The Government will not be able to revoke the freedoms of paramilitary fugitives granted pardons under "on-the-run legislation" published yesterday if they subsequently return to terrorism, it has emerged.
Minister for Justice Michael McDowell yesterday published proposals to deal with the so-called "on-the-runs" in tandem with a move by Northern Secretary Peter Hain.
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to go before Westminster early in the New Year, the British have decided to release people under licence, which can be withdrawn if individuals break the terms of their release.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".
The qualifying criteria for eligibility to the British scheme are:
* the person does not support a specified organisation;
* the person is not concerned or likely to be concerned in the commission, preparation or instigation of acts of terrorism;
* the person has not been convicted of a terrorist-related offence committed on or after April 10th, 1998;
* that no sentence of imprisonment for a term of five years or more has been imposed on the person on conviction of an offence committed on or after April 10th, 1998.
Welcoming the legislation, Sinn Féin MP for Newry & Armagh, Conor Murphy said the British and Irish governments had publicly recognised years ago that an anomaly had arisen.
Hundreds of prisoners, both loyalist and republican, in jail before the Belfast agreement, were released on both sides of the Border after the agreement was accepted by referendum.
The "on-the-run" concessions would "resolve the cases of a very small number of people who wish to return home" and was a "sensible" decision so that confidence can be built for the future, he said.
Speaking in Dublin, however, the leader of the Ulster Unionists, Sir Reg Empey, contrasted the legislation with British prime minister Tony Blair's defeated desire for a 90-day internment of UK terror suspects.
The prisoners released after the Belfast agreement had been through the courts and had been found guilty, while the latest group will not be found guilty by any court, he said.
"We are completely standing our legal system on its head. Thousands of people throughout these islands have had no justice. What about them?" Sir Reg asked.
