Michael McDowell (Dublin South East, Progressive Democrats)

I thank Senators for their considered response to the Bill being debated over the past two days. I thank the generally supportive Senators for their comments also.

I should explain the delay with this legislation. I introduced the legislation in 2002 in the Dáil where we had a very interesting Second Stage debate which was informed by a number of criticisms made of the Bill. Those criticisms included the views of the Human Rights Commission. I found myself facing a fundamental dilemma that the Bill as introduced failed to distinguish between resistance to tyranny on the one hand and terror on the other. The dilemma I faced in a criminal law measure was how I could accommodate that distinction. This is not something that is easy to reduce to a paragraph or a number of sections, or even a Part of a Bill.

If we left it as the case that somehow it was a defence against a prosecution that the object of the terrorist act was somehow supportive of a tyranny and therefore it was no offence to commit the various acts in Ireland, we would have been left with a very strange outcome where juries would have to sit for hours on end working out the politics of whatever it might be, for example, Polisario v. Morocco or contending factions in various countries around the world. This is without resorting to the analogy used yesterday in debate about where Count von Stauffenberg would have stood with his bomb in eastern Prussia under the terms of this Bill.

It was not easy to deal with this issue and it required much debate. It required debate among the various parts of Government. The Department of Foreign Affairs, the Office of the Attorney General and my Department all had to be involved. Eventually it became clear to us, not without considerable and vigorous debate, that the only mechanism we could deploy in criminal law was the Attorney General's intervention. Otherwise juries or non-jury courts would have to consider broadly political issues in deciding whether a person did or did not have a defence. Imperfect as the Attorney General's formula may seem to some, I challenge anybody to come up with a more workable one. If another had been apparent to us, we would have acted more quickly.

By the time that lengthy, philosophical and procedural debate was over, approximately 18 months had elapsed. We had to return with the legislation to the Dáil and fight for time for Committee Stage and on completion bring it to this House, which explains the delay to some extent. The delay was not due to indolence of any kind, but to the consideration of the powerful points made on Second Stage debate, coupled with outside criticisms from bodies such as the Human Rights Commission.

We have international obligations. An added complexity was that it was not open to me simply to write the legislation exactly as I would wish. Having agreed to a framework decision with a particular definition of terrorism, and even though there is latitude with the framework decision procedure, I had an international law obligation and a constitutional obligation under Irish law to implement the framework decision. That is another reason it was desirable that the Attorney General's formula should be included in this Bill. If I had tried to approach the issue from some other avenue, I could have been accused by fellow Ministers in the European Union of seeking to repudiate my obligations under the framework decision with regard to terrorism.

The Bill is as it is. There will be Committee Stage debate in this House where I intend to bring and to listen to proposals for further amendments. I indicated that one of the things I propose to do with regard to Committee Stage amendments is to deal with the question of data retention in so far as it is necessary to underpin the fight against international terrorism. It is desirable that our law on this matter should be beyond debate. It should never be a question of differing interpretations, let us say, for example, between the Data Commissioner and the Minister for Communications, Marine and Natural Resources, as to what is or is not a legitimate use of the power to require telecommunications companies to keep records of communications so that they can afterwards be examined in the context of criminal investigations. The Bill is largely to do with the introduction of provisions into Irish law to extend our law in an adequate way to deal with international terrorism, as is required by various international instruments to which we are party.

In the course of the debate it was understandable that the domestic situation and the question of the use of violence in criminality for political purposes, which is really the heart of terrorism, was bound to come to the fore. I thank Senators who supported the Government's position in taking a stance for democratic values against those who would seek to dilute, pervert or distort them for their own political purposes.

I am not an avenging ideologue. I am not a person who believes in obscurantist ideology or purity of position, which abandons the necessity for politicians to compromise properly on occasions. One must be able to see the other side of the coin, to take risks and be pragmatic so as to forward the process of reconciliation by whatever means are at our disposal. Therefore, when I speak and act on the question of the rule of law, the criminal challenge to it and the use of terrorism to challenge lawful authority in Ireland, I do not do it from some kind of moral pulpit. I do so purely on the basis of what I believe is pragmatically necessary on a day-to-day basis. As I previously said in this House, it would be easy on occasions to take refuge from the challenge of politics by simply resorting to ideologically pure positions and simply washing one's hands of the difficult aspects of bringing about reconciliation on this island.

I have never taken the view that one can take refuge in absolutist positions. That said, I am equally strongly of the view that there are certain standards and thresholds below which democratic politicians cannot go and should not be asked to go. It is a matter of great import for the future of Irish democracy that there should be a clear understanding among the public that their democratically elected politicians uphold the Constitution, the authority of the State and the values and rights that subtend our Constitution and would not allow them to be swept away by anybody's political project. Therefore, I make no apology for taking a strong stance against the attempts by the Provisional movement to pervert the Irish constitutional process and the democratic process on this island and to trample down democratic values and use every means at its disposal, foul and fair, to advance its project without regard to the rights of others and to democratic values.

In particular, I make no apology for demanding that anybody who seeks to have a share in a legitimate democratic authority, the executive authority exercised under the governmental institutions on either part of this island, should abide exclusively by peaceful, democratic and lawful means, first, to further his or her political project and, second, in the manner in which he or she would exercise that executive power. Therefore, if people want to seek election to assemblies north or south of the Border or to represent themselves as people seeking a mandate, they must do so within a constitutional framework and whether it is North or South, the constitutional framework is based on constitutional values.

They are the Mitchell principles at their very least north of the Border. They are the terms of the Good Friday Agreement north of the Border and south of the Border they are the constitutional values which we all uphold here. There is no circumventing or avoiding them and there is no licence by any mark on any ballot paper in any election held under our Constitution in this Republic to damage that Constitution or to seek to change it other than through the constitutional process envisaged by it. If any Minister for Justice, Equality and Law Reform or other Minister or elected politician in office or otherwise lost sight of that fundamental truth, he or she would be short-changing the Irish people not simply committing a sin of omission in regard to democracy, but also doing lasting damage to our capacity to be an independent democracy which is so important to us.

There are some very basic and simple propositions. There is no room in government, North or South, for anybody under any circumstances who would countenance the use of violence or illegality for political purposes. There is no room for those who, because of their ideological convictions, cannot distinguish between what is and is not an infringement of the law. I was not trying to score some clever point when the status of Mrs. Jean McConville's killing became the subject of debate between Mitchell McLaughlin and me recently on "Questions and Answers". I am not interested in whether George Washington, Eoin MacNeill or Padraic Pearse were rebels in English law. I am not interested in fencing about political theories or ideologies or competing legitimacies. My issue is simply this — as Minister for Justice, Equality and Law Reform, if I am asked to engage in an enterprise which involved taking other people at face value, if they genuinely to this day are of the view that certain actions taken by people allied with them were not illegal and, in fact, were lawful, then I have to view them in a very different way.

The barbarity of what happened to Mrs. Jean McConville was useful as an example only because it underlined that in the current ideology and mindset of the Provisional movement such activity is legitimate. For some reason they can condemn it and say it is wrong but it is also legitimate because they believe in a legal order which authorises the use of such barbarity. Therefore, when it emerged later in another one of these encounters with a Member of the European Parliament, Mary Lou McDonald, that she was not in a position to say that the shooting of Detective Garda Jerry McCabe was criminal and when I heard Mr. Gerry Adams say on the radio that no action by a Provisional volunteer which is authorised is criminal, then I have to ask myself with what kind of language I am dealing, to what agreement I am being asked to subscribe and what understanding I share with people who are trying to negotiate with the Government.

The logic of all of that, which appears to have escaped a number of people in the media, is that if it was no crime to shoot dead Detective Garda Jerry McCabe, it would be no crime to do it again. The plea of guilty in that court was another piece of fraudulence because the people involved in it believed they had done nothing wrong under criminal law. All the propaganda since to get them out of prison as prisoners of war, as they call themselves in their communications to Sinn Féin Ard-Fheiseanna and in articles in An Phoblacht, represents the true situation and carries the endorsement of those who went from the other House to pose with them for a photograph which was published in An Phoblacht. I am asked, as Minister for Justice, Equality and Law Reform, to accept that none of this is criminal and people who pose as statesmen stand up in public and state that it is not criminal. When I ask them in a different context to give me a guarantee that a new dispensation will be based on the proposition that neither they nor anyone associated with them would commit crimes, I suddenly realise we are talking about two very different things. They are asking for a licence to do whatever they would do and tell me I am to abide by the laws of this State but that they are not so obliged. That is a very radical proposition and one which we cannot countenance or live with.

What is going on at the moment is of major importance. It is not just political manoeuvring or one group of politicians facing down another. Rather, it is democracy and constitutionalism in Ireland saying to those, who have in part and ambiguously and ambivalently subscribed by some process to the Good Friday Agreement, that the Agreement sticks and carries with it certain obligations on their part which cannot be departed from or diluted.

All ambiguity on this issue is now destructive. Whereas in the past it may have been the case that some constructive ambiguity was required to move people into the democratic process, all ambiguity on these fundamental principles is now destructive.

It was suggested in one of today's newspapers that I was untruthful when I stated that the parties to the discussions with the Taoiseach had agreed that Sinn Féin should go and reflect on its situation. I reject that suggestion entirely. I recall one of the Sinn Féin interlocutors stating that if the Government persisted in its attitude, Sinn Féin would have to reflect on the situation. I recall one of the Government interlocutors saying that was one point of agreement between the parties because it was very clear that Sinn Féin would have to go and reflect on the situation. The Government is not changing its position on these fundamental matters.

There has been discussion in this House about the nature of the provisional movement and it is about time we began to talk in plain, simple ordinary language about that with which we are dealing. The Taoiseach has stated that Sinn Féin and the IRA are two sides of the same coin, which is a very good analogy because each side is not the other side but they are inextricably linked and neither side can say it is independent of the other — that is the truth of the matter. Neither can either side absolve itself by looking to its characteristics and stating that it has nothing to do with what is on the other side of the coin. The fact is that all leading provisionals subscribe to the proposition that the lawful power of the Executive, Legislature and Judiciary of the First and Second Dáil are now vested in the IRA — it is what they believe. When this is put up to them on television, those naive enough not to engage in prevarication in an Armani suit — those who get caught — admit this is the truth.

This group has in the past carried out appalling atrocities. I am not saying it is the only group in Northern Ireland that has engaged in atrocities, far from it. However, it has engaged in appalling atrocities. The same intellectual activity which drove a man standing at the railway platform in Auschwitz to send people right and left into different groups for different fates was standing in a balaclava at Teebane crossroads when a group of workers was segregated into Protestant and Catholic and the former group was riddled by the Provisional IRA. On this Holocaust memorial week, this spirit is not dead. It is the same spirit which had Ratko Mladic and others separate the boys from others at Srebrenica and bring them to quarries to execute them with the same ferocity. If what happened at Teebane crossroads is not a crime in the minds of Gerry Adams and Martin McGuinness, it is they who have a problem — not us.