. I know the Governments will do everything in their power to get the multi-party talks going again, assuming there is some prospect of agreement, but that will be difficult.

We will deal with the substance of the Bill on Committee Stage but I want to ask the Minster two questions during this debate, the first of which is on the issue of information. First, the Minister rightly said that one of the sections that deals with this aspect gives power to the Garda Síochána to give information to this commission but as I understand it, in the context of Police Ombudsman for Northern Ireland, we, as a sovereign State, cannot give information to bodies outside the police force in Northern Ireland. In other words, we cannot give information to the ombudsman's office in Northern Ireland because it is not a police force. Will the Minister refer to that when replying to the debate because as I understand it, any information sought by one police authority from another on activities of individuals cannot be obtained by an institution other than a police authority, in other words, an ombudsman?

I recently came across a case where the Police Ombudsman for Northern Ireland attempted to get information, as I understand it, about certain activities along the Border but the Garda could not give that information to the police ombudsman on the basis that the ombudsman was not a police force. If that lacuna exists, we should rectify it. Perhaps the Minister would outline his current thinking on that because it is important that as much information as possible is given to the ombudsman if alleged activities occur and the Garda is in possession of that information.

Second, will the Minister state in his response whether the Government is bound by the recommendations that come from this commission? I am aware the Assembly parties can make a complaint to the commission and recommendations might follow but I am not sure if they are bound by those. As a sovereign Government, are we bound by any conclusions or recommendations that come from this commission? If so, this would make the issue of sanctions a much more real prospect in the years going forward.

I look forward to dealing with some of the more detailed aspects of the Bill on Committee Stage. Those of us on this side of the House have facilitated the Government in bringing the Bill, which I welcome, through the House today in a swift way so that this commission can be in place by 1 January. I am aware it has already met in shadow form and is doing its work. We wish it well in its future work.

Mr. J. Walsh

I, too, welcome the Minister, Deputy McDowell, to the House. He is a frequent visitor to this House and this is indicative of the amount of work going on in the Department of Justice, Equality and Law Reform in introducing legislation.

The Minister outlined clearly the background to the introduction of this legislation and referred to the Good Friday Agreement and the Joint Declaration. It would be fair for the House to acknowledge that the Minister, the Taoiseach, the Minister for Foreign Affairs and others have played a crucial and constructive role in bringing the process this far, and I would like to acknowledge that. As alluded to by Senator Hayes, the Agreement was overwhelmingly endorsed by all the people on the island and also within each of the jurisdictions, North and South. It behoves all democrats to adhere to its terms but, unfortunately, this is not always the case.

When I first read the Title I thought it was quite an innocuous Bill. I then read the memorandum, which appeared to be even more innocuous but on reading the substance of the Bill, I came across areas about which I would have some reservations. I do not want to appear pedantic in any way but the first aspect that struck me was the interpretations, something with which I never had difficulty previously. Perhaps that is indicative of our own backgrounds in terms of these issues but I would have difficulty with some of the descriptions in the Bill.

I am conscious that, through the Agreement, we have tried to bring relations between Britain and Ireland onto a higher plane and in the removal of Articles 2 and 3, which was voted for in the referendum adopting the Good Friday Agreement, there was a clear majority to give effect to the provisions. It strikes me as a little odd, however, because we replaced Articles 2 and 3 with a more aspirational article in the Constitution which I believe puts a constitutional obligation on us to pursue a united Ireland. I am well aware of the political, security and other sensitivities attached to that but it is important that we clearly state where we are coming from and everybody North and South has acknowledged that it is a legitimate aspiration for people to seek to have a united Ireland. This places an obligation on all of us, the Houses of the Oireachtas, Ministers and the Government, to pursue that. I would like to see that view more strongly reflected in the stand taken by the Government in this House. I will come back to that aspect because we can sometimes overstate the sensitivities and be apprehensive when there is no need to be.

On the Agreement itself, a certain à la carte approach has been taken by parties and others. For example, we saw the delay in holding the election, despite opposition from various parties and from the Government. The North-South Ministerial Bodies have not functioned in the manner in which we would have envisaged at the outset. North-South Ministerial Councils have not functioned in some areas either because of opposition and withdrawal of co-operation. It is important that in moving along we do not take an absolute position on all aspects of the Agreement. It is a holistic Agreement and therefore there are obligations on everybody to fulfil its terms fully, willingly and in a co-operative way. I realise there are difficulties in achieving that but I would have some concerns that in the meantime we might move ahead of everybody else and not encourage them to fulfil their particular responsibilities. I do not want to labour the point too much because to some extent it is a question of optics but where another country is defined in our legislation, that definition is also there for international legal interpretation. In doing that, we should be conscious of our responsibilities to fulfil the aspiration within the Constitution.

The Minister rightly dealt with section 7 but at first glance I actually misread it. I thought it was a mandatory rather than a discretionary imposition on the Garda Síochána and on the Commissioner, although I believe there will be a strong political imperative for absolute co-operation in this area so as to make the discretionary aspect somewhat redundant. It raises serious security issues, however, and while I am conscious that this whole area is about security, North and South, and the fulfilment of obligations by people to ensure that everybody embraces the change in Ireland, there has to be some caution as to how that is done. I imagine the Minister and others might agree with me that a requirement on the Garda or the Commissioner to disclose operational matters or findings to outside parties is probably undesirable. I do not want to go back over even recent history in this regard but there have been instances where people with statutory responsibility did not fulfil their responsibilities as they should have. It is important that we are mindful of that.

We will also need to open up our system of justice in other areas. The Joint Committee on Justice, Equality, Defence and Women's Rights discussed these matters during its review of the criminal law. Disclosure of information in certain areas can affect the prosecution of cases and the successful completion of investigations.

Regarding Article 3, Senator Brian Hayes alluded to the fact that the legislation has to some extent been overtaken by events since it was first envisaged. While an independent demonstration of adherence or otherwise to the terms of the Agreement by the various parties was needed at one stage, changing circumstances, namely, the emergence of Sinn Féin, on the one hand, and the Democratic Unionist Party, on the other, as the largest parties in the Assembly, raises a question mark, as the Minister also noted, about devolved government in the North. I hope the current problem will be overcome. There is a strong body of opinion that if it is overcome in the current circumstances, the result may be more sustainable as a consequence.

I am not as pessimistic as others regarding the outcome of the election. While it may have been preferable for the moderates to have achieved greater success at the polls – it could have encouraged agreement – in the circumstances, the largest parties now have an obligation to bring finality to the Agreement. We must be optimistic and work towards this objective.

On Article 4, I spoke to several of the recently elected DUP representatives. It is interesting that it is now possible to discuss issues such as a united Ireland with people who would be perceived to be on the extreme wing of loyalist and Unionist opinion. While they may not be about to change their opinion on this issue, the mere fact that it can be discussed is notable. One of them told me he had been less than diligent in criticising paramilitary violence on the loyalist side. This violence needs to be acknowledged by Unionist politicians. There has been one-way criticism of the IRA and republican paramilitaries, perhaps with justification, but it is necessary for credibility and balance to point out that much of what happens on the loyalist paramilitary side is a major deterrent to the normalisation of society in the North.

At a meeting of the Joint Committee on Justice, Equality, Defence and Women's Rights this morning, at which the Minister was present, the Garda Commissioner stated that paramilitaries are prominent in the organised criminal fraternity in at least three of our cities and in the Border area.

Mr. B. Hayes

Exactly.

Mr. J. Walsh

This is unacceptable at this point and brings into focus the fact that the information flowing to the commission will perhaps provide evidence and identify witnesses and the names of those involved. Obviously, therefore, there is a responsibility to ensure this information does not fall into the wrong hands, given the nature and character of those who will be investigated on both sides. We appear to have at least circumstantial evidence that this was not fully the case in the past.

Regarding Article 5, which sets out the measures one would identify for the normalisation of society such as the demolition of towers, closure and dismantling of military bases and withdrawal of troops from Northern Ireland, the response has been less than generous. While it is possible that reasons for this will be cited, I have concluded from my occasional visits to the North that more could have been done, even in light of current security concerns, to give effect to these measures.

I understand the programme of commitments in the area of normalisation has not yet been agreed – perhaps the Minister will correct if I am wrong in this. The Bill states the commission shall, at the request of the British Government, prepare a report. Why can this not be done by the Irish and British Governments? Could the commission of its own volition make such a request? I am making a distinction between Article 5(2) and Article 5(1), which is triggered only when the commitments and the agreed programme are in place.

Although my concern with regard to Article 10 is not substantive, I would have preferred equality of numbers in the allocations. Given that both Governments jointly nominated the member of the commission from the United States, perhaps they should also have jointly nominated the member from Northern Ireland.

On Article 13, we are dependent on absolute adherence to the requirements that people will not disclose information they receive in the course of the performance of their duties. The text even refers to agents. Apart from the members of the commission, staff and agents will also be engaged, whose identity we do not know at this stage. Given the eagerness and ability of some of the paramilitaries to obtain information – we have had experience of this – this area will need to be closely monitored.

Despite the reservations I have outlined, I support the Bill and hope the commission operates with efficacy. The Minister does not need to be reminded by me or anyone else that we are not dealing with members of the Legion of Mary on any side and we must, therefore, be vigilant about how the commission operates.

Mr. Bradford

I am glad to have an opportunity to say a few words on this legislation. While I was not present for the Minister's opening remarks, I have a copy of his speech, which I welcome. We must concede that in the overall scale of trying to make political progress in Northern Ireland, this legislation is neither the end of the beginning nor the beginning of the end, but simply another small step forward. When we discuss the politics of trying to bring about a political settlement or solution to Northern Ireland, we can sometimes dream too much of finding one great step forward which will solve all the problems. There will be no such step and the message must be to try to keep taking small steps and bring as many people as possible on board on each occasion.

When the Houses debate the politics of Northern Ireland and possible or attempted solutions to the problems there, we fail to recognise sufficiently the progress that has been made. If we were to examine the record of political debate on Northern Ireland in the Oireachtas during the past 20 to 25 years, we would find that from the late 1960s to the middle of the 1990s every debate concentrated on the most recent terrorist atrocity.

There were appropriate words of condemnation, but very little hope. At least in recent years when we debate Northern Ireland, for all the difficulties that still remain, there is a significant degree of hope. There has been major progress, although it has not gone as far as everybody would have wished. However, we must acknowledge that as a result of what has happened since the early 1990s and in so far as the ceasefires are complete, there has been a huge difference in the lives of the citizens of Northern Ireland. The vast majority of people in Northern Ireland, whether in west Belfast, south Down or south Armagh, are able to get on with their lives in a reasonably comfortable and secure fashion. That was not the case 15 years or 20 years ago. We have come a long way and although I recognise that we have a long way to go and that legislation such as this Bill is still necessary, we should try to see the glass as being half full instead of half empty.

The Minister stated that the legislation is for the purposes of debating and dealing with the question of how confidence and stability in the political process can be sustained and developed, principally through the creation of the new independent body. That is what it is all about – how to create confidence and ensure that political structures are developed and used to the full.

People mentioned the election results in Northern Ireland and the general overview expressed by political parties and commentators was that the results were disappointing. There was a demand for elections in the Oireachtas and throughout the body politic in the Irish Republic. The elections were called and they took place; the people of Northern Ireland spoke. We cannot re-run the result of the election no more than we could re-run the result of the general election here 18 months ago, no matter how much some of us would wish to do so.

Mr. B. Hayes

Hear, hear.

Mr. M. McDowell

The Senator would be better off preparing for the next one.

Mr. B. Hayes

So would the Minister.

Mr. Bradford

We have to live with the consequences of how the people of Northern Ireland spoke. We talk about some parties winning the majority of the Unionist vote and other parties winning the majority of the Nationalist vote as if there was a substantial shift. If one looks at the total vote and the results in the constituencies, while there was a shift of seats, there was not a major shift in public opinion. There was perhaps one shift that has not been commented on and perhaps Senator Walsh, who spoke earlier about the dream of a united Ireland, should dwell on the fact that the total Unionist vote in the election, not including those who voted for the Alliance Party, seemed to grow substantially.

We debated informally over the past two years or three years how the population shift in Northern Ireland and the changed demographics would bring about an almost 50-50 political divide. The election result of a fortnight ago appeared to knock that argument on the head. I will not dwell on that because we should not try to solve problems by some sort of mathematical formula. In respect of the issue we are debating here and the broader issue of Northern Ireland, we must try to make progress in small steps.

The weapons issue remains firmly on the agenda. Weapons are part of the problem, but I am not sure how far we can go in trying to make them part of the solution. We will not arrive at a situation where every single weapon of destruction, be it an armalite, a bullet or a cartridge, will be collected. It simply does not work that way and it never has done so. If, in the Ireland of the early 1930s, when William T. Cosgrave was handing over power to his political opponents, he had demanded evidence to show there were no illegal weapons left, the handover would never have happened. If, in the Ireland of 1948, when John A. Costello was forming the first, broad-based, inter-party Government, he had demanded absolute assurances that every piece of weaponry formerly used by some components of the parties involved in that Government were fully decommissioned, we could not have proceeded.

There is only so far one can go in demanding that weapons are beyond use. It must be a strong political aspiration, but the issue is that if people have a willingness to go back to the type of armed politics they employed in the past, they can always purchase or obtain more weapons. While we seek reassurances and must insist that people who wish to practice politics disarm their armed wing, trying to obtain full proof of this disarmament is so difficult that if we put it at the very top of our political agenda we might find it impossible to progress that agenda. We must try to work with the political parties and particularly with those who previously did not show a commitment to politics to ensure that they are brought on and kept on side. We know from our history that politics works, just as we know that violence, division and sectarianism does not work. We must keep politics and its practice to the fore.

In the Schedule to the legislation, Article 4 refers to the dealings the commission will have concerning the threat from paramilitary groups. It has a massive task on hand. One notes that it must monitor attacks on the security forces, murders, sectarian attacks, etc. Sadly, they are still happening. Training, targeting and intelligence gathering is still happening to some degree. Punishment beatings and attacks are still happening on all sides of the political equation in Northern Ireland. We have to aspire to the time and the day when all of that will cease. The question I ask myself is how we best march in that direction.

We must, while working hard to ensure progress on decommissioning and security, keep politics to the fore. People from various backgrounds and histories have been elected to a new Assembly in Northern Ireland. Some of them have committed deeds which we could not be proud of or defend. The challenge facing those people is to try to put the political affairs of Northern Ireland back on the agenda and we must work with them.

There was a suggestion in this House last week, from the Government side, that we should invite the leaders of the Northern political parties to address us. I echo that suggestion. It is important that we have an opportunity to listen to some of these leaders as well as speaking to them. The more dialogue, the better. It is the only way forward. I want to see the big issues of militarisation and demilitarisation tackled and resolved, but we have to keep politics to the fore and keep people talking because it is the only avenue that brought about progress over the past ten or 15 years and it is the only way that we can make further progress.

Mr. Kett

I welcome the Minister and the Bill. I was thinking as I listened to the Minister that he is taking benchmarking a little seriously because every time he is here, we have to be here and we may look for more.

This is a very important Bill because 30 years of violence have left a legacy of pain and distrust. It is understandable that pain and distrust would endure even while serious progress was being made. The history of the past six years has been one of great hope followed by severe disappointment. Notwithstanding all the current difficulties, the unfolding of the Good Friday Agreement has been immense. Over the past five years it has transformed the conditions of the people in Northern Ireland and relations on the island.

The principle of consent has now been accepted by all sides. The value of North-South co-operation is recognised universally. The strong partnership between both Governments in driving progress has demonstrated the value of good intergovernmental co-operation. There are still many difficulties to be overcome before we can have full implementation of the Agreement but the crux of the issue is the matter of trust.

Last May the Minister was involved in extensive negotiations on the Joint Declaration and today's Bill is part of what came out of those discussions. There is no doubt progress has been made on policing, equality, elements of the criminal justice system and demilitarisation. We also had a significant act of decommissioning some weeks ago and a statement from Gerry Adams. However, we and everyone in the North, need to know that paramilitary activity is over once and for all and that there is no ambiguity about it. People will only develop the trust that is required if they hear a statement to that effect. The many failures of the executive over the last number of years have been brought about by that lack of trust. It is clear to everyone that the two Governments must come to grips with the issue. Otherwise I cannot see us moving forward to any great extent. Trust and paramilitary activity are the two issues at the core of the problem and we will never be able to sustain any kind of stability unless we tackle them.

Paragraph 13 of the Joint Declaration sets out the need for an immediate, full and permanent cessation of paramilitary training, targeting of people, intelligence gathering and a plethora of other riotous behaviour. It also makes clear that the practice of exiling people must stop. People who have already been exiled should be able to return in safety and security should they so wish. Five years after the signing of the Good Friday Agreement and ten years since the first ceasefire, who could possibly object to the monitoring of activities such as these? It is high time these activities ceased. They are wrong and they are damaging the very fabric of the Good Friday Agreement.

This summer was the most peaceful Northern Ireland has seen for a long time. In recent weeks, however, we have seen an upsurge in violence, consisting mostly of loyalist attacks on Catholics. This is simply unacceptable and must be tackled. If there are people in these communities with any influence at all I encourage them to help in whatever way they can to bring about a cessation of this activity. I am not sure whether all sides realise that the IMC, which we are discussing today, is for both sides of the community; republicans and loyalists can benefit from it. It will become part of the architecture of the peace process. Those who suggest it is incompatible with the Good Friday Agreement or outside it are missing a vital point. It is there to help. Any fair-minded person must believe it will be a positive development. If paramilitary activity is a thing of the past why should anyone have any objection to that fact being stated? The commission can also investigate some of the mischievous allegations which could undermine confidence. When the institutions are re-established, as they should be soon, it is to be hoped this stop-start progress will be a thing of the past. The commission will be a positive influence in this respect.

The communities in Northern Ireland are now emerging from the shadow of the gunman. All communities have finally realised that the people who were their so-called protectors were actually the reason they were being attacked. They have now put this behind them and realise that their protectors were of no assistance at all. Senator Walsh mentioned the process of security normalisation, saying it was vital, and I agree. People have a right to live in a normal environment. The commission will have the responsibility of monitoring the demolition of watchtowers and removal of police from the barracks. All those things will be of benefit and the commission will be the vehicle through which they are delivered. There will be no justification for having soldiers in police barracks and watchtowers if paramilitary activity has ceased.

The members of the commission, as the Minister said, are eminent people. I do not know any of them but I will take the Minister's word that they are the right people for the job. Americans have played a key role in Northern Ireland down through the years, from Mr. Clinton down. Their lending of help is a further indication of their support. The commission will have a difficult job. There is a long way to go before trust is built up between communities in the North. I wish them well.

The recent elections have brought new challenges to the North; they have made a complex issue a little more complex. The people of the North have spoken. They have given the candidates their mandate and they expect them to do what they must. They expect them to contribute to the possibility of a restoration of the devolved Government. The Agreement was ratified by 85% of the people of this island and 71% of the people of Northern Ireland. More than 70% of the representatives returned to the Assembly are pro-Agreement, which says something. I hope all parties work with the Governments to achieve normalisation and stability in the North. I wish the Minister well.

Ms White

I welcome the Minister and his Department officials. I welcome the establishment of this independent monitoring commission. It represents progress and an injection of energy for Northern Ireland. I do not agree with Senator Brian Hayes that there is no road map. How could we have a road map in politics? Every step of the way is unpredictable and it requires vision and courage. As I said here two weeks ago after the elections, I do not look at the election results as dismally as some people. I see it as an opportunity. We may be surprised by the DUP – its representatives may be more pragmatic than we expect and be willing to do a deal. As I said that morning, we should send our good wishes from this House to both parties, who were democratically elected.

The last day I said this I got into trouble, but I deeply regret that Professor Monica McWilliams lost her seat. I was a personal supporter of hers. I will not mention any more names. I wanted to put that on the record in a calm manner because there were ructions when I mentioned to whom she is related – she is a first cousin of you-know-who.

An Cathaoirleach

The Senator must stick to discussing the Independent Monitoring Commission Bill.

Ms White

Had the elections been held earlier, I believe the result would have been different. The Government was too patient. I do not think we will achieve a perfect result on decommissioning. How can we be sure that every gun and every missile will be handed up? Someone must have the courage to make a decision and accept in good faith that both sides want peace. If they wish to do so, people can go out and buy more weapons, therefore, politicians must have the courage and vision to accept the sentiments of Sinn Féin. I would have accepted the sentiments expressed by Gerry Adams on the last occasion. A member of the American International Observers Group, Mr. Bill Flynn, who is highly regarded in the insurance business in the United States agreed with me that the wording was acceptable. I do not think we will get a perfect result on the matter at any time.

I am just saying what I believe. I have a passion for peace in Northern Ireland. I have been observing what has been happening in the Garvaghy Road since 1995. I have drawn up a report for various taoisigh. I have friends on both sides of the community in the North. I brought the first Fianna Fáil group to Glengall Street to meet David Trimble and we had dinner with him in one of the councillor's houses. I have friends on both sides of the divide, including friends who are ex-prisoners. This is the issue to which I would like to draw the Minister's attention.

Perhaps the issue of prisoners could be dealt with under the independent monitoring commission. This is part of the Belfast Agreement and has not been adequately addressed. It has never been taken seriously by politicians, North or South. The Agreement states that the Governments continue to recognise the importance of measures to facilitate the reintegration of prisoners into the community by providing support, both prior to and after release, including assistance directed towards availing of employment opportunities, retraining, re-skilling and further education. An ex-prisoner can be elected an MLA and become a Minister in the North but an ex-prisoner cannot get a job sweeping the floor in City Hall. Billy Hutchinson was an ex-prisoner, as were people on the republican side, and an ex-Minister was a prisoner. However, humble loyalists cannot get a job cleaning windows in City Hall because of a public service ban. There is no consistent approach to ex-prisoners.

This could be my swan song in politics, but I will stick with it. I have given a commitment to people on both sides of the divide in the North, including the DUP, the UVF and republicans. I will help these people who need a political voice. I will put my heart and soul into this work because I totally oppose violence. I was asked at the beginning of the peace process to visit prisoners in the North. When the ceasefire broke down in 1994 I told the prisoners that I would not visit them again unless the ceasefire was restored. I will not help anyone who is not committed to peace, because it is not in my nature. I am totally opposed to violence but I believe we must have faith in the process. We will not get a perfect situation. Political leaders must be pragmatic and have courage and vision.

I submitted my document on ex-prisoners to the Taoiseach and the Secretary General of the Department of Foreign Affairs who is discussing it with the Minister's Secretary General. I will give the Minister the document. As the previous Secretary General of the Department of Justice, Equality and Law Reform is on the commission, he knows exactly the position of ex-prisoners. He would be the right man to handle the issue under the independent monitoring commission. My regret is that we did not have a second person on the commission, one from the North and one from London. I would like to be involved in these negotiations. President McAleese asked me as chairwoman of the Gaisce awards to try to get the award into the North, which I succeeded in doing.

Ms Tuffy

I welcome the legislation which the Labour Party supports. We will facilitate its quick passage through the Seanad and Dáil by not tabling amendments. Northern Ireland is not my area of expertise but, on reading through the legislation, I can see it is part of the bigger picture in the implementation of the Good Friday Agreement and the adherence to democratic means over violence for political ends.

While we cannot go backwards, progress is disappointing from a party political point of view. While I am not happy with the result of the election, one must put it in context. People voted overwhelmingly for the Good Friday Agreement both here and in the North. There are many reasons that people vote for a particular party in elections. The important point is that they voted and used democratic means to express their wishes. I do not think this is an endorsement of anything other than a peaceful way forward for Northern Ireland.

I was involved in a small way in the Forum for Peace and Reconciliation. The work the forum is carrying out is helpful and it is important that it continues. Meetings were held recently, and even though Unionists did not take part formally, they did contribute. I found what they had to say very positive and they were prepared to engage. We must find a way of including Unionists. We had a forum on Europe, which could have worked better. If we want to keep the Forum on Peace and Reconciliation going, we must deal with issues that affect ordinary people. The work the forum does is very helpful but it is held in Dublin Castle. We need to involve people at all levels.

It would be nice to see a united Ireland in the future, but I do not think it is what is important. It is not my priority. What is important is co-operation between the two jurisdictions at every level. As talks progress, this will bring about peace in the future. We must try to improve co-operation at all levels. There is a lot of work going on in this area about which most people are not aware. However, much more needs to be done. I have experience of co-operation between local authorities here and in the North. This is something in which I became involved in the past couple of years. I had not been to the North until recently. I stayed my first night in Northern Ireland during the summer at a summer school in Armagh. Many people now travel to the North to do shopping, which is the way forward. The two jurisdictions can enrich each other. We could be of help to and learn from each other. Everyone considers themselves Irish but may have different perspectives on the matter. However, the most important aspect at the end of the day is co-operation and I see the legislation as part of that.

Dr. Mansergh

I welcome the Minister to the House. I recognise the importance of this legislation which derives from the agreement last April between the British and Irish Governments and the Joint Declaration in an effort to break the impasse which led to suspension in October 2002 and to repair the tried mechanisms which would enable trust to be repaired. Unfortunately that agreement in April did not achieve the intended effect of getting the institutions restarted nor, unfortunately, did more recent attempts. The Governments have faced these situations on a number of occasions since the Good Friday Agreement was signed and have to persevere until the obstacle is overcome, which I have no doubt that will happen sooner or later.

Last April I would have had mixed feelings about this commission. It was established in a particular political context which has now changed. It tried to encourage the Unionists and others back into the institutions, with the Unionists seeking definite sanctions which would not be entirely dependent on the British Government. This independent commission, which in theory would be free of politics, would establish the facts, come to a judgment, and suggest an appropriate sanction, which would then fall to the parties in the Assembly and eventually, by default, to the British Government.

It was envisaged, possibly by the Unionists in the type of situation that occurred last October or a recurrence of something similar, that the commission would be in a position to form a judgment, make recommendations and so on and that there would be improved the sanctions against misbehaviour by one party or the other. Since the elections, the political context for this has changed completely, and the issue is no longer one of reassuring the Ulster Unionist Party in order that Mr. Trimble can return as First Minister with the support of his party, as the result has put the DUP into poll position. The members of the commission have scope in the coming months to play a confidence building role before any institutions are re-established. If they are able to give positive reports on progress or lack of incidents this will create a climate which will make it easier for all parties, including the DUP, following a review, to put the institutions back together.

Instead of the institutions returning first and this body being established afterwards as a fail-safe or sanction mechanism, it has a different role of helping, along with others and the Governments, to establish the climate in which it is possible to restore the institutions. I am torn in my judgments of the continuing residue of paramilitarism, even mainstream paramilitarism, that still exists. On the one hand I have great admiration for the distance travelled. If one looks at any international comparison it will be difficult to find similar situations. In South Africa, for example, the ANC fought a guerrilla war, entered negotiations, came out on top and won. In that simple case the ANC formed the institutions of the state and the army. The type of paramilitarism in which they were involved disappeared, but that is not the position in the North of Ireland. It is difficult to detect any winners of the 30 years of conflict. In many ways everyone was a loser. I have never subscribed to the zero sum game theory of Northern politics, even though many parties behave as if it applied. Enormous progress has been made but it needs to be concluded and finished. Naturally, when I was a member of the Government team I shared the frustration at the relative slowness in putting the past to bed and moving forward, something I still share as a citizen and public representative. My hope is that the election results will give encouragement to the political strategy which was embarked upon many years ago, and that people will realise that not merely is there no need for paramilitary organisations but the continuing existence of them is an encumbrance and a hindrance and a potentially serious embarrassment. I do not expect people to do things unilaterally, but I hope in the coming months in the context of moving forward that people use the opportunity to put the past behind them and to put paramilitary organisations definitively out of commission. This is a great opportunity for the republican movement to show a final act of political courage that will vindicate the course on which it has embarked.

I know some of the members of the commission quite well and have every confidence in their political sense, judgment and integrity. It is important it tackles a problem which has been left to one side and I urge the Unionist parties to do the same, namely, loyalist paramilitarism. There has been very little movement in this regard, though the loyalists have in a sense politically marginalised themselves because of an unwillingness. They made a considerable and constructive contribution in the early stages of the peace process but their path has faltered because they have not participated in the more general demilitarisation that has taken place. The commitment of the British Government to remove the military character of the North is equally important.

In supporting this legislation, I look forward to seeing it used in a constructive manner. No matter what is written, we must consider the realpolitik of the situation – either there are conditions in which the institutions can function on an inclusive basis or they will not function at all. If it was politically unreal before the Assembly elections that, short of a return to war, something would not happen, the parties would come together or the British Government on its own would exclude what was even then, by a slight margin, the larger of the Nationalist parties, Sinn Féin, it is totally out of the question now. If one even attempted to do it, the SDLP would be crucified, not Sinn Féin.

We must be realistic. No one can force the republican movement into acts of completion but, and this applied to every stage of decommissioning, the question is if it does not move to conclude, is it prepared to pay the political price? That is the issue. I believe the republican movement is committed to the process and to doing what is necessary to sustain it and the institutions. The republican movement may not come to that easily and I understand some of the internal difficulties involved. It is not an easy task, although it is easy for us to preach glibly. Nonetheless it must carry its strategy to a logical conclusion and there should be no further unreasonable delay in doing so. I accept that it will be done and the plan for doing it will be in the context of putting the institutions of the Good Friday Agreement together again on a durable basis. That is what we all wish to see.

Minister for Justice, Equality and Law Reform (Mr. M. McDowell)

I thank Senators for their contributions on the Bill this afternoon. This legislation is narrow in its focus but important in its potential effect on the situation in the future. It was interesting to hear contributions in the House from various perspectives.

Senator Brian Hayes asked if the Government would be bound by recommendations of the commission. That is not in this agreement and could not be because the Good Friday Agreement speaks for itself and this is a supportive measure. It is not something that could bind either Government because that would amount to a significant change to the Good Friday Agreement. Recommendations of the commission are unlikely to call for direct action by the Government but in the agreement on monitoring and compliance, the UK Government has undertaken to resolve claims made about parties in the Assembly in accordance with the commission's recommendations and in consultation with the Irish Government so there is direct effect.

The Senator also raised the question of the provision of information by the Garda Síochána to the Police Ombudsman in Northern Ireland. That is outside the scope of the Bill but since he raised the matter, as a matter of courtesy, I should say that whereas the exchange of information between police forces is well established in practice and principle, the other issue is being examined by my Department in the context of the new Garda Síochána legislation and, with the establishment of an ombudsman service in this State, that question will be addressed.

Senator Walsh mentioned information provided by the Garda Síochána to the commission. The Bill states that the Garda Commissioner may provide information to the commission and that is obviously necessary for the commission to do its work. The commission is bound to maintain confidentiality in respect of information given to it, but there is no obligation to provide information which could have the security implications referred to by Senator Walsh.

The Senator asked if there is an agreed programme of normalisation. There is not because we did not reach agreement at the time of the joint declaration or in the process that went off the boil at Hillsborough earlier this year. The commission, at the request of the British Government, can report on "normal" normalisation, as opposed to the "agreed" normalisation that is provided for in the Agreement.

Senator Bradford mentioned decommissioning and I do not doubt the wisdom of what he said. It is an issue that remains on the table and must be faced. Senator Mansergh made the similar point that this will not simply go away; it must be addressed. As he correctly said, acts of completion cannot be forced by external agents on the republican movement but, by the same token, the logic of history and the momentum of events is a much stronger force than requests of Governments.

Senator Kett mentioned the provisions of the Joint Declaration on paramilitary activities. It is a matter of great regret that at the time people were not willing to commit themselves to that aspect of the Joint Declaration. It escapes me why there was not a willingness to agree to the specific language of paragraph 11 of the declaration at the time.

Senator White raised the position of ex-prisoners and I do not doubt she is genuine in her approach to this issue. It would be misleading, however, for me to suggest that the IMC will have a role, direct or indirect, regarding prisoners. It is not envisaged and the issues she raised will have to be resolved in other ways.

Senator Mansergh is right that the political context has changed since the commission was originally mooted but, to a great extent, the need for monitoring by an independent body remains, notwithstanding the changed context. A central tenet of the DUP approach is that there must be an end to paramilitary activity and, in those circumstances, it is not difficult to see a key role for the commission even if circumstances have changed substantially.

It is a matter of huge disappointment to the Government and to me that the seemingly strong momentum that existed in the run up to the Hillsborough summit failed to deliver. In retrospect, the people who withheld that which was necessary to create an agreement at that time must now ruefully reflect on the lost opportunity.

I attracted negative comment for saying that the two Governments were attempting to act as honest brokers and was reproved for using that phrase. It was suggested that a different role was envisaged for the Dublin Government, that of being an unswerving ally of one side of the process. This political generosity and willingness to compromise was needed at the time to sustain the position of other participants in what would have been the immediate re-establishment of the Executive's institutions in Northern Ireland. A great opportunity was lost then for very little. In retrospect, some people may regret that we focused then on convincing each side that it needed the other until, like the two halves of an arch, they would lean against one another to bring about political transformation in Northern Ireland. Unfortunately, an overly adversarial approach was adopted, and to borrow Senator Mansergh's point, the "zero sum" mentality overshadowed what could have been a clear and unequivocal verbal formula to effect a transformation that would have put us in a much healthier and stronger position than we are in today. Our present position is not by any means hopeless because the people have spoken in Northern Ireland and the Good Friday Agreement provided internally for a review of its terms which must proceed.

In that context however, the gulf between the parties represented by the First Minister and Deputy First Minister, were the existing arrangements to be attempted again, is wider than ever before. The width of that gulf is a cause of concern. Senator Kett said the situation had become more complex. While I understand his point in a sense perhaps it is not more complex, merely more simple but more difficult. We now know what are the problems, we can see the two protagonists who hold the numerical majority in the political communities in Northern Ireland and we know their demands The republican movement now faces a different Unionist line-out, which is probably less able to accept some of the delicate language and events deemed to constitute acts of completion last spring. Had those words and events been delivered on generously they would have accomplished that purpose. The situation has changed but not necessarily for the worse. We must take some time to let the new realities bed down and to allow those who have achieved different and stronger mandates in the recent election to face the responsibility of those mandates. While people may talk about their mandate, it is a mandate to reinstate institutions in Northern Ireland, not simply to stand by a position. Senators Kett and Walsh made the point that we must face up to the reality that 70% of the people of Northern Ireland voted for pro-Agreement parties. No matter what construction is put on the outcome of this election, when people were given the opportunity 70% of them lined out for parties whose fundamental predisposition is to make the Good Friday Agreement work.

Those who were calling for re-negotiation of the Agreement must realise that the two Governments are not in a position to re-negotiate it. They will review it, as they have undertaken to do to the electorates North and South, and to the people of these islands. The fundamental principles of a partnership society, creation of a sense of equality, recognition of east-west and North-South relations and the need to share in executive power in Northern Ireland cannot be re-negotiated, no more than can the constitutional arrangements between the two sovereign Governments and the restatement of the Irish position on the status of Northern Ireland. None of these matters is up for re-negotiation. In that context, it is open to everyone now to ask whether the exact technical details and minute provisions for the operation of the institutions in Northern Ireland can be altered as a consequence of a review. That is an area in which there is sufficient room for people to asses the present position in the light of what has happened.

I thank the House for its positive endorsement of the Government's position, which is that this International Monitoring Commission should proceed in present circumstances. I acknowledge Senator Mansergh's great work in assisting the Government to arrive at this point. I take seriously therefore his statement that he was always rather ambivalent about the necessity for this body. It was intended at the time to be a hand-holding institution for those being asked to take matters on trust in circumstances where they found it difficult politically to sell that message to their own electorates. Events have shown how difficult that task was. This body can play a very useful role in a further outworking of the Agreement.

People have asked why there is not another Nationalist representative. The body was designed to represent the two Governments, the US as an honest broker and an interested and co-operative party, and a similar person selected from within Northern Ireland who happens in this case to be Lord Alderdice. It was a carefully constructed, balanced international mechanism but was not designed to be balanced numerically between Nationalism and Unionism, or to function on that basis. I am grateful that Senator Mansergh now sees it would be better to proceed with this body than to walk away from it.

By the same token, some people were positively hostile to the body. They should look at the terms of the Agreement and the functions of this body and ask themselves what threat there is in the establishment of a monitoring commission to report to the two Governments on the situation that exists on the ground in Northern Ireland with regard to paramilitarism and demilitarisation, or the political commitment within the institutions to making them work. If they are committed to the Agreement and to exclusively peaceful and democratic means what possible threat is there to their interest that such a body should now exist? I particularly ask the republican movement to co-operate fully with this body in future because it poses no threat to it. On the contrary, it is balanced and reasonable having regard to the interests republicans in Northern Ireland claim to represent.

I thank Members for the interesting and stimulating debate we have had and I look forward to the early passage of this legislation.

Question put and agreed to.

Acting Chairman (Mr. U. Burke)

When is it proposed to take Committee Stage?

Mr. J. Walsh

Now.

Agreed to take remaining Stages today.