Treaty on Extradition between Ireland and the United States: Motion.

Minister for Foreign Affairs (Mr. P. Barry)

I move:

That Dáil Éireann approves the terms of the Treaty on Extradition between Ireland and the United States of America signed in Washington on 13th July, 1983.

Negotiation of an extradition treaty between Ireland and the United States began in the mid-seventies with a view to widening the extent of our extradition arrangements which, in effect, had until then been confined to Europe. It was the first bilateral extradition treaty negotiated by the State.

Following agreement on a text acceptable to both parties, the treaty was concluded by the exchange of instruments of ratification on 15 November 1984 following a Government decision authorising ratification on 17 April 1984. On 20 November 1984 the Government made an order under section 8 of the Extradition Act, 1965, applying Part 2 of the Extradition Act to the United States of America from 15 December 1984. Copies of the order, incorporating the terms of the treaty, were laid before both Houses of the Oireachtas on 20 November 1984. The treaty was again laid before the Dáil on 24 October 1986.

Following the entry into force of the treaty, five persons wanted for prosecution for a variety of serious offences in the United States were then the subject of requests for extradition by the United States. In accordance with the procedures laid down in the treaty and in our Extradition Act, 1965, two of these persons were subsequently extradited, depsite challanges in the courts on various grounds.

The challenge by James Gilliland whose extradition was sought by the United States authorities succeeded on the ground that the treaty involved a charge on public funds and since its terms had not been approved by the Dáil, as required by Article 29.5.2 of the Constitution, the treaty was not validly in force in Ireland. Article 17 of the treaty deals with expenses and the Supreme Court decided that the expenses in question — that is those arising out of translation of documents, court proceedings and transportation of persons — constituted a charge within the meaning of Article 29 of the Constitution. The terms of the treaty, therefore, require Dáil approval before the State can be bound and be in a positon to implement them. In accordance with that Supreme Court decision, I am now asking the Dáil to approve the terms of the treaty.

The lack of an effective extradition arrangement with the United States was a very obvious gap in relation to our extradition commitments which were limited to those European countries which are parties to the European Convention on Extradition. The object of this treaty is to ensure more effective cooperation between our two countries in combating crime and in bringing to justice suspected criminals who seek to avoid prosecution by leaving the jurisdiction where the crime has been committed.

In negotiating the terms of the treaty, care was taken to ensure that its terms complied with the requirements of the Extradition Act, 1965. The terms of the treaty are before the House. In accordance with Article 2 the offences for which extradition may be granted will be offences which are punishable in both countries by imprisonment for a period of more than one year. This meets the requirements of section 10 of the Act.

I have already stated that Article 17 deals with expenses. It was this provision which was held by the Supreme Court in the Gilliland case to bring the treaty within the terms of Article 29.5.2 of the Constitution so that, before the State could be bound by the terms of the treaty, it was necessary that they be approved by this House. To enable the State to comply with the obligation it has entered into with the United States by virtue of this treaty, I therefore request the Dáil to approve its terms.

Dr. Woods

This motion, which we as a party will approve of here today, deals specifically with criminal matters and matters relating to the USA. It is regrettable that on the same day on which the Minister, after practically three years' delay, brings this matter before the House, he publishes the Extradition (European Convention on the Supression of Terrorism) Bill, 1986, which can only cause confusion in the minds of the public, the media and the Members of the House. There is a marked distinction between these two. The other major Bill which is presented today deals with political offences and the definition of a political offence, wheras this American treaty is, relatively speaking, a very simple, straightforward matter dealing with criminal affairs only and specifically excluding matters relating to a political offence or an offence connected with a political offence. For this reason it is regrettable that the Minister has chosen to bring the two together on the one day here in the House, one, of course, being published outside the House today and the other is before the House for consideration today. Naturally, it will lead to some confusion about these matters.

Dealing with the motion before us today, I have to say, "Here we go again". Dáil Éireann is being asked today to bail out this pathetic Coalition Government from international commitments which they have supposedly made on behalf of the Irish people but whose unauthorised procedures were in contravention of the Irish Constitution. We are confronted with the scenario of the Government once again belatedly showing respect for the constitutional rights of the people and coming back to the Dáil for the necessary ratification, having already committed this country to international agreements and having failed in their attempt to implement them. This type of political strategy is both ignorant and disrespectful. It places the country at serious risk of embarrassment at international level.

Worse still, it is an insult to the people of this land for whom the Constitution was placed in position to protect inviolable rights. Indeed, it must strike one that bringing out the second Bill on the same day as the Minister presents this motion in the House could help to avoid some of the embarrassement the Minister must feel today on having to come to the House with this measure, not having done so over the past three years. Dáil Éireann is being asked to approve of this motion today three years and four months after the signing of the treaty by Peter Sutherland, the then Attorney General, and two years after its ratification by the Minister for Foreign Affairs, Deputy Peter Barry, because of the bungling and incompetence of the Coalition Government and of the Ministers for Justice and Foreign Affairs.

The treaty, despite the fanfares, was not in Irish law worth the paper it was written on. The ink had not long dried on the signatures when the courts struck it down on the grounds that it was unconstitutionl because the Coalition failed to seek the necessary approval from Dáil Éireann in accordance with Article 29 of the Constitution. This debacle has been extremely embarrassing for the Government since it is yet another example of failure through the mishandling of extradition, this time with the USA and on a matter which surely must have been regarded as relatively straightforward.

Extraditon is based on the joint principles that it is in the interests of all civilised communities that an offender should not be allowed to escape justice by reason only of crossing national frontiers and that States should assist one another in bringing such fugitives to justice. Extradition is an essential part of the crimnal justice process as in any democratic judicial system it is also essential that the due process of law is accompanied by adequate safeguards for the individual. To provide judicial safeguards for our citizens we may have to consider introducing in appropriate cases a requirement that the extraditing State should produce sufficient evidence to show that there is a prima facie case for requiring the person concerned to stand trial on the charges set out in the extradition warrant.

After all, our citizens cannot be sent for trial before our own courts unless the prosecution can establish in the first instance the existence of a prima facie case in the District Court. If the service of a book of evidence which discloses a prima facie case is a prerequisite to a person being required to stand trial on a criminal charge in this country, it is not unduly onerous to require an extraditing State to provide that a book of evidence disclosing a prima facie case, be produced before the Irish court which is being asked to send a citizen out of the jurisdiction to face trial. This is a procedure which would be well worth considering. It is consistent with the administration of justice, would attract greater public confidence in the extradition process which has been undermined by the bungling of the Coalition Government in a number of cases and, at the same time, it would strengthen the process by which wanted criminals are brought to trial.

The process of extradition is one of the most sensitive acts in which a government can be involved. It involves the surrendering by the State under an extradition treaty or agreement of persons wanted in another for prosecution or punishment. Accordingly there is a heavy onus on those directly concerned with the arrangements for the extradition to ensure that great attention is given to the detailed requirements for extradition, both in the preparation of the treaties and agreements and in their execution.

The ordinary citizen must be able to have every confidence that the due process of the law will be fully recognised and strictly adhered to in relation to any case of extradition. There should not be short cuts or political expediency in the extradition process. It must be carried out in accordance with the due process of law and the principles of constitutional justice. Fortunately our courts, with their constitutional independence, have zealously guarded the citizen's rights in relation to extradition but the record of this Coalition in the area of extradition has been slipshod and careless and this is just another example of that approach. They have not applied the high standards needed to ensure the continuing smooth operation of the extradition process.

For example, in the McGlinchey case last year the Government decided not to pursue charges in this jurisdiction. Instead, the Attorney General, Mr. Peter Sutherland, on the Government's behalf adopted a very high political profile in ensuring that the McGlinchey extradition was rushed through the courts even though he was not a party to the proceedings. In due course McGlinchey was returned to stand trial here, and is now serving a sentence. In that case the State declined to accept an order of the High Court adjourning the application for McGlinchey's extradition in order to allow his lawyers to place certain legal and constitutional arguments before the court. Instead, this order was appealed against peremptorily and the Supreme Court was required to sit on St. Patrick's Day so that McGlinchey could be dispatched across the Border in unseemly haste without due consideration having been given by the State to the serious charges which should have been brought against him here.

In the Glenholmes fiasco earlier this year, the whole process of the law was brought into disrepute. Although that debacle was initiated by the incompetence of the British requesting authority, and their apparent contempt for the rule of law in Irish courts, it was compounded by the failure of the authorities here, acting under the general supervision of the Minister for Justice, to scrutinise properly the defective warrants before presenting them to the court. Following repeated bungling by the administration, the court ordered that Miss Glenholmes be freed and the extradition attempt failed totally, to the national and international embarrassment of the Government.

One of the most clearcut examples of the Government's failure to handle extradition competently was the case of Robert Trimboli. Trimboli was described as the most wanted man in Australia. His extradition was sought so that he could face charges there for drug trafficking, murder and forgery. The Government failure to handle his extradition successfully and Trimboli's release and subsequent disappearance held our legal process up to ridicule and shook the confidence of the ordinary citizen. It caused a major embarrassment in Australia. People here do not realise how major that embarrassment was in Australia. If people have contact with emigrants they will be told just how badly that man was wanted in Australia and how badly let down they felt when the Government mishandled the situation.

Only two people have been extradited to the USA since 1982 and both were extradited in 1984. Over the same period 140 persons were extradited to the UK.

This year attempts to extradite two more to the US have failed. As the Minister mentioned James Gilliland who is wanted in America in connection with a $9 million fraud, and Michael O'Shea who is wanted there for murder, were both released in July of this year on the direction of the Supreme Court. The Government had got it wrong once again and Ireland was seen abroad as a haven for fugitives from justice. These cases did not involve the overtones or complexities of political offences. They are straightforward criminal charges. We must have effective means of dealing with them and of meeting our international obligations in that regard.

It is somewhat disturbing that on the day on which this matter is being debated in the House, a further Bill which brings in the political offence is published and will be discussed in the media. It is interesting when we look at the 140 persons who were extradited to the UK over the last few years, to find that in 1982, 45 persons were extradited to Great Britain, in 1983, 26 persons were extradited, in 1984, there were 26 extraditions, in 1985 there were only five extraditions and up to 31 October 1986 there were only three extraditions to Great Britain. The reality of the extraditions is very different from the impression given by the Government as to their performance in this area. They give the impression that they are busily concerned about extradition and about doing a job that has to be done when in reality we find that again and again they are bungling extradition cases and only a very few people have been extradited this year. The motion to approve the terms of the American extradition treaty comes before Dáil Éireann because the courts have held that this treaty constitutes a charge or a potential charge on public funds and it therefore comes within the terms of Article 29.5.2 of the Constitution which provides that:

The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann.

Article 29.5.3 provides that section 5 of Article 29:

...shall not apply to agreements or conventions of a technical and administrative character.

This in effect means that such an agreement need not even be laid before the Dáil. Of course being laid before the Dáil does not involve being approved by the Dáil. This present extradition agreement is not merely technical and administrative. Clearly, as the courts have held, it involves a charge upon public funds. The Government laid great emphasis at the time of making the agreement with the US on this country not being used as a haven for gangsters, drug traffickers and murderers, which indeed it must not be. Yet, even so apparently obvious a step has having the agreement approved by the Dáil was not taken.

The Minister should explain his incompetence in relation to this procedure. Are we to take it this agreement was cobbled together by the Government with the same incompetence and carelessness for which they have become justifiably famous and which was probably best exemplified by the chaotic, confused and undignified frenzy which resulted in Australia's most wanted man being set free? Alternatively, are we seeing a more sinister development whereby the Government hope to prevent the Dáil giving proper consideration to this country's extradition arrangements with other States? Perhaps the Government felt that Dáil Éireann was not to be trusted with this kind of legislation? If that is the case, the sooner the Coalition resign and return the country to parliamentary democracy the better.

Perhaps the Minister will indicate how many treaties and arrangements regarding extradition are in existence which have neither been approved by the Dáil nor laid before it. What are Ireland's obligations regarding the vitally important matter of extradition? If the Government had their way, Dáil Éireann would not even have had an opportunity to discuss and consider our obligations under this treaty. As it is, we are only now considering a treaty on such an important matter as extradition which was signed by the Government in July 1983, over three years ago. How many times will the Government have to come back to the House to approve extradition arrangements with other countries?

In the light of the decision of the Supreme Court in regard to the American extradition treaty, are we to take it that Ireland no longer has enforceable extradition arrangements or agreements with anyone? Where does the current debacle over these two US extradition requests leave Ireland's international image? It appears the practical implications of the Government's failure to do their job as the Constitution directs are that many of our extraditon treaties may be invalid. The Minister must reassure the House on that point. He should also tell us the position at present in regard to the Australian treaty.

Can the Minister also tell us the position in regard to the extradition order in relation to Spain? The difficulty with treaties and arrangements made by Governments is that if we are dealing with legislation which will affect citizens here we have an opportunity in the House to suggest safeguards and protection for them. These matters are discussed comprehensively, we have an opportunity to question the Minister and to ensure that the legislation is the best possible given our knowledge at the time. What safeguards are in the American treaty for citizens of this country who are taken to the United States and who are in custody there? Fairly recently we introduced safeguards to protect people in custody or awaiting trial. These are very clear and stringent regulations and I should like to have the position clarified in regard to our citizens in other countries. What is the position in Spain in relation to prisoners under extradition arrangements? Will they be accorded the protections which we believe necessary while in custody and awaiting trial? We should give great attention to these very serious matters. It will not do to discover some time in the future that someone is not being treated properly because we were not prepared to give consideration to the preparation of these treaties. That is why it is so important that measures which look routine, as is the case with an arrangement with the US, should come before the House for discussion. It is regrettable that the Government decided earlier not to bring these matters before the House as they would have been supported without question but the wisdom of its Members could have been brought to bear on these proposals.

No other State can be sure that the Government are capable of negotiating and validly implementing any of their agreements because they cannot be relied on to comply with their own domestic, legal and constitutional requirements. When a treaty is negotiated those on the other side with whom you are dealing have a right to expect that you know what you are doing in respect of constitutional and legal domestic requirements and not to be subsequently disappointed in that regard. The present debacle indicates that the Government could not be relied on to have their homework done and to be clear, precise and effective in relation to our requirements. It is not the first time that the Government appear not to know their domestic legal requirements. Can we trust the Government's judgement regarding the constitutionality of the Single European Act? Ireland's image internationally is badly damaged yet again by the Government's lack of attention to essential details. Ireland is made to look as if it is difficult to negotiate with because the Government do not understand the limits of their powers and, consequently, are likely to bungle the arrangements. By not laying all international agreements before the House, as directed by the Constitution, the Government blatantly flout the Constitution and contribute towards the undermining of parliamentary democracy.

Having registered my personal and political objections to the Government's clumsy mishandling of this important issue, I will revert to the legislative decision before us. Taking everything into consideration and in the respectful interests of the welfare and safety of our people, Fianna Fáil support the motion and approve of the treaty on extradition between Ireland and the United States. This treaty relates to non-political offences and comes within the provisions of the 1965 Extradition Act. The Government have our full support in arrangements entered into to ensure that criminals such as drug traffickers, murderers and gangsters will not find a hiding place here. However, we are uneasy at the way in which this important and sensitive matter has been mishandled by the Government.

We want assurances that proper procedures will be followed and that the other existing extradition arrangements are in order. It must be noted that this latest Government smokescreen — when it has blown over — will leave behind a scene of bungled legislative manoeuvring which does nothing to encourage public or political confidence in them. As I said, this measure deals specifically with criminal matters and it can be disposed of very quickly by the House. It is extraordinary that when the Government considered the matter three years ago they did not put it before the House if they had any doubts about it. They should have asked the House to support them in these measures. They should have asked the House to offer suggestions to improve and protect the rights of individual citizens.

The details of the treaty which has been laid on the table of the House spell out a number of very interesting areas which could stand a great deal of discussion and, perhaps, improvement. That concerns me because the Government left lacunae in the agreement which should have been covered. They were left without detailed consideration. The Supreme Court even suggests that it might be preferable before the Government finally sign and ratify such agreements they have the views of the House. Therefore, they would develop agreements which we could all stand over in the future and they would be spared the embarrassment which they obviously must feel when a treaty is set aside by the Supreme Court and when they fail in attempts to extradite people, in this case to the United States. When one looks at the record and history in recent times of failures in relation to extradition one wonders if the Government give any detailed attention to these matters, or whether they are more concerned with the upfront high profile political elements which are obviously media grabbing and which receive great attention but behind the scenes they are not giving the attention which is required in matters such as these. However, having made these comments we are happy to support the motion.

An Leas-Cheann Comhairle

Deputy Hyland.

Mr. O'Malley

A Leas-Cheann Comhairle, I have been offering since the start.

An Leas-Cheann Comhairle

It is not too long started.

Mr. O'Malley

I am aware of that, but you are now proceeding to call two Deputies in succession from the same party which seems to be strange.

An Leas-Cheann Comhairle

The position, Deputy, is that no one is offering on the Government side. The main Opposition party have had their spokesman on justice in on the motion and I am now calling their junior spokesman. The Chair will do everything possible to bring Deputy O'Malley in on this limited debate.

Mr. Hyland

In contributing to this debate I should like, first of all, to draw the attention of the House to the increasing number of occasions on which legislation introduced by the Government has been declared unconstitutional by our courts for one reason or another. The frequency and seriousness of some of these mistakes make one feel grateful for the level of protection which our Constitution provides for the citizen and also for the dedication of our courts in upholding and safeguarding that protection on behalf of the citizen.

The number of incidents of Government action and decisions which have been deemed by our courts as unconstitutional range from the decision, for example, to deprive the underprivileged in our society of their entitlements under the social welfare code to the present debacle in handling serious criminal matters between neighbouring States such as the motion we are discussing today. I feel strongly that it is a serious reflection on this House and on our capacity to legislate within the framework of our Constitution that our citizens feel it necessary with increasing frequency to resort to our courts for justice and to challenge the unfairness and the unconstitutionality of some of those decisions. More disturbing still is the fact that more and more of these cases are now being successfully challenged. This raises serious doubts about the Government's capacity to legislate even within the law not to mention the social desirability of doing so within the framework of our Constitution.

It is important at all times that we acknowledge the citizen's right to resort to the courts under constitutional rights but it is also sad that they have to do so with such frequency. One cannot ignore either the prohibitive cost to the citizen in seeking justice in our courts or the cost to the State which in many cases is prohibitive and enormous. We need to take a serious look at our structures and the system under which we operate if our courts are now to be perceived as an alternative to Government as would now seem to be the case in an increasing number of cases. The unconstitutionality of Government decisions is bad enough when they relate to internal domestic matters but when they affect, as they do on this occasion, our relationships with neighbouring States and Governments then our credibility to govern and to manage our own affairs is in serious doubt and for this the Government must take the blame.

There can be no doubt that the controversy over the treaty of extradition between Ireland and the United States of America is an embarrassment and raises serious doubts about our capacity and willingness to come to grips with international crime. The House and the people should understand that on this occasion the court decision did not relate to legislation which was introduced and debated in this House but to a Government order in an area of national and international law which is certainly sensitive and very often controversial. The process of extradition always has been and will continue to be one of the most sensitive areas in which any Government can become involved. It does not help the process and the credibility of such decisions when the matter is handled and bungled by the Government in such an irresponsible way as this has been bungled by the Government.

The treaty of extradition which is the subject matter of this motion is one, as has already been indicated by our spokesman, Deputy Woods, which has the full backing and the full support of the Fianna Fáil Party. We as a party are anxious to co-operate with the Government and with neighbouring Governments and States, in particular the United States of America, in bringing to justice offenders which have been in serious breach of criminal law and who up to now have successfully evaded justice by crossing national frontiers. It is of the utmost importance in dealing with international terrorism and crime that an effective and fair system of extradition should operate and be seen and recognised as operating in particular by those who operate in the criminal world.

It is to be regretted that over three years after the signing of this treaty two people charged with the most grievous serious crimes have literally driven a coach and four through the terms of the treaty because of our failure in this House to comply with Article 29 of the Constitution. To say that it is an embarrassment is putting it mildly. Our reputation has been seriously damaged and our law is seen by terrorists as a pass to a safer haven where they can evade the administration of justice in the countries where they committed their crimes in the first instance. It is unfortunate and damaging at a time when it is increasingly important that we should establish ourselves as a progressive nation at international level that such incidents should occur. Those who observe our performance at international level will interpret our handling of this situation as incompetent and amateurish.

For our people at home it has not helped that international criminals could use our courts to establish their rights and to remain in exile here for the purpose of evading justice. This is no help for those people in society who have been living in fear because of the steady increase in crime. Criminals are freely circulating in society who should have been brought to justice in other countries as well as here. Our international image has been seriously damaged as a result of the way this proposal has been handled. We give our full support to the motion today and hope that it will enable the authorities to come to grips with international terrorism.

Mr. O'Malley

The terms of the Irish-American Extradition Treaty have been brought before the House for approval more by chance than be design. When the treaty was originally made, it was thought it could be given the force of law in this country by a mere order of the Government published in Iris Oifigiúil. That was erroneous. It was only when this treaty was challenged in the courts that it was generally realised that the treaty which involved a charge on public funds had not merely to be laid before the Dáil but actually to be approved by the Dáil. When one reads the terms of the treaty it is perfectly evident that there is a charge on public funds under Article 17. It is potentially quite a substantial charge in certain circumstances. How this error was made by the Ministers for Foreign Affairs and Justice and, presumably, those advising them I do not know. Perhaps they did not make an error. Perhaps they thought it better not to bring this treaty before the Dáil. The necessity to bring it before the Dáil arises because Article 29.5.1º.2º of the Constitution provides:

1º Every international agreement to which the State becomes a party shall be laid before Dáil Éireann.

2º The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann.

When the treaty was successfully challenged in the High Court, the State appealed to the Supreme Court, which divided three-two on the issue as to whether the "one judgment" rule in Article 34.4.5º applied to its verdict on the validity of the treaty. The majority held that the treaty was "a law" for the purpose of that Article and accordingly only one judgment was given on its validity. The Supreme Court then ruled that the treaty was not properly part of our law. As it involved a charge on public funds, it had to be approved by Dáil Éireann and not merely laid before this House. It is an ironic reflection that such an apparently technical reason should oblige the Government to seek the approval of this House for the treaty which the Supreme Court acknowledged as part of our law.

Many regulations are made which have the force of law and yet do not have the express approval of this House. However, few non-statutory regulations can have such potentially far-reaching effects as an extradition agreement. For, by its nature, an extradition agreement involves a great curtailment of the liberty and disruption of the life of the person extradited. To be sent in custody to America for an Irishman is no small administrative matter. Nor is the equivalent experience a small matter for an American extradited here. This treaty is not confined in its operation to fugitive offenders; on the contrary, it applies equally to Irish citizens and others alike. The decision which this House faces tonight is to alter the law for everyone in this State. By way of example, the treaty would render liable to extradition an Irish citizen accused, say, of theft or assault alleged to have been committed while visiting the US as a tourist. So although the reason for this debate is ostensibly technical and was not foreseen by those who made the treaty, still the result is that this House must today deliberate on a measure which has far-reaching implications for those who may be affected by it and which potentially affects the civil rights and liberties of all.

It seems to me to be desirable that all extradition treaties should have to be approved expressly by Dáil Éireann. I was somewhat amazed that the Minister in his rather flimsy, less than two-page opening speech referred to this treaty as the first bilateral extradition treaty negotiated by the State outside the context of the European Convention on Extradition of 1957. That surprises me. Even though it is by chance that it comes before the House, it is only right that all such treaties should come before the House from now on. If the issues involved include fundamental issues of liberty and standards of justice, it hardly seems right that the Dáil's approval should be dispensed with; still less that it should be required only by reason of a peripheral issue involved, namely a charge on public funds. In the United States, for example, all international treaties have to be approved by the Senate. It is interesting that one of the treaties considered in the past 12 months by the US Senate was the supplemental treaty of extradition between the United States and the United Kingdom. It was signed on behalf of the two Governments in Washington on 25 June 1985 but was not finally ratified by the foreign relations committee of the Senate until 12 June 1986, almost 12 months later. It was ratified by the committee and subsequently by the whole Senate with a number of significant amendments, as a result of the views of Senators of Irish extraction or dissent being expressed rather forcefully in the debates of the committees and of the Senate itself. I will return to this aspect later.

In the near future this House will have an opportunity to review and amend the law of extradition and it seems to me that one basic safeguard which must be introduced into our extradition laws is the requirement of express Dáil approval for extradition treaties or agreements. This is no technical matter; section 22 of the Extradition Act of 1965 sets out a framework for requiring the requesting state to produce evidence if required to justify the extradition. However, the section has no mandatory effect and recent treaties, including this one, have contained no requirement whatsoever to provide any evidence in support of the charges being made against the person to be extradited from Ireland.

There appears to be a policy here of foregoing any evidential safeguards to the citizen whose extradition is sought. While that may be administratively convenient, it is not an adequate protection for the individual whose life is radically changed and damaged by being surrendered in custody to await trial in a foreign country.

No Irish man or woman can be obliged to face in this country a trial for a serious offence unless the prosecutor has satisfied a court that he has evidence, which if believed, would be likely to result in the conviction of that person. The thinking behind this law is that no citizen should be compelled to submit to serious criminal process unless there is a prima facie case against him. Apart from being kept in custody pending trial the law seeks to protect the citizen from the worry, strain, anxiety and possible infarmy of being publicly arranged and tried unless there is a case for him to meet.

It seems to me that these principles which we regard as basic in our domestic criminal procedure, must surely be reflected in our legal procedures to compel our citizens to be surrendered in custody to face trial in a foreign state. It is my belief that there is need, for safeguards in this area and, even if the law of extradition need not correspond exactly with the domestic law of preliminary examination, there is nonetheless a total absence of such safeguards here. Indeed, what is more alarming, this treaty envisages a reprehensible discrimination between the rights of Irish people whose extradition is sought to the United States and the rights of Americans whose extradition is sought by Ireland.

Article VII.4.(c) of this treaty contains a provision which is quite surprising and somewhat alarming. Where Ireland seeks the extradition of a person from America, evidence in a sworn form of affidavit setting our reasonable grounds for believing that the person sought to be extradited is guilty of the offence is needed. However reasonable this provision may be in the eyes of the United States Senate and the United States courts, the fact remains that nobody in Ireland whose extradition is sought has any such protection. It seems safe to conclude that the safeguards applying to extradition from America were included at the insistence of the United States Government or Senate.

One can equally safely conclude that the Irish Government thought that such safeguards for their own citizens could be an irksome interference in a process of extradition which, in some perverted logic, is seen as most desirable when automatic, unreviewable and unstoppable.

This treaty, accordingly, on a basic question of civil liberties, lacks a mutuality which one might expect. There should be a sense of shame that the two-tiered standards embodied in the treaty flow from a want of care and a dismissive attitude to civil rights on the part of the Irish Government. While it is true that Article IX provides for the requested state to seek further information or evidence, that right does not extend to the person to be affected by the order, nor can any Irish court ask for its production.

The bottom line of this treaty is that an American whose extradition to Ireland is sought has the right to insist that sworn evidence as to the existence of a case against him and as to the substance of that case be produced in court in written form. The Irish Government have apparently wantonly surrendered a similar protection for their own citizens.

The recent supplementary treaty between the United States and the United Kingdom made provision to permit the individual whose extradition was sought from the United States to present evidence on the issue as to whether there was "probable cause" for the extradition. Probable cause is defined in that treaty as "sufficient evidence to warrant a man of reasonable caution in the belief that the person arrested ... is the person sought and ... that an offence has been committed by the accused." It appears clear that the United States Government are not prepared to reduce extradition to an administrative formality with judicial trappings. The evidence suggests that both the Irish and British Governments share an attitude to extradition which gives the rights of the person affected a low priority indeed.

This is a very serious matter. It betokens a profoundly depressing forelock tugging attitude in our standards and principles of justice, in our respect for the rights of our own citizens and in our respect for our own international standing. This utterly wrong imbalance in this treaty is not justified by any practical considerations. One is forced to the conclusion that this Government, in the matter of extradition law, are disposed to defer only to raison d'etat and are utterly blind to the civil liberation implications of what they are about. The same issues and problems may arise in one form or another in connection with the forthcoming legislation published today on the European Convention on the Suppression of Terrorism. What is unacceptable here must surely be unacceptable in that context as well.

I wish to conclude by reminding the Government that while extradition law is of fundamental importance, especially in this world of easy travel, international crime and international terrorism, and while domestic safeguards for the lives, liberties and bodily intergrity of the citizens are increasingly devalued, if national borders provide safe havens for murderes, kidnappers, extortionists, drug dealers and other wrongdoers, it equally remains the case that extradition law reforms part of domestic law and should reflect the values, principles and safeguards which are enshrined in domestic law.

I call upon this House, therefore, to decline to condone a double standard in these matters. I call for the amendment of a treaty which is manifestly and unjustly lacking in mutuality, and which, for reasons of state, unjustifiably abandons safeguards which the United States insist upon for their own citizens. This amendment I propose can easily be done by simply deleting the words, "in the case of a request emanating from Ireland", from Artical VIII.4.(c) of the treaty. Subject to this deletion, it is important that our procedures for extradition between the United States and Ireland should be ratified and put into effect on a basis of mutuality so that we would not have a repetition of the appalling situation we had within the past few years where a number of people wanted on extremely serious crimes were not extradited from Ireland, due to the incompetence of the Government in the drawing up of this treaty.

It is well for us to cast our minds back to the time when this treaty was originally signed — in Washington, on 13 July 1983 by Mr. Sutherland, the then Attorney General. The whole panoply of the Coalition's media manipulation system was produced, and we know how capable that is. Mr. Sutherland, almost at the stroke of his pen, was ridding this country of all kinds of dubious Americans who were hiding as figitives from justice. Today, we are reatifying this treaty not a week or two later but three and a half years later. The Government came here today and although in his opening statement the Minister made no reference to their errors, tried to surreptitiously get this through as if it were a minor technical amendment caused by some petty point raised by a backroom lawyer. I would love to see the reality, which is what we are facing today three and a half years later, given the same fanfare as the event in Washington was given in July 1983.

So far as these extradition treaties are concerned the House would be well advised to be very careful, to try to insist, as I have, that all of them should be brought here. The circumstance in which the extradition treaty with Australia was made recently were quite appalling by the standards of any civilised society. We had no treaty with Australia. A man was discovered to be in this country. He was arrested under section 30 of the Offences Against the State Act, 1939, which has nothing to do with frauds in Australia. He was held in custody for 48 hours improperly under the Act, as the court subsequently found. While he was in custody the Government cobbled together a treaty with Australia in order to cover him. No such treaty existed at the time of his original arrest but it did, apparently, at the end of the 48 hours. That kind of thing may be good enough in parts of Central or South America but it is not good enough here. This House should make it very clear that it is not good enough here. That is why we should look, if we care, with greater care at this treaty, three and a half years late before us, because the Government botched it up in the way to which we have become so used in recent years.

I have suggested a small amendment, small in terms of words, just deleting one line from this treaty in order to restore mutuality to it. No self-respecting, independent country would have it otherwise. Under the Standing Orders of this House I can find no way in which I can put down an amendment to the treaty. That is completely unsatisfactory because — as I have already said — the Foreign Relations Committee of the United States Senate were able to amend the supplementary treaty between the United States and the United Kingdom. It was open to the United States Senate to do so, it was open to the House of Commons in Britain and, so far as this treaty is concerned, it should be open to this House. It was open to the United States Senate to amend it if they thought it necessary or fit which, as far as I know, they did not. Therefore, they concede our right to amend it. I do not deny the United States Senate their right to amend this treaty if they saw fit. I am sure they do not deny us our right to do so. Our procedures should reflect that right.

Having made the point clear I propose to put down such an amendment at least, to ask the Government to accept it; to ask the House, if they do not accept it, to vote on the matter because it is a matter of importance. It is quite unsatisfactory that we have to take a treaty that is otherwise necessary with this major flaw even three and a half years after its original signature. It is a major flaw that there should be that lack of mutuality, that Irish citizens should be treated in one way while American citizens are treated in a way that safeguards them to a far greater degree. I seek your guidance. Sir, on how that amendment could be made. It could not be regarded by the House as satisfactory that this or any other treaty, or a document of that kind that comes before us, is immune from amendment in this House. I do not want to reject the treaty outright. I totally agree with all of it, except for the one line. I remain suspicious of the circumstances through the continual messing with which the Government have gone on in respect of this and other extradition treaties.

Minister of State at the Department of Foreign Affairs (Mr. G. Birmingham)

I should like to begin by thanking those Deputies who have contributed. Some of those Deputies, enjoying your tolerant guidance. Sir, felt free to wander far and wide way beyond the terms of the motion. It is worth reminding the House at this stage just what the motion is. It is a simple one confined to one specific issue. That did not stop Deputy Woods, for example, from regarding himself as free, because of the mention of the word extradition to raise every extradition issue that has arisen anywhere in the Law Reports or anywhere on the globe in recent years. None of those is relevant. Neither did he feel obliged to stick to the facts. For example, he spoke about a three year delay. There has been no three year delay. This matter was decided by the Supreme Court in July of this year only.

Equally Deputy O'Malley suggested that the Government came in sheepishly. Let me say that nobody is in the remotest bit sheepish about this. The factual situation is that the treaty was concluded, a treaty which has objectives to which every Member of this House and indeed every citizen should subscribe. It is worth recalling that central to what this debate is all about is the belief that those who have perpetrated serious crimes should not be able to seek refuge in this State but should be obliged to stand trial, or indeed those whom we require to see standing trial in this State should not be able to seek refuge in the United States. That is the core of what this treaty and indeed this debate are all about.

The treaty comes to this House because of the conclusions reached by the Supreme Court with regard to the relevance of Article 29.5.2 of the Constitution. Let me remind the House that this was the first occasion on which the Supreme Court came to consider that provision. Deputy O'Malley suggested — with high indignation — that a cursory glance at the treaty would have made it obvious to everybody that a substantial charge on public funds was involved. Let me remind him that this Article was considered in the High Court by Mr. Justice Egan in the Mac Caud case and he reached a very different conclusion. He saw nothing obvious about it whatever and did not regard it as a matter that should properly have been brought before the Dáil. Equally in his contribution, he referred to the fact that, in their judgement, the Supreme Court considered the question about the number of judgements they were in a position to deliver.

While I suppose we should not be speculating as to what was in the minds of the members of the Supreme Court, one might think it was unlikely that they would have felt obliged to engage in that exercise if they had all been of one mind in relation to this aspect. Therefore, there was nothing obvious about what has now transpired. What has transpired was a point of some novelty, presented with some ingenuity by the counsel engaged in the case, so be it. It now falls on the Government to consider what action to take and the Government have done so. They have done the obvious thing, which is to bring the matter before the Dáil and seek its approval for the terms of the treaty.

The complaint has been made by Deputy O'Malley that there is a want of mutuality. It is true that different procedures are contemplated but those differences arise from our respective domestic laws. The requirements of the United States are stipulated because of their obligations under United States domestic law. The requirements we provide are done by reason of the terms of the Extradition Act. There is nothing sinister about that; nothing slipshod about that; nothing improper about that. A treaty was negotiated. The terms of the treaty were available for all to see and no protest on the substance of its terms was raised in any quarter.

Deputy O'Malley wanted to know why there was not an earlier opportunity to have a look at all of this. There was an earlier opportunity to have a look at all of this when, as was required by the Extradition Act, the terms of the treaty were laid before the Dáil. Deputy O'Malley, Deputy Woods or no other Member of this House exercised their rights to put down in a motion seeking to annul it——

Mr. O'Malley

We have no rights. We can put down a motion but it will not be discussed. The Minister knows that well. The Government will not allow time for it.

Mr. G. Birmingham

But my recollection at that stage was that the Deputy was sitting somewhere else in the House and that, as a Member of the Opposition, he would have been in a position to ensure time for the debate. Be that as it may, wherever he was sitting, neither he nor any other Members of the House felt there was anything inappropriate, unbalanced, or anything to cause concern in the terms of the motion.

What has transpired is that a procedural question has arisen, the question of the lack of prior ratification by the Dáil. The treaty therefore comes to the Dáil on that simple fact of righting the point of procedure. That is the only issue of concern to the House today. It would be an extraordinary breach of faith on the part of Members of this House if at this stage they were to decline to give their approval to this treaty. It would be a breach of faith that the public would find hard to understand.

It was suggested that the terms of the treaty indicate a certain lack of concern about civil liberties. It was suggested in particular that this could lead to the view that we were less concerned than the people of the United States. Members of this House are far more familar than I am with extradition practice throughout this Continent. They will all agree that the trend over many years has been that the requirement of a prima facie case does not have a place between neighbouring countries and countries with a common set of values. However, there will be an opportunity to debate some of those points in the not too distant future when they will be directly relevant to the instruments before the House. Today we have a much simpler task. We are simply righting a point of procedure and I invite the House to do so.

Mr. O'Malley

Why did the Minister not deal with the point I made about the lack of mutuality in article 8 whereby a prima facie case has to be shown against citizens in the United States when the request comes from Ireland but the same does not apply under article 8 when the request comes from the United States for people living in Ireland.

Dáil Éireann debate -
Tuesday, 25 Nov 1986