The suggestion from the new Ulster Unionist Party leader, Jon Burrows, that the Irish Government should apologise for refusing to extradite terrorist suspects during the Troubles has been rejected out of hand by the Taoiseach and by the Minister for Foreign Affairs. But perhaps Burrows has a point.
It is undeniable that for almost two decades known IRA killers were given immunity from extradition by the courts in the Republic. This allowed them to continue their depredations on the Northern side of the border, safe in the knowledge that as long as they made it back to the southern side they would not be handed back to face justice.
The rationale was a decision by the Supreme Court that the IRA activities amounted to a “political offence”, as described in the 1965 Extradition Act. This state of affairs infuriated British authorities, but what is not as widely known is that the Irish definition of a “political offence” was hotly contested by some members of the Supreme Court.
The court’s approach to the issue is detailed in a book by the editor of The Irish Times, Ruadhán Mac Cormaic, The Supreme Court. While a majority on the court, led by Cearbhall Ó Dálaigh and Brian Walsh, were adamant that the “political offence” claim was valid for violent offences, it was regularly contested by other members of the court.
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Billy FitzGerald, who was chief justice from 1972 to 1974, took a very different view to his colleagues. He consistently dissented from the majority and backed extradition for terrorist-type offences.
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In an extraordinary exchange of letters in 1973 with Lord Hailsham, then head of the judiciary in England and Wales, he wrote: “The appalling situation now existing in Northern Ireland would justify legislation in this country and in England providing that acts of violence should be deemed not to be political offences. I fully appreciate that in the present atmosphere this outlook of mine is political dynamite.”
FitzGerald hit on the nub of the problem. The ultimate responsibility for closing the “political offence” loophole for IRA activities lay with the political system. The Cosgrave government in the 1970s made an attempt to get around this by giving the Irish courts the power to try people for offences committed outside the State, but this proved unworkable.
In 1977, the government refused to sign the European Convention on the Suppression of Terrorism, citing constitutional difficulties. Ireland was the only European country apart from Malta to refuse to sign the convention.
It was not until Garret FitzGerald became taoiseach in the 1980s that the political system began to face up to the issue. During his negotiations with Margaret Thatcher, which culminated in the Anglo-Irish Agreement of 1985, the British repeatedly raised the question of extradition.
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The issue came to a head with the arrest of the notorious Dominic McGlinchey in March 1984. By this stage, the make-up of the Supreme Court had changed significantly and the new chief justice, Tom O’Higgins, convened the court on a Saturday night and ordered the extradition of McGlinchey.
In his judgment, he said that terrorist violence was “often the antithesis of what could reasonably be regarded as political”. He came up with a new definition of a political offence as being involved “in what reasonable, civilised people would regard as political activity”.
Later in that year, the government announced it would incorporate the European Convention on the Suppression of Terrorism into Irish law in tandem with the Anglo Irish Agreement to facilitate the extradition of terrorist suspects.
However, the move met fierce resistance from Charles Haughey and Fianna Fáil. Michael D Higgins and some other left-wing Labour TDs also had reservations about the decision, and the Government only managed to get the legislation passed by incorporating a proviso that it would not come into operation for 12 months.
The issue came back to haunt Haughey as he was in power when the legislation was due to come into effect in December 1987. He faced a concerted campaign from within his own party not to proceed and it appeared for a time that he might be forced by his backbenchers to ditch the legislation.
A few weeks before the deadline, the IRA bombed the Remembrance Sunday ceremony in Enniskillen, Co Fermanagh, killing 11 people. The atrocity and the moving account of the explosion by Gordon Wilson, whose daughter Marie was among the dead, had a profound impact on the public mood.
Haughey responded by devising a formula to allow extradition to go ahead alongside safeguards that involved the attorney general vetting all extradition applications. Despite that, extradition continued to make the headlines in the following years as attempts to extradite terror suspects collapsed in confusion at court hearings.
Whatever way the issue is looked at, there is no escaping that for most of the Troubles the Irish State adopted a stance on extradition that facilitated IRA activity on the other side of the Border. A Government apology is not on the agenda, but some serious reflection about the State’s behaviour is certainly warranted.
