On the differing approaches to dealing with OTRs

The Irish Times continues its focus on the Irish government’s proposals as announced yesterday by the Irish Minister for Justice Michael McDowell, intended to mirror the British government’s introduction of legislation on OTRs. Two articles worth noting today, firstly this report suggesting that only a handful of IRA members would be eligible under the Irish government’s proposals – “Last night, Government sources said they believed the scheme would cover about six IRA members, though they could not identify them”[subs req]. However, this report points out that, unlike the release under licence proposed in the UK legislation, “The [Irish] Government will not be able to revoke the freedoms of paramilitary fugitives granted pardons under ‘on-the-run legislation'”. Extracts over the fold.Also worth pointing out that, although Michael McDowell explicitly excludes those still wanted in connection with the murder of Jerry McCabe, there is still no mention of other fugitives, such as those responsible for the Dublin and Monaghan bombings –

The term “On the Runs” in the present context relates to persons wanted in connection with offences committed prior to the Good Friday Agreement who, if they had been serving sentences for these offences at the time of the Agreement, would have been released early under that Agreement.

It is the intention, in the light of the Constitutional framework in this jurisdiction, to deal with these cases under Article 13.6 of Bunreacht na hEireann. A scheme for dealing with “On the Runs” in this jurisdiction will be operated in accordance with that provision. An Eligibility Body will be established to deal with these cases.

“Qualifying Persons” will generally cover persons who, before 10 April, 1998, committed offences in connection with the situation in Northern Ireland once these persons are not affiliated to, nor support, organisations which are not maintaining a complete and unequivocal ceasefire. The Eligibility Body will determine whether a person is a “qualifying person” and shall notify the Minister who in turn would submit cases to Government with a view to recommending that the President use her powers under Article 13.6. The scheme, as already indicated, would not apply to persons in relation to offences connected with the killing of Garda Jerry McCabe and the wounding of Garda Ben O’Sullivan.

From the first report, by Mark Hennessy[subs req] –

The [Irish] Government has decided that legislation is not necessary to grant the pardons, which the President will make in line with powers vested in her under Article 13.6 of Bunreacht na hÉireann.

Those who qualify will have committed offences before the Belfast Agreement was reached on April 10th, 1998 and will be “not affiliated to, nor support” terrorist organisations.

Article 13.6 of Bunreacht na hÉireann states: “The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on other authorities.”

This power is exercisable by the President on the advice of the Government.

The Minister for Justice, Equality and Law Reform will establish an eligibility board headed by a senior counsel to adjudicate on applications for pardon, and then make recommendations to the Minister, who would subsequently bring them to the Cabinet.

Though the scheme does not need legislation, the Government does not intend to move on it until the British government has its legislation through the Houses of Commons and Lords, though this is far from guaranteed given that Labour does not have a Lords majority.

And the second report notes, also by Mark Hennessy,[subs] highlights the contrast.. and raises questions over the use of pardons –

Under legislation due to go before Westminster early in the New Year, the British have decided to release people under licence, which can be withdrawn if individuals break the terms of their release.

Hundreds of people quit Northern Ireland during the Troubles after they had been questioned about terrorist offences, or after they were released on bail, or after they escaped from prison.

Under the Irish system, an eligibility board to be appointed by Mr McDowell will review the cases of people seeking freedom from prosecution.

The board will then make a recommendation to the Minister, who will, in turn, make a recommendation to the Cabinet.

If a pardon is recommended, President Mary McAleese will award one, according to Article 13.6 of the Constitution.

A full pardon is being offered because the Government would have to get legislation passed by the Oireachtas if it wanted to offer licences, which could be revoked because of bad behaviour.

Last night, Fine Gael TD Jim O’Keeffe questioned the Government’s handling of the situation, pointing out that no consultation had taken place with the Opposition.

A “cursory examination” of the Government’s plans raises questions about the constitutionality of the use of Article 13.6 to offer pardons to people for crimes for which they have never been convicted.

The licence system, which has been used in the past, would mean that freedom “would be subject to conditionality, and that it could be revoked if someone reverted to illegality”.