§ 7.3 p.m.
§ The LORD CHANCELLOR (Lord Elwyn-Jones)My Lords, I rise to move the Second Reading of the Criminal Jurisdiction Bill. It is the product of the resolve of both Her Majesty's Government of the Republic of Ireland to find a solution to the problem of the fugitive terrorist in Ireland and of bringing the bomb and bullet men to justice. Complementary legislation—the Criminal Law (Jurisdiction) Bill—was introduced in the Dail last November.
Both Governments have shared the widespread concern about the difficulty of obtaining the return to Northern Ire-land from the Republic of persons accused of terrorist crimes in Northern Ireland. In December 1973, as your Lordships will know, the Sunningdale Conference, which included elected representatives of political Parties of Northern Ireland as well as the British and Irish Governments, agreed that persons committing crimes of violence, however motivated, in any part of Ireland should be brought to trial, irrespective of the part of Ireland in which they are located. As a result, a joint Law 953 Enforcement Commission was appointed to study the problem. The present proposals in the Bill flow directly from the conclusions of that Commission.
There is no formal extradition treaty between the Republic and the United Kingdom. The return of offenders between the two countries is normally achieved by the police of one country executing a warrant issued in the other and bringing the accused before a court which decides whether to surrender him. The court must be satisfied that the offence corresponds with an offence under the law of its own country and that it is not one of a political character. In addition, in the Republic, but not in the United Kingdom, a court must be satisfied that it is not an offence connected with a political offence. This procedure is confined to the police and the courts, and in neither country can the Executive intervene. These arrangements represent an earlier example of complementary legislation worked out in consultation between the two Governments, and it has functioned effectively in non-political cases and will continue to apply.
However, since the troubles in Northern Ireland started no person accused of what could be termed a terrorist offence has been returned to Northern Ireland to face trial. The startling void this has created Will be evident to your Lordships when I quote the example of a man, who admitted that he was a member of the IRA, who, last year, appealed in the Republic against his extradition to Northern Ireland on a charge of murder. In the High Court in Dublin he is reported as having given an account of his part in the placing of a bomb outside a police station which killed two innocent passers-by when it exploded. The judge ruled that he must hold that it was a political offence, and he is reported as having said:
I am not entitled to have any regard to the fact that the admitted activities of the present applicant seemed to breach any concept of humanity or any civilised form of conduct.This illustrates the grim difficulties that the existing state of the law in the Republic presents to members of the Judiciary there and, indeed, to ourselves. I might add that the conviction of an accomplice for murder involving this same incident has been secured in Northern Ireland.954 As I have said, in the Republic a court needs to be satisfied that an offence is not connected with a political offence before extradition can be ordered. This provision, which is incorporated in the Republic's extradition law, is derived from the European Convention on Extradition to which the Republic is a party, but we in the United Kingdom are not. As a result, the circumstances in which an appeal can be mounted against extradition are wider in the Republic than in the United Kingdom. But apart from this, judgments in courts in the Republic such as the one that I have cited—and there are others—have indicated that if a person appeals against extradition on the grounds that he committed his offence as a member of the IRA that offence is likely to be regarded as political and non-extraditable.
It was recognised at the Sunningdale Conference that the problem itself and the possible solutions were complex, and so the Enforcement Commission was set up to advise on the most effective legal means of bringing to justice fugitive terrorists in Ireland. The United Kingdom members of the Commission included the Lord Chief Justice of Northern Ireland and Lord Justice Scarman, and their Report, produced jointly with their Irish colleagues, was presented to Parliament in May of last year when both Governments agreed on the action to be taken on the proposals in the Report. The method upon which all the members of the Com-mission were able to agree, and which was accepted by both Governments, was the so-called "extra-territorial" method; namely, that the courts in each part of Ireland should have jurisdiction to try under their own domestic law, certain offences wherever they happened to be committed in Ireland. It is a general principle that our criminal law is limited to offences committed on our own territory of the United Kingdom. But there are already precedents both in the Republic and in Northern Ireland for the assumption of extra-territorial jurisdiction.
The Commission agreed the range of offences to which the scheme should apply and that the only way in which a court could exercise extra-territorial jurisdiction would be by trying a person arrested within its own jurisdiction for scheduled offences committed in the other jurisdiction—in other words, he must clearly be a fugitive; secondly, that the 955 accused should be given the option to return to his own jurisdiction for trial; third, that the Attorney General in each jurisdiction should decide whether to institute proceedings; and fourth, that witnesses should not be compelled to cross the Border to give evidence. This last point in the Commission's proposals, which is an important feature of the Bill, involves a new procedure, namely, the taking of evidence on Commission whereby evidence can be taken in the other jurisdiction in the presence of the accused and the trial court.
The offences to which the scheme will apply are called "extra-territorial offences" and, as your Lordships will see, they are defined in Clause 1. The offences are those listed in Schedule 1 together with the offences in Clauses 2 and 3 and the inchoate offences in Clause 6(2). Clause 1 of the Bill provides that an act or omission taking place in the Republic of Ireland which, if committed in Northern Ireland, would be an offence under Schedule 1, shall constitute an offence in Northern Ireland. They are all serious offences where, in view of the circumstances that I indicated a few moments ago, political motivation might be pleaded as a defence against extradi-tion. Clause 2 and Clause 3 create new offences. Clause 2 deals with the offence of hijacking and the use of vehicles for planting bombs by proxy. Those offences have of late become common features of terrorist activity.
Clause 3 makes it an offence for a person to escape in the Republic when in legal custody in connection with an offence which is an extra-territorial offence under the law either of the Republic or of Northern Ireland. Extra-territorial offences under the law of the Republic are defined; these are, basically, the analogous offences under the corresponding legislation introduced by the Republic to extra-territorial offences under the Bill. The legislation therefore has been substantially complementary. Clause 4 read with Schedule 2 makes amendments to the Northern Ireland (Emergency Provisions) Act which have the effect of enabling trials of extra-territorial offences to be heard without a jury and restrict the granting of bail and the place of trial. The Bill makes these provisions permanent for the trial of extra-territorial 956 offences. That is for a practical reason. Just as some witnesses will not be prepared to cross the Border to give evidence and cannot reasonably be expected to do so, neither would many jurors be willing to cross the Border in the opposite direction to be present at the taking of evidence on commission. Even if they were willing the problem of the transport of jurors and their security would make the arrangement impracticable. The equivalent trials in the Republic will be before the special criminal court of three judges which sits without a jury. There-fore, until trial by jury is restored in Northern Ireland there will be three judges trying these cases in the Republic and a judge alone trying them in Northern Ireland. This country and the Republic have mutual confidence in their judicial systems. Indeed the backing of warrants legislation could not have worked in ordinary criminal cases as it has done were this not so. Nevertheless, the Bill provides a safeguard for the accused, in that he may opt to return for trial to the jurisdiction where the alleged crime was committed. Protection is also provided against double jeopardy. Proceedings cannot be taken in Northern Ireland where there has been a conviction or acquittal of the alleged offence in the Republic.
My Lords, I now turn to the key issue of witnesses. While some police officers have given evidence in the Republic, it is understandable that many witnesses have a real fear of crossing the border to give evidence. The Law Enforcement Commission recognised this and recommended administrative measures designed to win the confidence of witnesses and to encourage them to make the journey to the place of trial, such as special arrangements for travel and for accommodation if overnight stay is necessary. I hope it will reassure all potential witnesses when I say that the Government have agreed with the Irish Government that full security measures will be taken to protect witnesses who travel to the other jurisdiction. In addition, Clause 5 empowers a court trying an extra-territorial offence to withhold the names and addresses of witnesses and, together with Schedule 4, applies a suggestion by the Commission which will help if witnesses are not prepared to travel. If the court of trial so decides, 957 on the request of the prosecution or the accused, it will request the other jurisdiction to nominate a Commissioner, who will be a High Court Judge, to hear the evidence of certain witnesses who are not prepared to travel to the place of trial. The Commissioner will hear the evidence in private in the presence of the trial judges, and of the accused if he wishes to be present. Counsel for the prosecution and the defence will also be present and normal cross-examination of the witness will take place. The trial judges will be able to request the Commissioner to put particular questions to the witness if they so wish. The Commissioner will be empowered to withhold names and addresses of witnesses when evidence on commission is being taken. The taking of such evidence in the presence of trial judges does not interfere with the normal inherent power of a court to determine when evidence is admissible and what weight should be given to it.
My Lords, the Republic Bill and this Bill have been drafted in close consultation with the Irish authorities, and so far as the Law Enforcement Commission's proposals are concerned, are for the most part reciprocal and complementary. In one important respect both Bills go beyond the scope of the Commission's terms of reference. Clause 7, which ex-tends to the whole of the United Kingdom, amends the Explosive Substances Act 1883 so that courts anywhere in the United Kingdom will have jurisdiction to try two kinds of explosive offence aimed at targets in the Republic. First, there is the offence under Section 3 of the 1883 Act, which is concerned with various preparatory acts. For practical purposes the core of the offence is the act of conspiring to cause an explosion, whether or not an explosion does in fact actually happen.
It is already an offence triable in United Kingdom courts for anyone in Her Majesty's Dominions, or a citizen of the United Kingdom and Colonies anywhere, to conspire to cause an explosion in the Republic. In respect of this offence all that Clause 7 does is to re-enact the provisions of existing United Kingdom law in a clearer form.
There are two reasons for doing this. The Irish Bill goes further than is required by the Law Enforcement Commistion's 958 proposals, in extending to preparatory acts aimed at explosions outside Ireland and it would thus enable a trial to take place in the Republic of anyone who conspired there, or of an Irish citizen who conspired anywhere else, to cause an explosion anywhere in the United Kingdom. The Irish provision would therefore be valuable to Britain as well as to Northern Ireland and we think it right to give the Irish Government the clearest indication that reciprocity is available in United Kingdom law. The second and associated reason behind the proposed new Section 3 of the 1883 Act is that, although our law already covers conspiracy to cause an explosion in the Republic, the relevant provision is to be found in an extremely obscure and practically unobtainable Instrument—The Irish Free State (Consequential Adaptation of Enactments) Order 1923—which is certainly not readily accessible to the practitioner in Great Britain. It is un-satisfactory that the law on such an important issue should be so hard to find and it is in any case desirable to restate the law in a clearer and modern form.
The second offence for which Clause 7 provides for extended jurisdiction is the substantive one of causing an explosion. Under present United Kingdom law, someone who committed this offence in the Republic and was found in the United Kingdom could not at present be tried here for the substantive offence—though it might be possible in a particular case to prefer a charge under Section 3 for a preparatory act. Implementation of the Law Enforcement Commission's proposals in respect of the substantive offence of causing an explosion would require an extension of extra-territorial jurisdiction, but for Northern Ireland only. However, for reasons of consistency it is desirable that the extension of jurisdiction to cover explosions actually caused in the Republic should apply throughout the United Kingdom, particularly as there is already such jurisdiction for acts preparatory to causing an explosion. The position that we have now, whereby a person could be convicted in a British court of conspiring to commit an act which was not itself punishable here is clearly not satisfactory, and Clause 7 will correct this. I should make it celar that the Irish Bill as it stands does not contain a reciprocal provision. The Irish Government 959 has been invited to reciprocate. We shall await the result of the discussions which have been taking place.
Clauses 9 and 10 of the Bill concern technical matters relating to evidence and provide for the offence of perjury for the making of false statements. Prosecutions will be made only with the consent of the Attorney General and this is provided for in Clause 11. Clause 12 amends the law concerning the prosecution of offences. It is a law reform not directly connected with the extra-territorial jurisdiction aspect of the Bill, but is introduced here as a matter of convenience because some doubts have been expressed about the clarity of the existing law.
Finally, I should make clear that the new arrangements proposed in the Bill do not preclude the police from making applications under the Backing of Warrants Act where the accused does not appear to be politically motivated or where it seems reasonable that the courts will return them. If an extradition application fails, it will still be possible to proceed under the new scheme as pro-posed in the Bill.
My Lords, in the last four years some 38 warrants for persons wanted for terrorist offences have been sent from Northern Ireland to the Republic and your Lordships may think that this number is not large and does not justify a Bill of this nature. But the 38 terrorist crimes concerned were serious offences indeed, and the number of warrants would have been greater if witnesses had been forthcoming and if it were possible for the police to question suspects across the Border. Co-operation between the Royal Ulster Constabulary and the Garda is not a matter that can be legislated for, but the success of the Bill will largely depend on it and noble Lords will be pleased to hear that the Irish Government have agreed that they will provide all assistance and facilities needed by the RUC in the investigation of crime. Similarly the mounting of prosecutions will depend on the closest possible co-operation between the authorities on both sides of the border, and here again I can assure your Lordships that Her Majesty's Government and the Irish Government have agreed that this will be forthcoming from both sides.
960 This Bill and the equivalent Bill in the Republic demonstrate that both Governments are as one in their determination to conquer violence. This Bill aims a double blow at the terrorist. It should remove a refuge and enable evidence to be obtained more easily to bring them to book. Yet at the same time it does not prejudice the right to a fair trial which is cherished on each side of the Border. My Lords, I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a. —(The Lord Chancellor.)
§ 7.28 p.m.
§ Viscount BROOKEBOROUGHMy Lords, after such a lucid and brilliant exposition of this Bill by the noble and learned Lord the Lord Chancellor, I am slightly intimidated, like the witnesses appearing before him. However, as this Bill affects so very much the whole morale of Northern Ireland and the future of relations between Northern Ireland and the Irish Republic, it is right that I should make some comments on it.
The noble and learned Lord the Lord Chancellor has quite rightly pointed out that the extradition process simply cannot work, because without any further ado, except to claim that he was connected with a political body, an accused person can prevent the extradition process from taking place. I can assure your Lordships that the population of Northern Ireland has been outraged frequently by such instances as have been described by the noble and learned Lord, of people admitting that they have committed murder and saying, "But of course, this is connected with a political crime." Indeed, the people of the United Kingdom as a whole have been outraged at the failure to extradite Father Burns from Scotland.
The solution which the Law Commission went for had to do two things. The Commission wanted to establish that these people should be fairly tried. But the Commission had another aim, which was to establish trust between the people of the North and South of Ireland, so that they could jointly form institutions which would work as a permanent method. It is by that criterion of whether this Bill provides a fair trial, and by the second criterion of providing confidence between the people of the North and South of 961 Ireland, that I judge it. In case I for-get, because I shall certainly speak about one or two matters I find rather worrying, I should like to say that I welcome the Bill, because any step in this direction, no matter how small, must be right.
When I read the Report of the Law Commission, I must admit to being rather worried about the attitude of the lawyers who came from the Irish Republic. The Law Commission were commanded as a matter of extremely urgency to deal with this problem. It was obvious from the objections which they put up to extradition, which the British lawyers unitedly agreed was the best method, that there was some other problem behind the procedure. The truth is that extradition is politically impossible for the Irish Government to carry out. I feel very strongly that a lot more confidence might have built up between ourselves and Dublin had this been admitted at the very beginning and four months of legal argument avoided, because the Executive which existed immediately after Sunningdale was dependent on rapid action and a rapid solution to this problem. As the weeks dragged by, it became more and more difficult to sustain any belief that there was an urgency on the part of the lawyers from Dublin. The solution which we now have, and this is agreed by the British lawyers, is very much a second-best. An extradition treaty properly enacted and properly amended would be the answer.
My Lords, I find a certain lack of logic in this, because, as I understand it—and I almost asked the noble and learned Lord the Lord Chancellor to clarify my mind on it—the question of witnesses being heard in, for instance, the United Kingdom in the case of somebody who is arraigned in Dublin does not apply; that is to say, the method of examining witnesses extra-territorially applies only to Northern Ireland and the Irish Republic. I feel that that is not a very logical situation, and I should like to paint the picture as I see it. Let us imagine that the Birmingham bombers had got away to Dublin. I wonder whether we would have got extradition for that crime. Would they have been returned to us by the Dublin Government?
Let us assume that they pleaded that 962 it was a political offence. You then get to the question: would the witnesses go from Birmingham to Dublin to make sure that those murderers were convicted. If you read the list of the people who were hurt in that terrible explosion, their names are quite clearly either lately out of Ireland or one generation away from Ireland. Do you think that those people, with names like McGahey and so on, would go to Dublin with full publicity, knowing that the IRA would know where their relatives were? I believe it would be tantamount to subjecting their whole families to the most appalling intimidation. Therefore, I feel that it would be right to move an Amendment that this whole Bill applies throughout the United Kingdom. But as well as that, on a pure matter of pride, I feel that this is making Northern Ireland different in legal terms from the rest of the United Kingdom.
I should like to know this. The noble and learned Lord the Lord Chancellor said that there is trust between the courts of both countries, but it seems to me to come out of this Bill and out of the Law Commission, that the Irish Republic trust our courts to examine and assess witnesses, but they do not trust us to try them. It seems to me that half the battle of a court in trying someone is in the assessment of witnesses. There are at least seventy cases of extradition at the moment awaiting service. If this Bill becomes an Act and there comes a flow of these cases through to our courts, the strain on our already overworked and very gallant, brave judges will be enormous, because the method of examining witnesses, the consultation between judges, will be extremely cumbersome and we are very short of people at the Bar and on the Bench.
I would now turn to the question of witnesses. According to the Report by the noble and learned Lord, Lord Gardiner, there are already just under 500 witnesses who have failed to come forward in cases of serious crime. It would be impossible for the courts to prosecute these people, because there are cases where it is more just that they should escape being murdered, than that they should be forced to come and give witness. But how much more difficult will this be if this Bill becomes law, when somebody in the North of Ireland who 963 is witness to a serious crime of murder is examined in court by the counsel for the defence who is a member of the Southern Irish Bar? This is nowhere near as safe as the method which we have in Northern Ireland. I asked whether a key witness to a murder—and the murderer I am talking about has committed more than one murder—was presented with an order to come forward and give witness under those conditions, and I regret to say that the answer was, No. The person I am referring to is a person of great substance and great courage. I feel very hesitant in saying this, but I am afraid that people will not come forward and give witness under this Bill and without witnesses it will never work.
§ The PARLIAMENTARY UNDER-SECRETARY of STATE, NORTHERN IRELAND OFFICE (Lord Donaldson of Kingsbridge)My Lords, would the noble Viscount allow me to make a comment here? Nobody has ever thought that this Bill will do away with intimidation. This is the great problem in Northern Ireland. It will not be altered, and nobody ever thought it would be. I really think the noble Viscount is setting up an Aunt Sally to knock down. The object of this Bill is specific, coming out of the Sunningdale Agreement agreed by both sides, that fugitives from justice can be apprehended and tried. It is as simple as that.
§ Viscount BROOKEBOROUGHMy Lords, I accept the noble Lord's castigation, but I feel that the exercise of this Bill will be much more subject to intimidation than the exercise of the law as it exists at present. I hope that the Director of Prosecutions in Dublin will not be slow to act on this Bill when it becomes law, because in the past, when we have had the Offences Against the State Act, it has not been until physical attacks in the Irish Republic have occurred that we have had very much movement on the part of the authorities. I am also worried about the inflammatory effect of bringing up somebody from Dublin on trial, having to be protected by the police; for instance, the lady who had a hand in murdering the three soldiers. It will not be a very easy matter, unless it is handled with great care and confidence, to bring these people up to be examined. I hope that the examination of the witnesses at 964 that point will be given as little publicity as possible.
At the present moment, my Lords, the Dublin Government is showing a tremendous determination to win, and it is a great satisfaction to everybody in the North of Ireland. But people are very worried about the return to the Front Bench of the great architect of the present IRA, Mr. Haughey. While this may not be relevant to the Bill now, it is reported that the Opposition are freely saying that they are quite happy with it, because under Article 3 of their Constitution this will be declared ultra vires. If I may, I shall read to your Lordships this article, which would seem to bear out what they say:
Pending the reintegration 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 have the like area and extent of application as the laws of Seanad Eireann and the like extra-territorial effect".That appears to me to say that they cannot legislate for anything outside the 26 counties. If this is so, and the Fianna Fail is quite happy that this Act can go through and that all the cases referred to it can be challenged in the courts and called ultra vires, then the damage that could be done to the relationship between the North and the South of Ireland would be very great indeed.My Lords, the intention of the Law Commission was to give confidence to the people of Ulster and to ensure that criminals should be brought to justice and given a fair trial. I hope that this may go a little way to achieve it. I am afraid that I am not optimistic as to its operation because, in the end, extradition is the only way to provide proper justice.
§ 7.42 p.m.
§ Lord CHORLEYMy Lords, this is a Bill which I am sure your Lordships will welcome. It is an ingenious attempt to deal with a very difficult situation. The noble Viscount who has just spoken rather doubted whether it will go very far, and it may well be that he is right, but I feel that we ought to make every effort that is open to us. This certainly is an ingenious attempt to cover part, at any rate, of this difficult ground. It is a complicated Bill, and in spite of the lucid way in which the noble and learned 965 Lord on the Woolsack explained it to us I could not help feeling, particularly in connection with Clause 7, that it might well come back to your Lordships sitting in a different status as Lords of Appeal in Ordinary, because the possibility of raising ingenious points under it is obviously a very clear one.
My main object in intervening this evening is not to point out these difficulties but to ask a simple question also asked by the noble Viscount; that is, why the Bill is confined to Northern Ireland. The noble and learned Lord on the Woolsack has pointed out to us that a similar reciprocal measure now going through the Dail in Southern Ireland applies generally to the United Kingdom. I cannot see why this particular Bill also should not apply generally to the United Kingdom. Noble Lords opposite have referred to Birmingham—which is not the only place in England where dastardly crimes of the same kind as those perpetrated in Northern Ireland have been committed—and also to Scotland. Therefore, I should have thought that there was a strong case for covering the British Isles as well as Ulster. What is going to happen to that type of case is not clear.
I have heard it said that this Bill is being criticised in Northern Ireland in that it establishes a sort of Sudetenland in Northern Ireland. I am sure that this is not the case, and that this is far from the Government's mind, yet it is the kind of criticism which can be, and is in fact being made. I think it requires a strong answer on the part of Her Majesty's Government to remove it. The best way of removing it would be to extend the provisions of this Bill to the United Kingdom.
Looking through some of the Schedules of the Bill, I could not make out whether the criminal law of England as it appears in the Statutes was being modified by the repeal of Statutes, or sections of Statutes, or whether these sections of Statutes are repealed only in respect of Northern Ireland. I can see that this might give rise to considerable legal difficulty when cases come before the courts. This, of course, could all be got over by making the Bill applicable to the whole of the United Kingdom instead of just to Northern Ireland. I cannot see why it should be limited in this way, and I hope 966 that the noble and learned Lord will be able to give us a good reason as to why it should be so.
§ 7.46 p.m.
§ Lord BELSTEADMy Lords, in the context of events in recent years in Northern Ireland, surely there is very little room for jobbing back. Indeed, it is one of the mercies of the tangled story of the last six years that events have changed, sometimes imperceptibly, sometimes dramatically. From the politicians I think this requires foresight rather than regret, planning not recrimination. Yet it would be a delusion not to recognise that this Bill, a constructive consequence of the Sunningdale Agreement, is desired to satisfy a need which has remained constant throughout the cross-current of recent events in Ireland—the need for both North and South to work together to banish the scourge of terrorism from each of their jurisdictions. My Lords, I realise that naturally to the hard-pressed people of Northern Ireland it seems clear that terrorist acts stem from the opportunity for the terrorist to be able to melt away into the background, usually provided by a safe house, and from the facility to be able to slip across the Border, there to shelter behind the restriction placed upon the extradition of fugitive offenders.
To deal with this problem the Report of the Law Enforcement Commission clearly showed that legal opinion from the United Kingdom favours extradition of offenders at present excluded because of their political character. I agree with my noble friend Lord Brookeborough that this would be the best method for bringing fugitive offenders to justice. But, of course, as a whole, as the noble and learned Lord the Lord Chancellor has recorded, the Commission could not agree on this point so we had this Bill which gives effect to the Commission's agreed alternative—a system of extra-territorial jurisdiction.
My Lords, I am grateful, and other noble Lords including the noble Lord, Lord Chorley, who is versed in the law, have also thanked the noble and learned Lord for his explanation of the main provisions of the Bill. Although the Law Enforcement Commission affirmed that the situation required not far-reaching law reform but immediate practical 967 measures, nevertheless inevitably this Bill is legal in character. It is also complicated—at least I find it so—because although the Bill's effect is to confer on courts in Northern Ireland jurisdiction to try fugitive offenders accused of serious crimes of violence in the Republic, it also refers, for instance, in the Schedules, to reciprocal procedures which together make up the total agreement which is now being put into effect by this legislation and by legislation being presented to the Dial in Dublin.
May I echo what my noble friend Lord Brookeborough said, that it is regrettable that it has not been possible to present these Bills more swiftly. More than once the Law Enforcement Commission refer-red to the need for speed, and in Chapter 1 of their Report indicated the scale of the problem as they say it by reference to the 33 warrants outstanding since 1st April 1971 which have been forwarded to the Republic for crimes now set out in Schedule 1 to the Bill. In the ten months which have subsequently elapsed, further warrants have followed and, as the noble and learned Lord the Lord Chancellor said in his speech, none has succeeded in extracting an offender. Having said that, I think the delay has had this advantage: the recent Christmas ceasefire has shown that this Bill is being introduced at a time when people increasingly long for peace.
So it is to be hoped that to the provisions of this Bill there will be added the strength of public opinion which will reject the terrorist who is on the run and will determine to assist the courts in both jurisdictions to make this legislation really work. For let us not deceive ourselves about the prospects of success to which my noble friend Lord Brookeborough referred. The solution of extra-territorial courts will require a fund of good will and co-operation and the most effective security on both sides of the Border. If I may give just one example of the former requirement, good will and co-operation, it is rather well illustrated in the somewhat complicated provisions of Schedule 3 (3). These protect, as I understand it, a person who has been extradited for a non-extra-territorial offence. if he is subsequently accused of an extra-territorial offence in the South, and, of course, there is the reciprocal provision 968 in the Dail's Bill. I appreciate the reasons for the safeguard and, indeed, it could be most important for us reciprocally; but obviously it is not the intention that such a person will simply be allowed to go scot free after seven days. Presumably in such cases the Republic will issue a warrant which will require the accused not to go free, but either to opt to return for trial under Schedule 3(2), or to stand trial where he, in fact, is in Northern Ireland.
However, the will to make this legislation work effectively will need the support of the Security Force. After all, judges will be required to cross the Border to participate in the taking of evidence on Commission. The accused is to have the right to attend the examination of witnesses, as well as being entitled to be legally represented. Some danger must attach to both those processes and, although Clause 5 and Schedule 4 faithfully implement the recommendations of the Law Enforcement Commission for the taking of evidence outside the jurisdiction, as the noble and learned Lord the Lord Chancellor explained, the Bill also makes every possible provision—compatible with a fair trial—for the protection of witnesses. None the less, effective counter-measures against intimidation will still be essential if justice in these courts is to be done. So while recognising the untiring work of the Royal Ulster Constabulary and its high level of crime detection, the passing of this Bill does, once again, concentrate attention on the need for the police in Northern Ireland to have the manpower to be able to protect the individual wherever he may live and to investigate crime wherever it may be committed.
If I may say so, these requirements apply even more forcefully to the Republic where, after all, the numbers of fugutive offenders under this system who are going to be found will probably be the greater and where the Security Forces are rather less thickly disposed on the ground. But so far as Northern Ireland is concerned, we know from Government Statements that the Royal Ulster Constublary numbers remain below target figures. The recent Report of the Com-mission under the noble and learned Lord, Lord Gardiner, has drawn attention to the need to strengthen the criminal investigation department of the RUC, and it may be appropriate for these 969 and related matters to be probed rather further during the next stage of the Bill.
My noble friend Lord Brookeborough has expressed his extreme reservations. He lives in Northern Ireland and these measures affect him and countless others personally. He has expressed his extreme reservations that extradition is not possible. I agree with him that this solution is a second best, but although my noble friend has given notice that he might put down an Amendment, and although I listened with interest to the noble Lord, Lord Chorley, in asking why the Bill could not extend to the whole United Kingdom, as I understand the noble and learned Lord the Lord Chancellor the difficulty is that it is virtually impossible for it so to extend, because it would be so difficult to import jury trial, to give one example, into this system. But let us be clear that once this extra-territorial jurisdiction is operating between Northern Ireland and the Republic, if someone commits an offence in Great Britain, as contained in Schedule 1, and makes his escape to the Republic and it is clear he cannot be touched, there will then be very justifiable anger throughout Great Britain. I make no political point on this matter, because I also am supporting the Bill. But it is a point that needs further thought before the next stage.
As it seemed to me that Clause 7 dealt to some extent with this problem, so far as explosions were concerned, I attempted to follow the noble and learned Lord as carefully as possible when he gave us a most thorough explanation of the clause. If I followed his explanation correctly, the clause will enable those not only conspiring but also causing an explosion in the Republic, to be tried in United Kingdom courts. But if bombers in Great Britain escape to the Republic then they cannot, as I understood the noble and learned Lord (as the Bail's Bill is at present drafted) be charged with actually causing an explosion. The noble and learned Lord assured the House that this omission had been drawn to the attention of the Irish Government. It is a matter of the first importance to the people of Great Britain and I will revert to it again on the next stage of the Bill.
From this side of the House, therefore, we support the intention of the Bill and the determination of both jurisdictions 970 to bring to trial terrorists wherever they are found in Ireland. I know my noble friend Lord Brookeborough and the noble Lord, Lord Chorley, are worried about the extent of the Bill. But may I point out in closing that to bring terrorists to book it has been necessary, in drafting this legislation, to include all extra-territorial offences in Northern Ireland as Scheduled offences under the Emergency Provisions Act, so that they will be subject to the wide powers of arrest and search in that Act, to be tried by a single judge, with these offences, as the noble and learned Lord the Lord Chancellor explained, specifically excluded from the expiry provisions of that Act.
It says much for the combined determination behind this legislation that there has been agreement on this point. Although the Gardiner Commission recorded that the single judge courts in Northern Ireland have worked fairly and well, and it still accepted they must continue on practical grounds, the Commission recorded its belief that trial by jury is the best form of trial for serious cases, and that it should be restored in Northern Ireland as soon as this becomes possible. Few noble Lords would dissent from that view. It is one of the reasons why the Emergency Provisions Act is renewable. But about this Bill let there be no misunderstanding. Subject to improvement, this system of extra-territorial jurisdiction is being set up until people's lives are no longer threatened by terrorism on either side of the Border.
§ 8.0 p.m.
§ The LORD CHANCELLORMy Lords, I am most grateful for the welcome, with certain criticisms which have been raised, which the Bill has received. In view of the lateness of the hour, I will not traverse every point that has been made. Obviously, we will have to go into detailed examination of the Bill in Committee. But there are certain matters which I apprehend your Lordships would expect me to deal with at this stage. The noble Viscount, Lord Brookeborough, was somewhat pessimistic about the extent to which this new machinery would work. With good will and real co-operation on both sides across the Border, there is every hope that it will work effectively. Certainly, it is the case that we pressed the machinery of 971 extradition as the most effective way of dealing with the problem, but the representatives of the Republic would not have that. Therefore, although this machinery of extra-territorial trials is not so good in our opinion as the extradition process, we think it marks a serious effort to deal with the problem of the fugitive offender.
The noble Viscount raised the constitutional question which has been put in the Republic that the complementary Irish Bill is bound to be challenged in the Republican courts on the grounds that it is unconstitutional and that a convicted person would succeed in an appeal to the Supreme Court. It is the case that, where there is a written Constitution, a Statute can always be challenged in the courts and it is not for me to speculate whether there will be such a challenge or what the result might be. But we are fulfilling our part with the present Bill. I venture to say that careful attention was paid by the Law Enforcement Commission to this constitutional question. For instance, in another field the Republic's representatives took great care in advising against the adoption of extradition, on the grounds that—as they saw it—it would be unconstitutional; but they accepted the validity of the extra-territorial method and, after all, the Irish representatives on the Commission included judges of the Supreme Court of the Republic, who ought, I hope, to have a pretty good idea of what is constitutional and what is not. Indeed, I understand that the Attorney General of the Republic is re-ported as having said that such a body of learned legal men would hardly pro-pose something unconstitutional, which is an attractive, but perhaps not necessarily self-evident, proposition.
However, my Lords, in speaking with a little confidence about this point, it is the case that the Foyle Fisheries Act 1952 provides complementary legislation. It provides that a person who commits a fishery offence in the Foyle area in Northern Ireland may be handed over for trial in the Republic and, conversely, that a resident of Northern Ire-land who commits a fishery offence in the Republic may be tried there or sent for trial in Northern Ireland. So far as I know, the principle involved in the 972 fisheries field has not been challenged in the Irish courts. What is appropriate for the fish may well be even more appropriate for terrorists, or at least so I hope.
My Lords, questions were raised more than once in the course of the discussion that as the Bill relates, with the exception of Clause 7, in all its provisions to Northern Ireland and applies to Northern Ireland, there may be a feeling that this might be offensive to Northern Ireland sentiment. The basis of the Bill and, indeed, of the complementary Irish Bill, is the need, which is recognised, I think, by both Governments, to find a way of ensuring that a person committing crimes of violence in one part of Ireland should not be permitted to escape justice by taking refuge in another part of the country. This is the problem with which we are faced. The existence of the land boundary clearly contributes to the problem. The fact that fugitives are not being returned to Northern Ireland very bitterly offends sentiment in Northern Ireland, as the noble Viscount has indicated, and the Bill is an attempt to deal with that, which is the main immediate problem. The figure that I gave of the number of cases of extradition awaiting service was 38. I have no evidence of the figure being as high as the 70 cases to which the noble Lord referred. However, that is a point of detail.
My noble friend Lord Chorley—rightly in my opinion—indicated the technicality of some of the provisions. I hope that he is being unduly pessimistic in contemplating a field day for my learned friends in this House sitting judicially. Perhaps I may mention one or two other matters which my noble friend raised. It is not true that the Irish Republic's Bill relates to the United Kingdom as a whole. The extra-territorial jurisdiction, other than the provision in Clause 7, is only reciprocal as between Northern Ireland and the Republic. My noble friend also asked me about the repeals in Schedule 6 and whether they applied to the whole of the United Kingdom or only to Northern Ireland. I think that question is answered in Clause 14(5). Parts II and III of Schedule 6 extend only to Northern Ireland and the rest of the repeals in Schedule 6 extend to the whole of the United Kingdom.
973 My Lords, I am grateful to the noble Lord, Lord Belstead, for indicating the support of the Opposition for the proposals in the Bill. He raised some questions about the effect of the Bill as a whole and in particular of Clauses 4 and 7 so far as offences committed by terrorists in this country are concerned. It may be useful if I again endeavour to answer the question whether the Irish provisions allow bombers who escape from Great Britain to be tried in the Republic for extra-territorial offences, if they get there. I think the answer is, up to a point, yes. If they were Irish citizens, they could be tried under the Irish Bill for a preparatory act done anywhere with intent to cause a serious explosion. That would include such a preparatory act with intent to cause a serious explosion in Great Britain. If the bombers were not Irish citizens, they could be tried only in the Republic for such an offence if it could be shown that the preparatory act, the conspiracy or the planning took place in the Republic.
Clause 4 of the Irish Bill does not, as the noble Lord pointed out—and this is a weakness at present which I readily concede—enable anyone, whether an Irish citizen or not, to be tried in the Republic under Section 28 of the Explosive Substances Act 1883 for the substantive offence of actually causing an explosion. So one has the curious situation of the conspiracy to cause an explosion being dealt with but not the substantive offence. I hope that the Irish authorities will give further thought to this matter and that we shall be able to obtain a satisfactory solution to the problem in the mood that has now developed of mutual determination to put an end to violence.
My Lords, I will not burden your Lordships further. The Government are grateful for the support that the Bill has received and we must now look to the future—that the machinery can be effectively implemented to deal with what has become a pernicious scandal.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.