I move: "That the Bill be now read a Second Time".
The purpose of this Bill is to give effect to the European Convention on the Suppression of Terrorism which was prepared under the auspices of the Council of Europe and opened for signature in 1977. The Convention has now been signed by all 21 member states of the Council of Europe and remains to be ratified only by France, Greece, Malta and this country. I shall deal later with the reservations entered by some of the signatories. The aim of the convention is to assist in the suppression of terrorism by strengthening extradition and mutual assistance arrangements between the member states of the Council of Europe in cases concerning persons accused or convicted of acts of terrorism.
On the occasion of the signing of the Anglo-Irish Agreement at Hillsborough in November last year, the Taoiseach indicated the Government's intention to accede to the convention against the background of the commitment entered into by the Irish and British Governments to work together to achieve early progress in relation to certain matters of mutual concern in Northern Ireland. The first step towards accession was taken when I signed the convention on behalf of the Government in February last. This Bill represents the second step in that process.
Before turning to the detailed provisions of the Bill, I should by way of background, say something about the relationship between this convention, the earlier (1957) Council of Europe Convention on Extradition to which Ireland is a party, and our own extradition legislation. The Convention on Terrorism is not an extradition treaty. It is designed to complement and where necessary to modify, but not to replace, the 1957 Convention on Extradition. Part II of the Extradition Act, 1965, which gives effect to that convention, provides the basis for our extradition arrangements with most of the member states of the Council of Europe, and also governs our extradition arrangements with other countries, such as the United States, with which we have an extradition agreement. Part III of the 1965 Act provides for a different, more simplified, procedure — based on the backing of warrants — for the extradition of persons wanted in any of the neighbouring jurisdictions of Northern Ireland, England and Wales, Scotland, the Isle of Man or the Channel Islands. That procedure preserves, though in a form modified in important respects, the special arrangements which we had with Britain since the foundation of the State.
Both the 1957 Convention on Extradition and the Extradition Act, 1965, provide that extradition shall not be granted for an offence which is a political offence or an offence connected with a political offence. In the interest of brevity, I propose in the rest of this statement, to treat both those categories as being covered by the expression "political offence".
An exception for political offences has been a common feature of extradition treaties since the 19th century. There is no generally accepted definition of the term "political offence" and it appears to be generally accepted that it is a matter for the requested State to decide for itself what it means. Partly perhaps for that reason, but probably more fundamentally because of the difficulty of finding an adequate and generally acceptable definition, the Convention on Extradition did not seek to define the expression, though it excluded the taking of the life of a Head of State or a member of his family from its scope. Our 1965 Act followed the lead given by the convention. Similarly, the Genocide Act, 1973 — giving effect to the United Nations Convention on Genocide — simply provides that the crime of genocide shall not be considered to be a political offence for the purposes of extradition.
The European Convention on Terrorism is also designed to strengthen mutual assistance arrangements between member states of the Council of Europe by complementing the 1959 Convention on Mutual Assistance in Criminal Matters. That convention permits assistance to be refused where the requested State considers the offence concerning which assistance is sought to be an offence of a political nature. While this State is not a party to the 1959 Convention, provision exists in the Extradition Acts, 1870 and 1873 for the taking of evidence in the State for use in criminal proceedings abroad. Assistance of this kind is not available, however, where the proceedings in question are a criminal matter of a political character.
The period since the late sixties has been marked in many areas throughout the world by the emergence of new forms of terrorist violence and by the internationalisation of terrorist crime. Individual acts of terrorism perpetrated in one country often had their origins in conflicts elsewhere and were carried out by persons who had no connection with the country in which those atrocities were committed. The 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft and the 1971 Montreal Convention on the Suppression of Unlawful Acts Against the Safety of Civil Aviation were drawn up in response to the growth of offences involving commercial passenger aircraft. Two 1973 New York conventions, namely the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents and the Convention against the Taking of Hostages, were likewise drawn up in response to the growth of the kind of crime they deal with. Extradition was seen as a particularly effective measure for combating terrorism but it is a difficult matter on which to secure any major measure of agreement on a worldwide basis. The Council of Europe, therefore, sought to deal with the problem at European level on the basis that, among the member states, a higher level of agreement should be possible to attain. The underlying principle was that the perpetrators of acts of terrorism should not escape justice by leaving the jurisdiction in which the offence was committed and pleading that the offence for which their return was sought was a political offence. Moreover the objective was to secure, as far as practicable, that justice should be administered in the place where the crime was committed rather than in the place where the wanted person happened to be.
The result was the drawing up of the 1977 Convention on Terrorism. The convention provides the basis for a common approach between the member states of the Council of Europe to the question of what does — or, rather, what does not — constitute a "political offence" for the purposes of extradition and mutual assistance. Such a common approach among the member states of the Council of Europe was considered possible — and here I am drawing on the language of paragraph 12 of the Council's Explanatory Report — because of the climate of mutual confidence among these democratic States and their common commitment to the protection of human rights as evidenced by their subscribing to the European Convention on Human Rights. Structurally, the approach adopted is similar to that taken in the UN Convention on Genocide and the European Extradition Convention itself in the sense that it does not define but proceeds by way of exclusion. Contracting States are required not to regard as "political" certain specified types of offence which are particularly associated with terrorist violence. The convention also permits contracting states not to regard other specified offences as "political"— meaning, of course, offences in relation to which there was a claimed political content or motivation.
Up to recently, successive Governments here have taken the view that Ireland was precluded from ratifying the convention for constitutional reasons. Article 29.3 of the Constitution states that Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States. If non-extradition for political offences were a "generally recognized principle of international law" and if, in addition, the expression "rule of conduct" implied a binding obligation in every situation that might arise, this country would be prevented from allowing extradition for political offences. The Irish side on the Law Enforcement Commission, which was set up in pursuance of the Sunningdale Agreement and which reported in 1974, took the view that this was, in fact, the case. I do not think I should now involve myself in abstruse legal argument on such an issue. Whatever is to be said on the legal issue, I think it can definitely be said that there has been a policy in favour of non-extradition for political offences.
The Bill now proposed, however, does not — even in the context of the member states of the Council of Europe — propose to abandon the policy of non-extradition for political offences. What it proposes is to limit the meaning of "political offence". It is quite clear that a process to that same effect has already taken place in the courts. In a number of cases in recent years the Supreme Court decided that certain offences were not to be regarded as political notwithstanding that political motivation was claimed for them. I refer to the McGlinchey case in 1982, the Shannon case in 1984 and the Quinn case in 1985.
Some of the judgments given in these cases have been criticised from one standpoint or another but, especially during a period of development of the law, that is not only to be expected but to be welcomed. It is healthy. Again, it was to be expected in such a situation that there should be some differences of view among judges of the superior courts on some of the issues that arose. But, even where there were some differences, it seems to have been the general view of the judges that they did not think the interpretation of "political offence" should be regarded as something static but should, rather, take account of changing views and changing realities. I suggest that is a view which acords with commonsense and to which we can all subscribe.
There can be no serious doubt that court decisions in recent years reflect an attempt by the courts to respond to changing views and changing realities. It is, I believe, inescapable that the courts will have to continue to undertake, at least to some degree, the task of responding to change in this area, and this Bill allows for that to happen. But it is wrong, from several points of view, that the task of responding to changed circumstances should be left entirely or even mainly to the courts. Essentially the matters at issue are matters of policy in the area of our international relations. Consequently, it is both right and important that the Oireachtas should play its part by declaring, as this Bill provides an opportunity and a means for it to do, what is its policy. As I have said, the Bill does not remove the need for the courts to continue to respond to change but it does not provide a benchmark, a point of reference for the courts.
I now propose to outline the main provisions of the Bill and the considerations which influence the Government to implement the convention in the manner proposed. The key provision of the convention is Article 1. The corresponding provision in the Bill is section 3. Under Article 1, contracting States undertake not to consider certain specified offences as political offences for the purposes of requests for extradition from other contracting States. The offences in question include hijacking of aircraft, kidnapping and hostage-taking and offences involving the use of bombs and so on or automatic firearms if that use endangers persons.
Article 1 is mandatory in its terms but under Article 13 a reservation may be entered in respect of it. According to the Explanatory Report published by the Council of Europe to accompany the Convention, Article 13 recognises that a contracting State might be impeded for legal or constitutional reasons from fully accepting the obligations arising from Article 1. Although the Government do not propose that we should enter such a reservation, I think it is only right to make it clear that, in quoting from the Council document, I am not adducing it as an argument in support of the Government's position because there appears to be nothing in the convention itself to prevent the entering of a reservation for reasons other than legal or constitutional ones.
The effect of an Article 13 reservation would be to preserve, subject to a qualification, a State's right to refuse extradition for an offence which the requested contracting state considers to be political. The qualification is that the requested state is obliged, when evaluating the character of the offence, to take into due consideration any particularly serious aspects of the offence, including the fact that it created a collective danger to the life, physical integrity or liberty of persons, that it affected persons foreign to the motives behind it, or that cruel or vicious means were used in its commission.
A number of other Council of Europe countries have entered reservations under Article 13. Deputy Woods, in the House on Tuesday last and, according to a press report, in a public statement as well, has been somewhat critical of the fact that the Explanatory Memorandum accompanying the Bill did not include the list of reservations made by other European countries and allegedly that, as a result, the true character of the convention could not be clearly seen. I do not want to make too much of this but in fact the Deputy could have justifiably complained if the Explanatory Memorandum had contained the material he referred to since it has nothing to do with the content of the Bill.
It is a long-established practice that an Explanatory Memorandum accompanying a Bill should confine itself to being a neutral, factual, explanation of the purpose of the Bill and of the provisions that are in it. In this instance, such an explanation could not be given without some reference to the content and purpose of the convention on which it is based, and the memorandum dealt with the convention to that extent. But what other countries may or may not have done by way of implementation of the convention, however interesting it may be and however relevant to policy underlying the Bill, is far too remote from the content of the Bill to allow it to be appropriately included in the memorandum. I am not for a moment suggesting that that kind of information is irrelevant to the debate and I have arranged for it to be provided, separately, to the Library as requested here some days ago. I propose, nevertheless, to include a summary of the information in this statement for the information of Members who may not have checked with the Library.
Of the 17 countries which have ratified the convention, nine have entered reservations in accordance with Article 13 — Belgium, Cyprus, Denmark, Iceland, Italy, the Netherlands, Norway, Sweden and Switzerland. In addition, France, which has yet to ratify the convention, indicated its intention of making a reservation under Article 13 at the time of signature.
These reservations for the most part simply say, in one form of words or another, that the State concerned reserves the right to refuse extradition for an offence which it considers to be political, having taken into due consideration the matters specified in Article 13. For completeness, I might add that two other countries, Germany and Portugal, have entered other reservations — that is to say, reservations unrelated to Article 13, the German one being concerned with a situation in West Berlin. Six countries — Austria, Liechtenstein, Luxembourg, Spain, Turkey and the United Kingdom — have ratified the convention without entering a reservation.
The Government decided to frame the Bill on the basis that a reservation would not be entered under Article 13. The effect of section 3, therefore, is that none of the offences covered by Article 1 of the convention is to be regarded in any circumstances as a political offence for the purposes of a request for extradition from any country which is a party to the convention. I emphasise again a point I made earlier, namely that this provision would apply only in relation to other jurisdictions within the Council of Europe, unless the Dáil and Seanad at a later stage agree to its extension to some other specified country or countries.
The Government decided not to provide for a reservation because of their commitment to the promotion of co-operation to defeat the use of violence for political purposes, above all on our own island but also on the wider European level. The Government believe that this country should play its part fully in the extradition area in the international effort to combat terrorism. The primary objective of the convention is to remove barriers to extradition because extradition is the most effective way of combating this kind of crime. The effect of a reservation would be to leave open the possibility of extradition being refused in Article 1 cases on the basis that the offence was political. The Government consider that it is not desirable that this should happen. Realistically, the issue arises primarily in the context of violence in Northern Ireland. In that context especially, the Government believe that, in the aftermath of the signing of the Anglo-Irish Agreement, the proposals in the Bill represented the correct response and the one calculated to advance most effectively the objective of aiding the achievement of peace and stability in Northern Ireland. I propose to return to this point later in my statement.
The offences which section 3 excludes from the scope of the "political offence" exception are offences within the scope of the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft or the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation; serious offences involving an attack against the life, physical integrity or liberty of an internationally protected person; offences involving kidnapping, the taking of a hostage or serious false imprisonment; and offences involving the use of an explosive or an automatic firearm, if such use endangers persons. Attempts to commit those offences and participation as an accomplice are also covered.
In the specifying of offences to which the section applies, section 3 follows closely the language used in the convention, though there are some differences. First, terminology used in Irish law is substituted in a few places for that used in the convention where this was considered desirable in the interests of clarity. In addition, the Bill seeks to give greater precision to some expressions of a general nature that are used in the convention by defining them. A few examples will illustrate this. The expression "serious offence", which is used without definition in the convention and which appears in sections 3 and 4 of the Bill, is defined in section 1 as meaning an offence which, if it had been committed in the State, would carry a maximum penalty of at least five year's imprisonment. Similarly, it is specified in section 3 that the category comprising offences involving kidnapping, the taking of a hostage and so on is not limited to those particular offences but includes any offence committed in the course of or in conjunction with a kidnapping. This seems necessary as it would be wholly unsatisfactory were it to be possible for a person to be extradited for the offence of kidnapping but not for the offence of murder where the kidnap victim had been murdered by the kidnappers. Similarly again, an offence involving the use of an explosive or an automatic firearm is defined as including any offence, such as murder, committed by means of the explosive or firearm.
In addition to making the provision necessary to give effect to Article 1 of the convention, section 3, following Article 8 of the convention, provides that proceedings in respect of those offences are not to be regarded as a criminal matter of a political character for the purposes of the provisions of the Extradition Acts, 1870 and 1873 governing the taking of evidence in the State for use in criminal proceedings abroad.
Article 2 of the convention differs from Article 1 in that it is not mandatory but optional. It allows contracting States to decide not to regard certain additional offences as potitical offences for the purposes of extradition. These additional offences are serious offences, other than those covered by Article 1, involving an act of violence against the life, physical integrity or liberty of a person or involving an act against property if that act, that is to say, the act against property, created a collective danger for persons. Attempts to commit such offences and participation as an accomplice are also covered. Implicit in the Article, of course, is the assumption that one is speaking of offences where the question of political motivation might be advanced by the wanted person.
The Government have decided to take the option provided in Article 2 but with a qualification. As I have already said, our concern was to give as full effect as possible to the convention in the interests of international co-operation to combat terrorism in Europe. However, the Government were not satisfied that to exclude, from the political offence exception, the full range of offences coming within the scope of Article 2 would be warranted in all circumstances. Instead of excluding those offences completely from the ambit of the exception, therefore, the Bill employs an approach similar to that provided for in Article 13 of the convention and used much of the language of that Article. This does not, of course, create a requirement that a reservation be entered under Article 13 because Article 2 is, as I have said, optional and can be given effect to in whatever fashion and to whatever extent a contracting State decides.
Section 4 of the Bill gives effect to the Government's proposal in relation to Article 2. It provides that an Article 2 offence is not to be regarded as political where the court or the Minister, as appropriate, having given due consideration to any particularly serious aspects of the offence concerned, is of opinion that the offence cannot properly be regarded as political. It is provided that due consideration must be given to certain specified aspects of the offence, namely, that it created a collective danger to the life, physical integrity or liberty of persons, or affected persons foreign to the motives behind it, or that cruel or vicious means were used in its commission. This provision must, of course, be understood in the context of the provisions of the Extradition Act, 1965. It does not mean that the Minister for Justice will have the right to decide that a person is to be extradited. Even if the matter were to come before the Minister and he were to form the opinion that, having regard to the considerations set out in section 4, the offence cannot be regarded properly as political, the court might decide otherwise and, if so, the person could not be extradited.
Article 8 of the convention creates an obligation to provide assistance in relation to criminal proceedings instituted abroad in respect of an offence coming within the scope of Article 2. Section 4 makes the necessary provision in this regard.
Of course, extradition may be refused even for an Article 1 offence for a valid legal reason other than the "political" content of the offence or the motivation of the offender. Article 6 of the convention takes account of this and requires a contracting State to establish jurisdiction over Article 1 offences in circumstances when a suspected offender is present in its territory and it does not extradite him following a request for extradition from a contracting State whose jurisdiction is based on a rule of jurisdiction existing equally in the law of the requested State. Under Article 7 if a contracting State refuses extradition for an Article 1 offence, it is required to submit the case to its competent authorities for prosecution. Section 5 provides for the establishment of extra-territorial jurisdiction over the offences in question.
Subsection (1) makes it an offence for a person to do or attempt to do in a country which is a party to the convention any act which, if he had done it in the State, would have constituted an offence under Irish law and which falls within the description of certain of the offences mentioned in section 3. These do not include offences coming within the scope of the Hague and Montreal Conventions which are referred to in section 3. It is not necessary to establish extra-territorial jurisdiction over those latter offences because the Air Navigation and Transport Acts, 1973 and 1975, have already done so.
Subsection (2) of section 5 makes it an offence for a national of a convention country to do, outside the State and that convention country, an act constituting murder, manslaughter or any one of certain explosives offences, provided the act would have constituted an offence under the law of the convention country concerned and would have constituted one of the offences mentioned in the subsection if it had been done by an Irish citizen. This provision is necessary because the obligation under Article 6 to establish jurisdiction extends to any circumstances where a rule of jurisdiction exists equally in the law of the requesting and requested States.
As I have said, the obligation under Article 6 is confined to cases where a request for extradition has been received and refused. Section 5, however, does not and indeed could not make jurisdiction dependent on a request for extradition having been received or refused. To attempt to do so would mean that at the time when an act which ought to constitute an offence under the section was done, the necessary condition that a request for extradition had been made and refused could not be fulfilled.
However, to reflect the intention of the convention, certain restrictions are placed by section 6 of the Bill on the taking of proceedings in respect of section 5 offences. A prosecution will require the consent of the Director of Public Prosecutions and his consent may be given only when it appears to him that a request for extradition has been made by a convention country and has been refused or when, because of special circumstances, which may include the likelihood of extradition being refused, it is expedient that proceedings be taken.
In accordance with precedent in cases where there are restrictions on the bringing of proceedings, section 6 allows the exercise of the ordinary powers of arrest, charge and remand without the need for the prior consent of the DPP.
Another important provision in section 6 is subsection (5) which deals with the situation where something which is done abroad is an offence under our law by virtue of section 5 and is also an offence under our law by virtue of section 2 of the Criminal Law (Jurisdiction) Act, 1976, or section 39 of the Extradition Act, 1965. The effect of the subsection is that proceedings may be taken only under one enactment, as specified in the subsection.
Sections 7 and 8 of the Bill deal with a possible ground of refusal of extradition that is allowed for by Article 5 of the Convention on Terrorism. That article, which follows a similar provision in the European Convention on Extradition, permits the refusal of extradition if there are substantial grounds for believing that the request for extradition has been made for the purpose of prosecution or punishing a person on account of his race, religion, nationality or political opinion, or that his position may be prejudiced for any of those reasons. Provision to that effect is already contained in Part II of the Extradition Act, 1965, which deals with extradition requests from places other than Northern Ireland and Britain. The Bill will incorporate a similar provision in Part III of the 1965 Act, thereby applying it to requests from Northern Ireland or Britain.
The reason for the inclusion of this provision in the Convention on Terrorism is set out in the Explanatory Report of the Council of Europe. I quote from paragraph 48 of that report:
Article 5 is intended to emphasise the aim of the Convention which is to assist in the suppression of acts of terrorism where they constitute an attack on the fundamental rights to life and liberty of persons. The Convention is to be interpreted as a means of strengthening the protection of human rights. In conformity with this basic idea, Article 5 ensures that the Convention complies with the requirements of the protection of human rights and fundamental freedoms as they are enshrined in the European Convention [on Human Rights].
The report goes on, in paragraph 49, to say
One of the purposes of Article 5 is to safeguard the traditional right of asylum. Although in the member States of the Council of Europe... the prosecution or punishment of, or discrimination [against], a person on account of his race, religion, nationality or political opinion is unlikely to occur, it was deemed appropriate to insert this traditional clause also in this convention; it is already contained in Article 3.2 of the European Convention on Extradition."
Of course, if a request for extradition for an offence covered by Article 1 of the convention were to be refused on such a ground, whether by virtue of section 11 (2) of the 1965 Act or section 7 or 8 of this Bill, Article 7 of the convention would apply. This would mean that we would be bound to submit the case to our competent authorities for the purpose of prosecution. As I have already mentioned, section 5 of the Bill takes the extra-territorial jurisdiction over Article 1 offences that is necessary to enable that obligation to be met.
Section 9 of the Bill confers a power to apply the provisions of the Act to non-convention countries. The application of the earlier sections of the Bill is confined by their terms to countries which are parties to the convention, and the convention is open only to member states of the Council of Europe. Section 9 enables all or any of the provisions of the Act to be applied in relation to a non-convention country with which an extradition agreement is in force. The section, therefore, will leave open the possibility of a restriction on the scope of the political offence exception, similar to that provided for in the Bill, being negotiated with some other countries.
Extending the application of the legislation to a non-convention country would of course, be a significant step in which both Houses of the Oireachtas would have substantial interest, especially as such an extension could, in principle, raise issues not arising in relation to convention countries. The Government think it right, therefore, that there should be a requirement of Dáil and Seanad approval for such an extension. Accordingly, subsection (3) provides that it is only if a motion of approval is passed by both Houses of the Oireachtas that an order extending application of the Act to a non-convention country can be made. This provision ensures full parliamentary control.
I come now to a short but important provision in the Bill, namely section 10, which is entitled simply "Saving". This provision is intended to preserve existing case law on the scope of the political offence exception and to ensure that the enactment of the legislation will not "freeze" the normal development of the law in this regard. The section provides that nothing in the Bill will prevent a determination being made that an offence is not a political offence in circumstances or by reason of considerations other than those referred to in sections 3 or 4.
If the Bill did not contain a provision like section 10, there might be a possibility that the legislation might be regarded as being designed to make exhaustive provision for the delimitation of the political offence exception. The section is intended primarily to make it clear that it is not the intention of the Oireachtas that the courts should be precluded from continuing to take account of and reflect changes in the way in which terrorism is a threat to organised society. It will also ensure, of course, that nothing in the Bill can affect the power of the court to hold that an offence is not political simply because the claim that it was politically motivated is based on wholly unfounded assertions.
I come now to a very important provision of the Bill, namely section 12, which deals with commencement. The Act will come into operation on 1 June, 1987 unless before that date resolutions to the contrary are passed by both Houses of the Oireachtas. It will also be open to both Houses to pass resolutions that the Act should come into operation on a specified date earlier or later than 1 June, 1987. In that event the Minister for Justice will be required to make an order bringing the Act into operation on the date specified in the resolutions.
This is an unusual commencement provision and to put it in context I must go back to something that was said in the joint communique issued at the time the Anglo-Irish Agreement was signed. Paragraph 7 of the communique stated that the Conference would concentrate at its initial meetings on:
—relations between the security forces and the minority community in Northern Ireland;
—ways of enhancing security co-operation between the two Governments; and
—seeking measures which would give substantial expression to the aim of underlining the importance of public confidence in the administration of justice.
The communique went on to say that in the interests of all the people of Northern Ireland the two sides were committed to work for early progress in these matters and that, against this background, the Taoiseach said that it was the intention of the Government to accede as soon as possible to the convention.
So, ratification of the convention was set against the background of progress in relation to a number of matters under the agreement, that is public confidence in the administration of justice in Northern Ireland, relations between the security forces and the minority community in Northern Ireland and enhancing security co-operation between the two Governments. Progress on these fronts is a continuing process. There certainly has been progress in a number of respects in the past year. First, in January last legislation was passed in Westminster to allow a greater number of offences previously tried by a judge alone in Northern Ireland to go for trial by jury. Second, a new set of safeguards regarding the emergency powers of the police and the British Army is being introduced, including a test of reasonable grounds of suspicion for the exercise of powers of arrest. Third, increased rights for suspects in police custody in the North are now to be introduced. If, as may reasonably be expected, they are broadly on the same lines as the codes of practice that have already been introduced in Britain under the Police and Criminal Evidence Act 1984, they would be generally similar to the draft Regulations on the treatment of persons in custody in Garda stations which were approved by the Dáil and Seanad earlier this year. Fourth, measures have been taken to reduce delays between arrest and trial, which will mean that persons will spend less time in custody on remand. Fifth, the onus of proof in bail cases is to be shifted from the defence to the prosecution. Sixth, the conditions for the admissibility of confessions in scheduled cases are to be brought more into line with those obtaining in ordinary crime cases. Finally, certain court decisions, taken in conjunction with a statement of policy by the British Attorney General, appear to have greatly diminished the likelihood of cases being brought on so-called "supergrass" evidence without corroboration, especially against a large number of defendants.
Some of the changes I have referred to are still in the course of being brought into effect. The Government believe that further progress needs to be made and so do the British Government, though of course I am not saying that both Governments have agreed about what further changes might take place. The important point is that the two Governments are agreed that dialogue should continue on measures to improve confidence in the administration of justice in Northern Ireland. In this connection I would recall the speech by the British Secretary of State for Northern Ireland on 8 November in which he said that:
We must seek constantly to develop and improve the arrangements we make for the administration of justice in terrorist cases.
For our own part we look forward to the achievement of further progress in this area over the months ahead and this expectation has been further strengthened by his remarks of yesterday. What has been achieved or foreshadowed so far in these areas does not measure up to the level envisaged when the Hillsborough communique was issued but the Government are firmly of the view that we can now have a reasonable expectation of satisfactory progress over the next six months.
In these circumstances we think it is right that the Oireachtas should enact the Bill but that the Dáil and Seanad should have an opportunity to review the question of its commencement in the light of developments. The commencement clause has been drafted to enable the two Houses to defer a final decision and to look again at progress in the building up of public confidence in the administration of justice in Northern Ireland.
The leader of the Opposition, Deputy Haughey, was quoted recently as having said that one would have thought that the appropriate way of dealing with this matter would be to postpone legislation on extradition until the necessary progress had been fully achieved. As indeed might be expected, this was an option that was considered by the Government, but we are convinced that it is not one that would meet the needs of the situation adequately. It is right and important that there should be a public recognition of the fact that what is happening under the Anglo-Irish Agreement is a process and a continuing one. As I have said, certain changes in the administration of justice and in relations between the security forces and the minority community in Northern Ireland, as well as measures to enhance security co-operation between the two Governments are under way or in the offing; others are still being discussed. They represent progress. But I must remind the House this is not a one-sided agreement. We must be prepared to show the British Government and the Unionist community that we, on our side, are prepared to move, to show the Unionist community further evidence that the agreement is not a threat to them but rather something that offers substantial benefits to both sides and not just to the nationalist community. We believe, therefore, that it is right to show a substantial response now. The first step was taken with the declaration of intent to accede which was made at Hillsborough. The signature of the convention in February last was the second step. The introduction of this Bill is the third step. Passage of the Bill will be a further step and the final step will be its commencement and the ratification of the convention. The enactment of the legislation, even if it will not come into operation immediately, is a critical step in the whole process of implementation of the convention and is a very important earnest of our intent to proceed to ratification against the kind of background that was referred to in the Hillsborough communique.
I want to stress that it is not the Government's intention that any direct and necessary linkage should be established between the bringing into operation of this legislation and any individual reform in the administration of justice in Northern Ireland. What is envisaged is that up to 1 June next the Dáil and Seanad should have open to them the possibility of reviewing the introduction of the legislation in the light of progress made in relation to the administration of justice in Northern Ireland, relations between the security forces and the minority community in Northern Ireland and enhancing security co-operation between the two Governments. The commencement provision is a flexible instrument designed to meet that need and, as I believe the House will readily perceive, a particularly appropriate mechanism, given the stage now reached in the process of implementation of the objectives set out in paragraph 7 of the Hillsborough joint communique.
I now turn to another point. In the normal course of events I would concentrate on what is in the Bill rather than on what is not in it. On this occasion, however, I propose to refer to some matters not raised in the Bill because they have been the subject of a fair amount of public comment in the aftermath of some extradition cases in recent years and have again been the subject of comment in recent days in the context of this Bill. I refer first to the question of a prima facie requirement. In particular, some cases involving extradition to Britain or Northern Ireland were, rightly or wrongly, perceived to have “gone wrong” in one way or another, and this gave rise to suggestions that there should be a requirement that a prima facie case be made out in our courts before extradition could be granted.
There is no doubt that at least some of those suggestions were based on a belief that such a requirement is the international norm, and perhaps even a belief that Part II of the 1965 Act, which governs extradition to places other than Britain and Northern Ireland, contains such a requirement. That is not the case. Under our law, no prima facie requirement is applied to extradition requests from any country. There is a provision in Part II of the 1965 Act — specifically, section 22 — whereby any particular extradition agreement may require the production of evidence as to the commission of the offence by the wanted person but that provision is not applicable to countries which are parties to the European Convention on Extradition. In fact, such a requirement forms no part of our extradition arrangements with any country at present, but the point I want to stress now is that it is not possible to apply the provision to countries which are parties to the Convention on Extradition because such a requirement is not provided for in that convention. That is no accident. Such a requirement is not in accordance with European norms.
In adopting the convention in 1965, and thus adopting the continental approach on this matter, this country took the lead among common law countries which had traditionally favoured the prima facie requirement. In the meantime, there appears to be an emerging trend now among major common law countries away from the general application of the requirement. Within the past few years Australia has removed the requirement in its extradition arrangements with many countries. Within the past few weeks the British Government have published legislation which will enable them to dispense with the requirement in their extradition arrangements. Britain have never, of course, applied the requirement in their arrangements with this country. The British Government have signalled their intention to become a party to the European Convention on Extradition and that legislation is a necessary prior condition of its doing so.
To put the matter plainly, we could not now impose a prima facie requirement, even if we wanted to, unless we were prepared to withdraw from the 1957 convention and to abandon the arrangements for extradition between us and the countries of continental Europe. On the purely technical level, the position just at the moment is different vis-á-vis Northern Ireland and Britain, as the British Government have not yet adhered to the 1957 convention and we could, in theory, change our law so as to require a prima facie case in relation to those jurisdictions. But, apart from the fact that there would be strong objections to such a discriminatory change, most of all in the aftermath of the signing of the Anglo-Irish Agreement, the change could only be very short-lived because, as I have said, the British are preparing to subscribe to the 1957 convention and at that point we would no longer have the option of maintaining such a requirement — unless, as I have said also, we were to withdraw from the convention. To withdraw at this stage from a convention such as the European Convention on Extradition would be a grave and, I suggest, virtually an unthinkable step to take, but, even if that major issue did not exist, there would be a very strong case against a reversion to the older approach.
A requirement that a prima facie case be established would be a serious obstacle in the path of entirely proper and legitimate extradition requests from other countries. The British have had such a requirement, though not in relation to Ireland. A British White Paper published earlier this year, preceding their current legislation on extradition, acknowledged that Britain was widely regarded as one of the most difficult countries from which to secure extradition and that the principal obstacle was the requirement that the requesting state must establish in the British courts a prima facie case according to British rules of evidence. The British are now about to abandon that requirement and to bring their practice into line with the rest of Europe.
I am not suggesting that there have been no problems in our dealings with the United Kingdom in the context of extradition. There has, in fact, been a series of problems in recent years in cases involving the execution of warrants sent here from Britain or Northern Ireland. A tightening up of the administrative arrangements in those cases was shown to be needed and has been undertaken. It is now virtually completed. Both sides have pursued this matter in discussions within the Anglo-Irish Conference and we have worked together to identify adjustments to the existing arrangements which would reduce to an absolute minimum, if not wholly eliminate, the risk of a recurrence of the kinds of difficulties that have arisen. In saying this, I do not want to give any credence to impressions that any have been given by the publication of what, inevitably, was only a portion of the relevant facts in particular cases. It is only right to say, despite what may have been appearances to the contrary, that, in the opinion of legally experienced persons with access to all the facts, there was only one case — and that only an arguable one — in which a question might have arisen about the sufficiency of the evidence to justify a warrant being sent here. Nevertheless, a full review has taken place and it has been decided bilaterally that a warrant for the return of a fugitive will not be sought unless the Director of Public Prosecutions in Northern Ireland, or the Crown Prosecution Service in Britain, has considered the evidence and is satisfied that it is sufficient to ground a clear expectation of a prosecution. This means sufficient evidence of a kind that is admissible in court. We, for our part, have made a reciprocal decision that we will continue our existing practice of having our warrants assessed for evidence by the Office of the DPP before they are sent for execution in Northern Ireland or Britain. In effect, this means that a warrant will not be sent from Northern Ireland or Britain for execution in the State — or vice versa— unless the case has been examined at a high legal level to see if there is sufficient evidence on which to bring a charge. This accords with the principle that extradition is for the purpose of charging a person and not merely for questioning him.
In practice, despite what may have been appearances to the contrary, much the more important point in the discussions between the British authorities and ourselves was the risk of technical difficulties about warrants. On that point, work is also nearly completed on the drawing up of a memorandum giving guidance as to how warrants should be prepared which are to be sent to this jurisdiction for execution. The aim of that memorandum is to reduce the risk of warrants and any associated documentation being found by the Irish courts to be defective after they have been sent here. Again, we on our side will take any necessary corresponding action.
I am satisfied that the revised arrangements will provide major safeguards against procedures being abused, though I must stress that I am not suggesting, and would have no ground for suggesting, that there has in fact been any abuse.
I come now to my final point. For some time now we have heard suggestions that the law should distinguish between the extradition of Irish citizens and the extradition of others. Our law has never done that. Let us not be under any illusion about what is involved here. In practical terms, the issues we are dealing with are virtually entirely related to extradition to Northern Ireland or — to a much lesser extent — to Britain and, even in relation to the latter, the cases involved are almost all likely to be related to the problems in Northern Ireland and involve Irish people. Our citizenship laws are very wide by international standards. Apart from the fact that nearly everybody in Northern Ireland is an Irish citizen, numerous thousands of people in Britain who are of Irish descent are also Irish citizens. To exclude Irish citizens from extradition arrangements is, in our situation, tantamount to saying that we will not extradite at all. We cannot in all conscience say that to those in Northern Ireland, whatever their creed, who have been at the receiving end of paramilitary violence.
I commend the Bill to the House.