Extradition (European Convention on the Suppression of Terrorism) Bill, 1986: Second Stage.

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.

This is a very important Bill. Before commencing my contribution I ask the Minister and the House to join with me in congratulating those members of the Garda Síochána who are receiving their Scott medals for bravery today. We all too infrequently recognise in the House the very high standards of the Garda Síochána and their bravery and commitment to the people.

Hear, hear. I agree with the Deputy entirely.

I have listened with care to the Minister's speech. Extradition is an extremely sensitive issue affecting the basic human and civil rights of every citizen. It involves the surrendering by the State of persons, very often its own citizens, to another country for trial and punishment. Therefore, this Bill must be carefully examined in a mature and responsible manner. We in Fianna Fáil fully support and will co-operate with our partners in the Council of Europe in their efforts to combat international terrorism. As a country we have always been unequivocal in our support for measures to deal with those involved in international crime and terrorism within the established principles of international law. In co-operation with most of our European partners, Ireland supported the European Convention on Extradition, 1957. Britain has not as yet found it possible to sign this important convention which sought to harmonise the procedures for dealing with the extradition of all criminals excluding those involved in political offences because it insists on a prima facie case being proven before getting extradition. As the Minister said, that matter is at present being considered in Britain but it is being considered for quite some time and is regarded as a very contentious matter there.

Along with our European partners we recognise there is a heavy onus on us to ensure that any new arrangements we make will comply with constitutional and international standards and thereby have the full confidence of our citizens. We must also ensure, as do our European partners, that adequate safeguards are included in any extradition legislation. In this spirit of international co-operation we support the principle of this Bill and will support its Second Reading, but we unreservedly condemn the Government for their carelessness or for their calculated omission in not including any safeguards for Irish citizens in this European convention. Accordingly, we will put down important amendments on Committee Stage.

It is most extraordinary that the Government in this Bill do not envisage that a reservation be made and the Minister has confirmed that again here today. We will press for the inclusion of safeguards as reservations in the convention and we will be pressing for the requirement that a prima facie case be shown in extradition proceedings where appropriate. The Minister suggested that this will depend on other developments. That is a matter that can be considered if other developments take place but in common with other European signatories, we must also reserve the right to refuse to hand over Irish nationals unless we are satisfied that accepted standards of justice will apply while the accused persons are in custody.

We also note that many of our European partners, while signing and ratifying the convention and agreeing to take its provisions into consideration, have formally reserved to themselves the ultimate decision as to what is a political offence, whether it be for their own citizens or for political refugees. We are amazed that in section 4 the Minister is taking to himself the extraordinary and highly arbitrary power to decide which offences are political and which are not. We will seek amendments to the principal Act providing for more guidelines as to what offences can constitute political offences. We expect much debate on all these aspects of the Bill on Committee Stage. The issue raised by this Bill must be fully and honestly considered and discussed by us in Dáil Éireann. There must be no ambiguity, obscurity or shortcuts in debating what is, in the last analysis, most important legislation affecting the fundamental rights and liberties of our citizens as well as the established principles of international law and co-operation.

We fully support the principle of bringing requested persons to trial either here or abroad, but in accordance with the principles of constitutional justice and the generally accepted principles of international law and co-operation among our European partners. The purpose of this Bill is to give effect to the European Convention on the Suppression of Terrorism drawn up by the Council of Europe and opened for signature in 1977. The reason for the convention is to assist in the suppression of terrorism by complementing and, where necessary, modifying existing extradition and mutual assistance arrangements concluded between member states of the Council of Europe.

Successive Irish Governments, concerned at the constitutional implications, have refused to sign the European Convention on the Suppression of Terrorism. They have also held that international agreements relating to extradition for political offences or for offences connected with political offences should be based on the well-recognised principle of aut dedere aut judicare, that is, the requested Government should have the option of extradition or of bringing the accused to trial within its own jurisdiction. The law of the State does not in accordance with the generally accepted principles of international law permit the extradition of citizens for an offence which is inter alia a revenue offence, a military offence, a political offence or an offence connected with a political offence. This law has been observed by successive Governments.

The special arrangements that exist between Britain and Ireland under the Criminal Law Jurisdiction Act, 1976, are based on those principles. They are very far in advance of any comparable arrangements between other States in Europe. The Irish Government participated in negotiations for the Convention of Terrorism because we were anxious that similar arrangements based on the "try or hand over" principle should be introduced into our relations with other member states of the Council of Europe. Ireland did not previously consider that it could sign the 1977 Convention on the Suppression of Terrorism because of constitutional difficulties. In that respect the Minister has alluded to that problem and mentioned the law enforcement commission which was appointed jointly by the Irish and British Governments in December 1983 and which was unable to make an agreed recommendation about extradition and was equally divided on the question. At that time, the Irish members could not recommend a change in the extradition law to enable extradition to be allowed for political offences. They based their opinion on four considerations, public international law, the interaction of public international and Irish law, the European Convention on Extradition and the practical difficulties that would follow such change. The four British members took the view that international law recognises the right, without imposing the duty, to refuse extradition of fugitive political offenders. They also made the point that whatever the true extent of the principle or practice of international law, there can be exceptions where the enormity of the barbarism of the crime justifies them.

British members of the Commission held the view that the terrorists operating in Northern Ireland, whatever their motivation, fall within such an exception. The Commission went on to deal with the various articles, in particular the two to which the Minister referred. Article 1 of the convention provides for various offences, including kidnapping, unlawful detention, taking of hostages, use of bombs and rockets and automatic firearms, explosives and attempts to commit or participate in the foregoing offences. They said the non-signature by Ireland to the European Convention on the Suppression of Terrorism — apparently Malta did not sign it either — gave rise to much criticism. The thinking was that Article 29.3º of the Constitution prevented accession to the convention which would oblige the State to deviate from the generally accepted principles of international law relating to non-extradition for political offences.

I asked the Minister earlier to highlight the fact that other countries who are signatories have expressed substantial reservations. It was considered that if Ireland signed the convention, subject to the kinds of qualifications which have been made by other countries, it would not be contributing in any way to the suppression of violence in Northern Ireland.

In December 1979 the EC member states, including Ireland, signed an agreement in Dublin concerning the application by the EC member states of the European Convention on the Suppression of Terrorism. The EC agreement provides for the prosecution of certain terrorist offences in cases where extradition is refused on the grounds that the offence is political. It is based on the principle of "try or extradite". The efforts made at that time by Irish representatives were continued by successive Governments and Taoisigh. They tried to develop the principle of "try or extradite" which would certainly seem to conform with our constitutional requirements. It went to the stage of getting that kind of agreement with other member states.

At that time the Irish view was that the enactment of legislation to permit extradition for such offences would represent a departure from the basic principles and would be repugnant to our Constitution. It was seen that an amendment to the Constitution was required and the Irish concluded, in the circumstances and taking all aspects of the matter into consideration, that the balance of advantage in terms of promoting peace, reconciliation and stability and improving relations between the people of the two countries was against the promotion of any such constitutional amendment. That view was held in 1973 by the Law Enforcement Commission and by the Government in relation to those developments.

We must recognise that the Criminal Law (Jurisdiction) Act, 1976, is based on these principles and that there have been quite a number of prosecutions up to 1982. The Act was effective and anyone whose prosecution was sought under it was pursued. Of course, the Act requires the presentation of evidence against an individual and there must be sufficient evidence to form a prosecution. If there is, the Act currently provides a mechanism whereby such persons can be prosecuted. The first prosecution in the State under the extraterritorial provisions of the Act occurred on 7 July 1980 when Messrs. Lynagh, McGurk and McNally were charged with the murder of UDR man, Henry Livingstone, at his farm at Tynan, County Armagh, on 6 March 1980. However, in that case the Special Criminal Court ordered the three to be released, holding that the prosecution had not established even a prima facie case against them. On 5 February 1981, Mr. Séamus Sorahan of Monaghan was charged under the Act with the murder of a former UDR man, Ross Hearst, in County Armagh in the preceding year. However, on 21 July 1981 the Special Criminal Court held that it had no jurisdiction to proceed with the murder trial because the accused man had not been offered the option of a trial in Northern Ireland in accordance with the Act.

In June 1981 a further two men were sentenced to concurrent sentences of five years for escaping from custody while awaiting trial for murder. In February 1982, four persons were convicted by the Special Criminal Court under the Criminal Law (Jurisdiction) Act of escaping from Crumlin Road jail in June 1981. All four were sentenced to ten years on a charge of shooting at an RUC detective during their escape. The court also sentenced the defendants to eight years on each of three further charges involving the use of firearms during the escape. It also imposed a sentence of five years on a charge of escaping from custody while awaiting trial. Two murder prosecutions have been instituted under the parallel British Criminal Jurisdiction Act, 1975.

In March, 1982 Gerard Anthony Tuite was arrested in Drogheda and charged and convicted under section 4 of the Criminal Law (Jurisdiction) Act. He was sentenced to ten years imprisonment. I mention these cases to illustrate the fact that this process has functioned up to recently. The legislation is there and it would be wrong to give the impression that there is not a means of dealing with a person against whom there is evidence. That legislation has been cited on many occasions.

As a full member of the Council of Europe, we are anxious to play our part in contributing to combined approaches in tackling international terrorism. Ireland participated in the European Convention on Extradition in 1967. The 1977 Convention on Terrorism did not receive the unqualified support of member states. Ireland was not the only country which found constitutional and other difficulties in regard to it. Many other countries found that in order to sign the convention they had to attach substantial reservations which radically changed the character of the convention. France at the time of signing declared that on ratification it would make the reservation that any moves to ensure efficiency in the struggle against international terrorism must be in conformity with the basic principles of French law and constitution which states in its preamble that anyone persecuted on account of his actions for the cause of liberty has the right of asylum in the territory of the Republic.

Belgium, Cyprus, Denmark, Iceland, Italy, The Netherlands, Norway, Portugal, Federal Republic of Germany, Sweden and Switzerland, which are contracting states, have also made reservations under Article 13 of the convention in respect of political offences. These countries reserve to themselves the final determination of the character of such offences. For example, the Belgian Government on ratifying the convention on 31 October 1985 made the following reservation under Article 13 which is typical of the reservations they entered:

With the exception of offences committed upon the taking of hostages and other connected offences, Belgium reserves the right to refuse extradition in respect of any offences, mentioned in Article 1, which it considers to be a political offence connected with a political offence or an offence inspired by political motives. In these cases, Belgium undertakes to take into due consideration, when evaluating the character of the offence, its particularly serious aspects including:—

(a) that it created a collective danger to the life, physical integrity or liberty of persons; or

(b) that it affected persons foreign to the motives behind it; or

(c) that cruel or vicious means have been used in the commission of the offence.

Belgium made these reservations and decided that they would take into consideration these aspects of any offence but they reserved to themselves the final decision with regard to what is or is not a political offence.

Furthermore, the Federal Republic of Germany, Greece, Cyprus, Switzerland, Belgium and France do not extradite their own nationals. The Convention on Terrorism does not other than on the issue of the political offence affect any of the provisions of the earlier Convention on Extradition of 1957. This means that if we want to see the true character of the new Convention on Terrorism we must also look at and include reservations made by other states with regard to the basic Convention on Terrorism. The Minister mentioned reservations which are in the Convention of Terrorism but he did not mention the other reservations which are there already and which apply to the Convention on Extradition. If we want to see the true character we have to look at the two sets of reservations together because it is only then that we will see how extensive the reservations actually are in practice.

A brief overview of these reservations will illustrate further how other states in the Council of Europe exercise an intelligent and responsible approach to the safeguarding and protecting of their own nationals. Under the Convention on Extradition Austria refuses to extradite its own nationals and will refuse extradition if any person claimed is to be brought before a special court or if that extradition should lead to the execution of a sentence or a detention order by such court. It will also refuse extradition in order to carry out the death penalty.

Cyprus refuses to extradite its own citizens. Denmark and Norway will not extradite any person if that person is to be prosecuted or proceeded before a special court. They will not extradite any person if the extradition is liable to have particularly serious consequences for the person claimed and they will not extradite persons who may be tried or convicted by a military court. In special circumstances they may insist that a requesting country produce evidence establishing a sufficient presumption of guilt.

Italy will not grant extradition in respect of an offence punishable by death and it will not grant extradition for the purposes of carrying out a detention order unless the detention order is as a result of a sentence passed by a court of law. The Netherlands reserves the right to refuse extradition if the extraditee is liable to the exaction of a penalty without guarantees of fundamental fairness in the hearing of any case under the provisions of Article 6.3 of the European Convention on Human Rights. Therefore, the Netherlands insist on fairness in the state to which the person would be extradited. That is the question of a fair and just legal system. The Netherlands will also not extradite its own nationals.

Sweden reserves the right to refuse extradition unless satisfied that the person extradited will not be tried before a special or exceptional court. It also reserves the right to refuse extradition if such extradition would endanger the extraditee on the grounds of his age, health or other special circumstances. It also reserves the right in the light of individual circumstances to regard an offence as being political. I understand that this reservation continues notwithstanding the provisions of the Convention on Terrorism. It also reserves the right to annul any extradition order made if the person to be extradited is not handed over or taken over by the State requesting on the date appointed. Of course, they are trying to avoid some of the long delays which can take place and which we have seen in one particular case in this country.

Switzerland refuses to extradite any person who is to be brought before a special or extraordinary court or for the purposes of carrying out a sentence passed by an extraordinary court. It will not extradite its own nationals but will in certain circumstances put those nationals on trial. Israel will not grant extradition of any person charged with an offence unless it is proved in the court of Israel that there is sufficient evidence that would enable that person to be sent forward for trial for such an offence in Israel. Finland will refuse to grant extradition unless it is satisfied that the person will not be tried before a special or extraordinary court.

Surprisingly, the present Bill does not envisage any reservations being made by Ireland with regard to our citizens or Constitution while we are proposing to adopt and ratify the new convention. The Minister in his contribution attempted to justify some aspects. On the question of nationals he said that nationals would include Northern Ireland. Of course, they are nationals but it highlights the problem which exists if we are going to be concerned about our nationals.

Why is it that all these great countries have such great concern about their nationals while the Minister sweeps aside the question about nationals in this country. Under the Extradition Treaty of 1957 and the Terrorism Treaty of 1977 the Federal Republic of Germany, Belgium, Austria, France, Switzerland, The Netherlands, Greece and Cyprus refuse to extradite their own nationals. Belgium, France, Portugal, Italy, the Federal Republic of Germany, Cyprus, the Netherlands, Norway, Iceland, Sweden and Switzerland reserve the decision to themselves. A prima facie case applies in Britain, Denmark, Norway, Israel and in our relations with the US. Fairness is emphasised particularly by The Netherlands and the existence of a special court is highlighted by Austria, Denmark Norway Sweden, Switzerland and Finland. “Consistent with their constitution” is particularly emphasised by France. All our partners in Europe have entered very serious reservations which will have a very limiting effect on the application of this legislation and the convention. That is why I say it is so surprising that the Government in proposing to make this major change do not envisage any reservations being made by Ireland. That is extraordinary.

We are concerned about the constitutionality under Article 29 of extraditing for political offences and we will be seeking the Minister's assurances in this regard. For a country which does not require the presentation of a prima facie case for extradition, the Government propose to leave Irish nationals exposed to the danger of being extradited to another jurisdiction for interrogation and charging. This approach of the Government contrasts starkly with the approach of the British Government which insist on a prima facie case being established in the courts before a British national can be extradited, no matter how horrific the alleged crime or terrorist activity.

The Government's approach in this Bill would give unequal treatment to Irish nationals. They would become the most easily extradited citizens in Europe. Unless the Bill is amended, it will be easier to bring an Irish national before the English or German courts even for a political offence than it is to bring a person before our courts. There should be equal treatment and similar safeguards in both instances so that all persons who stand accused are treated equally, whether they are charged here or, for example, in Britain. It is important to note that under this Bill if Annie Maguire was living here or seeking asylum here, the British authorities could extradite her without producing any evidence to sustain their charges. This is a sobering thought.

There is a common factor running through all the extradition treaties which the UK have entered into with other countries and that is that no person, either a citizen or a refugee found in the United Kingdom, shall be extradited unless a prima facie case is established before a competent magistrate. The general wording used sets out the requirement for a prima facie case and it is as follows:

When the fugitive shall have been apprehended he shall be brought before a competent Magistrate and if the evidence to be then produced shall be such as to justify, according to the law of England, the commital for trial of the prisoner, if the crime of which he is accused had been committed in England, the Magistrate shall commit him to prison to await the warrant of the Secretary of State for his surrender sending immediately to the Secretary of State a Certificate of the commital and report upon the case.

That is how the British Government protect their citizens. The Minister said they may change that in the future. They may and they may not.

They have published legislation to do so.

The Minister said that in the last few weeks they have published legislation through which they hope to do so. The requirement for prima facie evidence has been built into over 40 treaties which the UK have entered into. These countries include Belgium, Finland, France, the Federal Republic of Germany, Greece, Iceland, Israel, Italy, The Netherlands, Norway, Portugal, Sweden, Switzerland, the USA, Argentina, Austria, Bolivia, Chile, Cuba, Czechoslovakia, Colombia, Equador, Guatemala, Hungary, Liberia, Luxembourg, Mexico, Nicaragua, Panama, Poland, Rumania, El Salvador, Thailand, Uruquay and Yugoslavia.

There are some impressive names on that list all right.

It is very interesting to see that the professor from the university has taken time off to come in for this debate.

The Deputy did not mention the most significant omission going back to the 1965 Act.

The UK is not a signatory to the European Convention on Extradition. Stay cool, Minister, and I will cover it.

I am quite cool, thank you.

The UK is not a signatory to the European Convention on Extradition. The requirement that a prima facie case be adduced before an English court is a consistent requirement running through every extradition treaty the United Kingdom have entered into. The the test imposed by the British on requesting States with which they have extradition arrangements is stronger and more difficult to meet than the test laid down in the convention. This is reflected in the Recent Command Document on Extradition, February 1985, which states:

The United Kingdom is widely regarded as one of the most difficult countries from which to secure extradition. There is a notable failure of applications made to the United Kingdom for Extradition.

While Ireland is a signatory to the convention, it would be very difficult for the State to introduce a prima facie requirement with fellow convention states. However, as Ireland's extradition arrangements with Britain are based not upon the convention but on a reciprocal backing of warrants legislation, there is no fundamental legal or constitutional bar to Ireland amending its legislation to provide that the UK authorities adduce a prima facie case in an Irish court in requesting any extradition, whether for a politically motivated offence or otherwise. Ireland may be required by Britain to meet such a prima facie test but we should have no fears in that regard.

Turning to the prima facie rule and the right to a preliminary examination, this rule is to the effect that a requested country will not extradite a fugitive unless and until the requesting country has produced sufficient evidence to establish a prima facie case against that fugitive. The Extradition Act, 1965, had the effect of removing the prima facie rule completely. Whether it was intended to have that dramatic effect is open to question. As regards extradition between this State and places other than Northern Ireland, England, Wales, Scotland, the Isle of Man and the Channel Islands, the requesting country no longer has to produce sufficient evidence to establish a prima facie case against a fugitive. Instead it has to furnish a statement of each offence for which extradition is requested. Section 25 (b) requires that this statement specifies as accurately as possible the time and place of commission, that is the legal description of the offence, and the reference to the relevant laws of the requesting country. The Irish courts have interpreted that section very literally. A typical statement of offence will contain nothing more than a bald assertion of what it is alleged the fugitive has done: for example “assaulted 'X' on the first day of January 1986 in Brussels, Belgium, contrary to the relevant Belgian law”. Strictly speaking, such a formula complies with the Act. The offence, assault, the time of commission, the date, the place of commission, Brussels, and the relevant foreign law are all specified. The effect, however, has not merely been to abolish the technical difficulties once associated with the prima facie rule but to reduce the information available to the Irish courts as to what the fugitive is alleged to have done to a mere recital of the type of offence contained in the charge sheet or warrant.

In Irish domestic law, persons charged with serious offences are returned for trial only when a prima facie case is made out. The prima facie case is made out in the book of evidence which contains statements of the evidence of witnesses against the accused so as to enable the courts to decide whether there is a case to answer and the accused to know the case he has to meet. Thereafter an indictment, containing a statement of the offence and bare particulars of the offence is prepared. But an accused does not look to the statement of offence or to the particulars of offence contained in the indictment to ascertain the allegations made against him; for that he looks to the book of evidence.

The result has been most unsatisfactory as Part II of the Act has been virtually reduced to a backing of warrants type scheme in that a fugitive sought under it is furnished with no more information that he would be able to derive from the warrant which is produced for the purposes of Part III of the Act.

Part III of the Act has to be appraised in terms of the background against which it was enacted. It provided for the easiest form of extradition possible between this State, Britain and Northern Ireland. The safeguards are minimal and this fact should not be disguised by a few spectacular refusals to extradite, which entirely resulted from incompetence and ineptitude on the part of the British authorities. But in 1965, the present troubles were not anticipated. Relations between North and South and between this country and Britain never seemed better, and the Extradition Act of that year was enacted against the background of the O'Neill-Lemass dialogue and the Anglo-Irish Free Trade Talks.

The Diplock courts were not conceived of an Castlereagh-style interrogation centres or "shoot to kill" policies could not have been imagined. Indeed, in the Dáil debates of the time, the then Minister, justifying the removal of the prima facie rule stated that as it rested upon “the suspicion of inadequacy of proceedings under other systems of law” and as no such suspicions then existed, the rule was unnecessary. Can it be said today that such suspicions do not exist? It is, in fact, Government policy to seek changes in the Northern Ireland judicial system precisely because of such suspicions. In the McGlinchey case, it became clear that not only was there virtually no evidence against him at the time of his trial in Northern Ireland, but what little did exist was obtained after and as a result of his extradition, that is the affidavits he had sworn in this jurisdiction for the purpose of court hearings here.

There are now very convincing arguments which show that it was never intended to abolish the safeguards which the prima facie rule provided. In practical terms, this could be achieved by amendments to sections 25 and 47 of the 1965 Act, regarding that in addition to the documents now required before an extradition order can be made there must also be before the court a sufficient statement of the facts alleged against the fugitive as would, if contained in documents served on an accused pursuant to the provisions of section 6 (1) of the Criminal Procedure Act, 1967 and pertaining to an offence committed within the State, justify his being sent forward for trial pursuant to section 8 (1) or (2) of that Act.

The effect of such amendments would be that all requests for extradition from this State would have to be supported by a statement of evidence to enable the courts to see that a prima facie case existed against the fugitive at the time the request was made. There would be no additional obligation imposed on any requesting country other than that it inform the fugitive, the Minister and the court with evidence supporting the charges against the fugitive. No bona fide requests for extradition would be prejudiced, as presumably any bona fide requesting country would be in possession of such facts before a warrant for any alleged offender's arrest would be issued and before any request for his extradition would be made. There should not even be any delay caused by such an additional requirement.

The change would also enable the State to monitor the operation of its extradition arrangements with other states; for example, if another state consistently failed at trials following on extradition to produce evidence substantiating allegations of fact made in support of those requests for extradition, it would be open to serious doubt whether an extradition arrangement should exist with that other state.

Such a safeguard is even more necessary in view of the increased scope for extradition proposed in the Bill before this House. One of the main safeguards in the 1965 Act against the extradition of persons who might not, if extradited, receive a fair trial was the exclusion from the scope of the extradition process of persons wanted for political offences, or offences connected with political offences.

In 1982, the Supreme Court in a judgment delivered by the then Chief Justice, Tom O'Higgins, in the McGlinchey case, overturned what had been the traditional approach of our courts to the whole concept of a political offence. Chief Justice O'Higgins effectively abolished the whole concept of a politically-motivated offence, or an offence of a political character. He held in a judgement which was obiter dicta that the offence McGlinchey was charged with was not political because it did not constitute “what reasonable civilised people regard as political activity.” It follows that the McGlinchey judgment might include all offences per se. Therefore any offence ceases by definition to be political activity and becomes what some would call terrorist activity.

In the Shannon case, the Chief Justice went further and held that the Oireachtas had left it to the courts to decide "on the particular facts and circumstances of each case viewed in the light of the standards and values obtaining in the country at the particular time" what was a political offence. The Supreme Court in deciding what these values are is at serious risk of entering the arena of politics and making decisions of policy, which is properly a province of the Oireachtas. Indeed, the Minister has referred to this point. It is a political distinction formed on subjective views of a political situation and is not an uncontentious legal definition, which is what we require.

The distinction between political activity and terrorist actions was not only new to this country but to almost all countries which subscribed to the convention of 1957. Indeed, it was precisely because the courts of virtually all states had the political offence exception to violent activity if politically motivated that the convention of 1977 was considered desirable. The function of legislating is reserved under the Constitution to the Oireachtas and not the courts.

But notwithstanding that fact, and the fact that this country has until now refused to ratify the 1977 convention and notwithstanding the fact that the refusal was a widely known part of our public policy, the decisions of the Supreme Court have in many ways gone further than was ever proposed in the convention. For example, the convention by excluding attacks with automatic firearms from the scope of the political offence, by implication do not exclude attacks with ordinary firearms. But as the use of firearms of any type would hardly be viewed as "reasonable politically activity" by our Supreme Court, the question of what is a political offence will remain unanswered regardless of whether this Bill is enacted.

The need for some clear guidelines as to what does constitute a political offence becomes additionally important in view of the wide ranging powers which would be vested in the Minister under section 4 of the Bill. We will know what is not a political offence, but huge doubts will remain as to what is. Will the enactment of this Bill mean that only offences specified in it are not to be regarded as capable of being political offences? This Bill, far from answering these questions, or resolving the problem, will only serve to compound the confusion and uncertainty which already exists as a result of the decisions of the Supreme Court in the McGlinchey and Shannon cases.

The Government should consider whether in place of the existing and unsatisfactory negative test, an exception to the political offence rule would be where the crime could be considered to be wanton or indiscriminate. We have already participated in conventions which recognise that aircraft hijacking is a segregated offence, and the Minister referred to that. Presumably the intention here is to go further into other kinds of offences which are of a wanton or indiscriminate nature. The inquiry as to the nature of the offence and whether it is political should turn solely on the motives of the suspected person, or the purposes of his organisation, but I believe should perhaps focus on whether the means used by the suspected person to achieve his organisation's political ends were direct and not wanton or indiscriminate.

In consideration of an Extradition Act before the United States Congress, the House Judiciary Committee in 1983 in the proposed Extradition Bill provided that the protection of the political crimes defence should not apply to "an offence that consists of international direct participation in a wanton or indiscriminate act of violence with extreme indifference to the risk of causing death or serious bodily injury to persons not taking part in armed hostilities". Have the Government even considered such an approach?

The Minister referred to a section which he regarded as a saver and which covers race, religion, nationality and political opinion. He said:

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 where there are substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting 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.

The Minister suggested that this was a safeguard in the convention and in this Bill but that is seen to be of little real effect, because that view has been put before the courts here in particular cases and did not stand up when it was applied to extradition to Northern Ireland. On the surface it appears that this section covers the concern felt by many about the danger of prejudice in a particular administration or courts. Members might feel that if there is evidence of prejudice, the provision would be a saver and that we could feel happy about that. This is a point we can discuss further on Committee Stage. To my knowledge that point has been put in court but it has not stood up in cases relating to Northern Ireland, the Diplock courts, the supergrass trials and so on. I do not doubt that the Minister believed this would cover such cases. I wanted to make those comments because the Minister made much of this in his speech.

Once we begin to change the protections which exist for our citizens the question we must ask ourselves is, what doors are we opening in relation to what is a political offence? Some of the terms used in this Bill are very open and loose. They are all-embracing and could be extended. I could see difficulties in some of this terminology. This is why other members of the Council of Europe have entered their own reservations. Then I look to the United States to see how they tackled this problem. They looked at a further category of offence which might cover the area the Minister is trying to cover, and which I am sure would have the support of this House given the fact that we have the means of dealing with any of these problems under the Criminal Law Jurisdiction Acts and other arrangements.

Furthermore, Irish courts should be permitted to reject the presumption that States with whom we have an extradition arrangement can necessarily be trusted to do justice. In the United States this presumption is known as the "rule of non-enquiry". This self-imposed blindness was evident not only in the McGlinchey case, but also in the approach of the Supreme Court in the Shannon case and the basis of extradition between Ireland and the United Kingdom was reinvoked to be based upon trust. It is simply not politically credible to continue to base extradition arrangements on the premise that we can simply trust foreign courts. The objective of this Bill appears to be the defining of a political offence by exclusion of certain defined offences. On the one hand, it is desirable that the legislature should define a term the meaning of which has caused such controversy in the courts. It is unfortunate that the Government have decided to do so by reference to what are not to be regarded as political offences rather than by defining what is to be so regarded. In this respect, by following the convention the Government have avoided the basic question posed by the McGlinchey decision which is whether acts of violence constituting offences under the laws of another State should ever be regarded as constituting political offences.

There is a duty on this House to remove the uncertainty which surrounds this area. Surely it is not beyond the capacity of the Government to put before this House a definition of what a political offence is as opposed to this hotch-potch of exemptions and exclusions. Without such definition, it will be impossible for this Government or their successor to exercise the right and duty granted by the convention to make reservations designed to ensure the protection of our citizens or other persons within this jurisdiction. I accept that the concept of the political offence is not immutable, but it should not be tampered with on an ad hoc basis or left to the changing disposition of the Judiciary of the day.

Change may be required but it should only be effected in tandem with further changes designed to protect the individual. We must ensure that no person will be extradited from the protection of our courts unless it is established that there is a genuine case for them to answer, unless we are satisfied they will get a fair trial and unless we have as much confidence in the judicial process and legal system of the other country as we have in the Irish courts.

Fianna Fáil are opposed to international terrorism and violence. We are committed to the peaceful resolution of the problems that exist on this island. We are equally committed however to the principle that the law must protect as well as punish. We cannot and will not support an extradition process which would have the effect of turning extradition into a rubber stamp procedure for handing over anybody who is wanted anywhere for anything. The safeguards which were associated with the old prima facie rule must be restored. The expression “political offence” must be defined in terms of what it can be rather than what it cannot be. The function of deciding matters of fact as well as of law must be reserved for the courts and not, as is proposed in this Bill, shared with the Minister. Above all, extradition facilities should only be granted to jurisdictions in whose legal and judicial systems we have full confidence.

The fundamental consideration with regard to extradition is that once the formalities of the extradition procedure have been completed the judicial process will take place in a foreign country under a foreign judicial system. In this country a citizen can look to the Constitution and to the law to safeguard against abuses and miscarriage of justice in an environment with which he or she is familiar. Therefore, when providing a legal process by which a citizen of this country is sent for trial in a country over whose legal system we have no control we must ensure that there are effective safeguards to reduce the risk of the extradition process being abused. Of course we know the real dangers here; we have seen them so often. They are dangers that led Governments during the years to introduce and support the Criminal Law Jurisdiction Act. One of the great dangers is that someone will be extradited purely for the purpose of interrogation and questioning and possibly to get information about third parties when there is not really a case against the individual. The Minister is fully aware of that. I say to him that any changes that are made in relation to our shared desire to tackle international terrorism must provide adequate safeguards for our citizens.

Let us recall the trial and convictions of the members of the Maguire family. Annie Maguire spent ten years in prison for an alleged offence and for one that she obviously did not commit. Yet I do not believe that any Member of this House in any party who is familiar with the fact and circumstances of this case would deny that the Maguire case constituted a gross and tragic miscarriage of justice. Let us take the case of the Birmingham Six who were also sentenced to long terms of imprisonment. Many prominent people, including MPs from all British political parties, are convinced that in these cases also there was another gross and tragic miscarriage of justice due apparently to false confessions being beaten out of the people concerned and supported by flimsy forensic evidence. The Minister is well aware of these circumstances and of many others also. We must bear these in mind when we talk about making major changes in our extradition procedures. We have a duty to protect our citizens.

As the Minister has said, the situation in the North of Ireland is very special. He said that the reservations for the most part say in one form 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. He said that two countries, Germany and Portugal, have entered further reservations, particularly relating to West Berlin. Of course there are problems there. These two countries have entered very substantial reservations in relation to West Berlin as indeed they must because that is a divided territory. He mentioned that the Six Counties and various other countries have not entered reservations. He also stated that 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 "of" was omitted in the script — my apologies.

The Minister stated that the Government considered it was not desirable that this should happen and that realistically the issue arises primarily in the context of violence in Northern Ireland, that they believe that in the aftermath of the signing of the Anglo-Irish Agreement the proposals in this Bill represent the correct response, one calculated to advance most effectively the objectives. The Minister also commented on the position of our citizens in that respect. He agrees that that is where the major practical problem is. There is a real problem and a real danger of prejudice. That is something which must be faced by the Minister. When he is proposing to extend the whole area of political offence and to open it up more widely for extradition he must ensure that there are adequate safeguards in that regard.

The case of the Birmingham Six and the Maguire case are two of the more publicised cases. Are there more and will there be more? In introducing this Bill are we increasing the risk for further miscarriages of justice for other Irish citizens before British courts? We must ensure that the judicial process, in so far as it is initiated in Ireland, contains adequate safeguards and limitations to protect our citizens from abuse or injustice. Are we now to hand over our citizens on a mere charge sheet by rubber stamping the convention and without such protective reservations as most other European countries have entered? Are we to extradite to the single judge Diplock courts where, contrary to our law, the onus of proof is on the accused to prove that a confession was obtained by inhuman or degrading treatment?

Such a judicial process has been found wanting by public representatives of all parties in this House as well as by public representatives in the North. These considerations are only some of the many which point in the direction of the need for careful and cautious consideration of any newly proposed extradition measures. It is therefore all the more regrettable that the legislation has been introduced at such short notice and has to be rushed through the Oireachtas before Christmas. This rush is all the more disturbing in view of the fact that the legislation will not come into effect until June 1987.

The Minister has given us his views about the commencement date and has tied the Bill into other events. That is disturbing. Changes in our law should be made because we believe in them and because they conform to the principles on international law and the provisions in our Constitution. They should be able to stand on their own no matter what arrangements or deals are made. We have to be very careful when dealing with the area of justice.

In the course of his speech the Minister referred to what he described as an unusual commencement provision. It is extremely unusual and confusing and I was interested to hear his elaboration of the reasons. It appears that our legislation is being tied to matters that are uncertain. The Minister has told us that the legislation is being put into place so that it can be used in the event of certain things happening. He said he felt constrained a few weeks before Christmas to rush it through the Houses of the Oireachtas so that it could be implemented if other things happen. He said in the course of his speech:

...but the Government are firmly of the view that we now have a reasonable expectation of satisfactory progress over the next six months.

It is not good enough to introduce legislation on a "reasonable expectation". It worries me to see the Minister introducing legislation on that basis. We must adhere to certain objective standards, and they are available. If such standards require some modification over time, as occurred in regard to the hijacking of aircraft, the House can deal with that. Changes made in that way will result in us having good law.

I have no doubt that if the Bill was given adequate treatment here with all Members assisting the Minister in teasing out the pros and cons we would have a much improved Bill. It is unfortunate that that will not happen because of the procedure adopted by the Minister. I am concerned because we are dealing with the fundamental human rights of our citizens. It is not sufficient to set our citizens aside as the Minister has done and say that they will have to put up with this because a special problem exists. We agree that the special problem will have to be dealt with but it must be dealt with in accordance with the principles of international law. On Committee Stage we will try to bring the Bill into conformity with international law.

The Bill is being rushed through not in the interests of Irish people or the rule of law but for some ulterior motive. The Minister has told us what is going on and explained that he has great hopes that supergrass trials without corroborative evidence, the Diplock courts and other measures will be altered. He has told us that it will be possible to have confidence in the system of justice in Northern Ireland. The Minister should bear in mind that the period in custody is important. We should get assurances about the treatment of people in custody. There is a blemish on the record of the British Government in that regard. In 1971 the Irish Government had to bring the British Government before the Court of Human Rights because of inhuman and degrading treatment of persons in custody. The British Government were found guilty of that breach. We have been told today that there will not be a recurrence of such incidents but there is evidence that standards do not apply when Irish citizens are being dealt with. The Minister may refer us to the section which deals with race, religion or political opinion but I do not see that having effect in practice.

We must be prepared at all times to support new measures aimed at bringing criminals to justice here or abroad. As the Minister's predecessors will emphasise if there is evidence against an individual that person can be brought to trial here under the Criminal Jurisdiction Act. It is wrong for others to suggest by innuendo or otherwise that such a system is not applied to all here. I am not accusing the Minister of making such suggestions. Members on all sides have supported that legislation. It is important to point out that an individual found guilty on evidence produced before any of our courts will have to suffer the full brunt of treatment by the courts here or be extradited. This House has stood by that commitment and that should be made clear, however distasteful it may be. Members have never shirked their duty in that regard.

Where the legislation governing extradition, particularly for political offences, is being radically altered it must be accompanied by suitable safeguards and limitations to guard against a miscarriage of justice and against the sending of citizens into a police state or into a legal system that is not above suspicion. On Committee Stage we will be putting forward suitable amendments to meet those needs. We are not opposing the Bill at this stage but we are looking to the Government for clarification of that fundamental issue. All Members are aware of the concerns about the administration of justice in Northern Ireland. The more one gets involved in this area the more one discovers how things happen and what is going on. The written law is not adhered to in practice in all cases, not only in those that are publicised but in cases that occur abroad. In recent times we have seen Irish citizens abroad being subjected to harsh interrogations of the type we do not see in our judicial system. In the Flynn case we are told that the interrogation was severe and lasted for a long time, and that the methods were not what we would stand over. We must ensure that legislation will include necessary safeguards when we decide to abide by the convention. Because of the time factor and the rush of legislation before Christmas it is obvious that today we can only scrape the top of the legislation without going into the details. When member states' representatives come together in Europe to deal with these things we must try to develop a convention of safeguards that should apply throughout the participating states.

The Minister spoke about the difficulties involved in introducing the prima facie principle. On Committee Stage we will have to go into this in great detail. The Minister must bear in mind that he is in the process of creating a new situation here, that Britain may change its position in future, and we cannot afford any more to be relying on other events in other places. The question of equal treatment will have to be applied in all systems — whether people are to be tried in Irish courts or outside, they will have to be treated equally in the different jurisdictions. We have opened up the entire question of political offences and it will be difficult in future to know what a political offence will be. That is another reason why we must tease out the entire Bill on Committee Stage so that we can decide what will be regarded in future as a political offence. I have suggested that the power given to the Minister in section 4 should be removed. There is also the matter of retrospection, and that must be given special attention.

The Bill was circulated only recently, having been introduced on Tuesday with the requirement that it be taken today. I would point out that that does not leave us much time to consider the entire ground to be covered. I suggest it would have been appropriate to have this Bill sent to an all-party Oireachtas Committee particularly because in the time allotted we cannot give it the general consideration it requires.

I wish first of all to reply to a theme which Deputy Woods harped on, not just constantly but with an incredible variety of formulations. I believe I heard his opinion on the matter not once but 25 times in the last hour. I will refer to a point on which the Minister put some emphasis, the bearing of this Bill on citizenship. The Minister rightly said that, though many countries do not extradite their own nationals, if we were to take that line on this occasion we might as well not bother our heads with the Bill at all. Circumstances here are such that in the nature of things the people who have created the problem that we in our fallible way are trying to deal with are all Irish, some of them because they or their parents, or some other ancestor were born, in the jurisdiction in which we are now sitting. Some of them, by courtesy of the action of the second inter-Party Government in 1955, through the mechanism of the Irish Nationality and Citizenship Act of that year, attained Irish citizenship willy nilly, because one of their parents or even one of their grandparents were born anywhere in the Thirty-two Counties.

That necessarily conferred what naturally the unionists regarded as an insulting distinction — it conferred the distinction of Irish citizenship on almost everybody who was an adult in the north-eastern six counties of this country. Mr. Paisley is an Irish citizen and is as much entitled as I to carry a green passport with a harp on it or a wine-coloured passport with a harp on it. I had better not go into it and involve too many personalities, but any Deputy can make his little list in his mind of people who would be the fastest to disclaim the benefits of Irish nationality.

They are all Irish citizens, thanks to a Bill introduced here by the late James Everett, then Minister for Justice; and, though I believe it gave more offence than it was worth, it was agreed to by all sides of the House.

I do not disagree with the general attitude of caution to extradition expressed by Deputy Woods, but I put to Deputies who have this thought uppermost in their minds this suggestion: suppose we found a refuge here — it is not impossible because it might be supposed that this is the place one is least likely to look for them — for a nest of loyalist murderers who had assassinated nationalist politicians in the North and thought they would lie low somewhere in Monaghan or Donegal for a week or two. They would be Irish citizens, just as much as Deputy Woods and I and, on Deputy Woods's argument, as much entitled to all the safeguards. If his argument is sound for a person with green origins, it is equally sound for one with orange origins. I believe he would accept that. I throw this out merely to drive home the point the Minister was quite right in making, that almost everybody in all the 32 counties of this island are Irish citizens in the eye of the legal system over which we preside.

If we were to make a special case for citizens here, we would, because of that special circumstance, be making nonsense of the whole attempt to join this convention. It is a quite different situation as between France and Germany. The French have not wished their citizenship on the Germans, and the Germans have not wished their citizenship on the French. This is a special case. God help us, but there are many criteria on which this unhappy country is a special case, and this happens to be one of them. It is not a particularly deadly one, I suppose; it does not very often surface in this House, but it is highly relevant to the measure which the Minister is promoting here today.

I am very interested to hear Deputy Woods's enthusiasm for the Criminal Law Jurisdiction Act. I must admit I was enthusiastic for it myself, because it seemed to me that it did offer at the time, back in 1976, a way in which we could respectably — and I stress respectably and honourably — avoid having to get into the sensitive and disagreeable area of extradition. I could see then no reason why people accused of offences committed in the North of Ireland, if apprehended down here, might not be tried here, and vice versa, but it somehow has not worked. Although it is possible to point, as Dr. Woods did point, to a small number of cases in each jurisdiction in which the Act has been employed, the consensus among the police and the justice authorities on both sides of the Border is that, for one reason or another, it is not an adequate means of suppressing terrorism. In other words, the bright hopes entertained for it have not been realised.

But that is not the only reason for my surprise at Deputy Woods mentioning it. Although I cannot swear, without going back and looking at the Official Report, that his party actually voted against that Bill — it may be that they adopted a somewhat two-faced attitude to it — my recollection, for what it is worth, is that they were opposed to that Bill when it passed through here in 1975. Most certainly I remember one expression used about it by Deputy Lenihan. It may be that we are all so fond of Deputy Lenihan that any mention of his name takes the harm out of what will follow. Perhaps it would have been better if I had said "a prominent front bench member of Fianna Fáil", because he certainly is that; he is the acceptable face of Fianna Fáil, for my money. But Deputy Lenihan described that measure as "extradition by the back door". I am quite certain in my memory about that; my memory is often enough not reliable but that does stick in my mind. What this Government were aiming to do in order to avoid getting into extradition was denounced by Deputy Lenihan as "extradition by the back door". I make all allowances for Deputy Lenihan's hyperbole. I make all allowances for the curious perspective he has of life and also for the fact that he is, politically speaking, shameless, that one might as well try to sink a cork floating on a pond by throwing stones at it as try to get Deputy Lenihan to admit shame about anything political.

The word is "irrepressible".

He is that too. Perhaps I should not say it in the presence of Deputy McCreevy or others but in many respects he does a lot to redeem Fianna Fáil in my eyes because I feel he is a human being and has other qualities which are spread fairly thin among other members of his party. However, at the same time, my clear recollection is that Fianna Fáil opposed that Bill at the time and I am amazed at Deputy Woods, even if they did not actually vote against it and spoke in the terms I have just indicated, calling it now a fair system supported by Members on both sides of the House.

It is a fair system and I do not dissent from that, and I am sorry that it does not seem to have worked. Evidently it has not worked and it did not save us from the reproach which the unionists of all kidney — and I am not just talking about the savages and the madmen among them — level against us, that we provide in this State here a refuge for terrorists. I am not particularly concerned about what Mr. Paisley or Mr. Robinson or any people of that sort say about us. They are in the business of making people hate one another, Roman collar or no Roman collar. That has been Mr. Paisley's life's work, getting Christian people to hate and fear one another. I am not especially concerned about his ill-opinion or his good opinion; I care nothing for his opinion one way or the other. For my money he is the person who carries the greatest individual personal share of responsibility for all the horror and cruelty and sorrow that has come over this country in the last 16 or 17 years.

I say that although everyone in this House knows how bitterly I detest the IRA and everything they stand for too, but it was he who laid down the soil out of which that poisonous growth emerged. it was he who mulched it and dug it over. If the unionist people who believe in him and believed in him then could see it from that perspective, perhaps they would understand the situation that this parliament is in, in trying to deal with our madmen and our savages, in trying to marshal public opinion and keep public morale right about this matter, and go out on a limb to do so, as Liam Cosgrave and Jack Lynch did in order to keep public opinion more or less right on matters like this and went further out on a limb than any unionist leader ever did without getting pulled down. At the same time, there are decent unionist people who genuinely think that this State is just a bolt hole for terrorists. These are not just people whose opinion must be indifferent to us. I am not speaking about the Paisleys. I am speaking about decent, middle-of-the-road people whom we have to aim to convert, whose hearts we have to aim to win sooner or later. None of us may be here to see that day and perhaps it never will arrive. It is not ours to command, but that cannot be done for so long as they entertain suspicions of our bona fides.

I am black in the face arguing with unionists whenever I meet them. Whenever I do meet one I do not shirk arguing these points with him. I make the point that the Border is as long on one side as it is on the other. It runs through the very same bogs, crosses the very same hills, goes across the same lakes on the North as it does on the South. I cannot see why it should be any more difficult or any more easy to guard on one side than on the other. I cannot see why, if the resources of the British Empire plus the local resources of the Northern people themselves cannot guard the Border on one side, we should be held up to disgrace because we have not succeeded in sealing it off completely on the other, with far inferior resources. I object very much to that line of argument which I hear coming from unionists, and I do my best to rebut them whenever I get a chance. No sooner has one rebutted that argument than they are off to another one, about how the Protestant population has declined here in the Republic over 60 years. When one has satisfied them on that, they go on to something else; but one has to keep trying and one may even have to do things which one would not think of doing if one were in a situation of a different kind.

Let us suppose we were in a situation of this kind merely vis-á-vis the British who do not any longer, I presume, harbour the ambition to rule this Republic — nor do we harbour any ambition to run their country for them. I would not be very pushed about a measure of this type but since we have to try to conciliate people with whom we aim one day to share a State — if that is God's will about it — we must contemplate bending over backwards, bending over further perhaps than prudence or other emotions might lead us to do in other connections and with other neighbours. If the Government's judgment is — and I accept that it is a judgment which has been arrived at in the context of an agreement which I support — that this Bill is necessary in the very form in which it stands, I will support them and do so without the faintest reluctance or misgiving. However, it has to be said and should be made clear here that we are doing more, as Deputy Woods pointed out, than other countries would do towards one another, and if we are doing so it is intended as a gesture towards people who distrust us, who fear us, and many of whom hate us. If it does not achieve some mileage in that direction it is not worth having.

I said a minute ago, and I want to repeat it, that extradition is a disagreeable expedient, and although I detest and abominate everything the IRA stands for, to some extent it goes against my grain to send anybody out of the jurisdiction of this State, which I trust, into the jurisdiction of another state, whatever their offence or alleged offence. It goes against my grain, and I am sure the same is true of any member of this party. It is a thing we would all much rather avoid — not let people away with their crimes, not fail to punish them, but to hand them into another jurisdiction is something which I must say goes against my grain, and only the strongest considerations, bearing on the larger objective of which the Anglo-Irish Agreement is a symbol, would lead me to swallow it.

The Criminal Law (Jurisdiction) Act, which Deputy Woods talked on is not the only alternative. There was the further alternative of all-Ireland courts which, of course, would be the best of the lot because it would be an all-Ireland institution. That was considered in 1974 by the commission set up after Sunningdale and was rejected partly because it would have involved colossal convulsions here with regard to amending our Constitution and harmonising two separate systems of criminal law, criminal evidence and criminal procedure. I think nobody here would have objected to that system. If we are aiming for an all-Ireland State I cannot see why an all-Ireland judicature should be anything other than welcome.

However, we are stuck with what we have got, a Criminal Law (Jurisdiction) Act which does not adequately meet the case, in spite of the few instances, and they are only a few, that Deputy Woods produced. The Government have come to the conclusion in the context of the Hillsborough Agreement that we should now sign the European Convention on the Suppression of Terrorism and enact the Bill which is before us.

I want to say a few words of a historical-legal kind about the question of extradition in the courts and in regard to the Constitution. The Irish representatives on the 1974 commission — I mention them with great and unfeigned respect: two extremely distinguished judges who are still both judges of our courts, another gentleman who became a judge but has since died I am sad to say and a fourth member who was an official of very long experience and who enjoyed rightly, I say with pleasure because I know him personally, the very highest regard in every respect from his colleagues in the public service and from anybody in political life who had the good fortune to encounter him — these Irish representatives, I say, speaking under the hat of my pretensions as a lawyer, were wrong in taking the view in 1974 that our Constitution ruled out the enactment of law under which political offenders could be extradited. It did, of course, make things easy for us emotionally, because we were spared the disagreeable necessity of considering enacting such a law. I say with the respect owing to four such authorities that I think their opinion on the matter was not correct, and I grieve to say that I think that the other side of the commission — the Northern Ireland and British side — have the better of the argument. We could say that it is an impertinence for them to interpret our Constitution for us, but the Constitution has an English version and our laws and Constitution are drawn up with a common law tradition and it is just as easy for a non-Irish lawyer who understands English to get to grips with the two instruments, compare them with each other and see to what extent they are inconsistent as it is for one of our own. I am sorry to say this, but I have always thought that an impartial observer now reading the relevant pages of the 1974 commission's report will come to the conclusion that the Northern Ireland and British representatives had a better case when they said that there was nothing to prevent us from enacting legislation of this kind.

The Irish side took the view that the generally recognised principles of Article 29 included the principle that states must not extradite for political offences. The English and Northern Ireland side took the view that international rule was not correctly expressed in that way, and that the most one could say was that international law permitted the refusal to extradite political offenders whose extradition was sought, but it most certainly did not forbid their extradition. The Northern Ireland and British side were able to produce a decision of our Supreme Court in 1950 or 1951, delivered by Chief Justice Maguire, in which he said, and the court formally held, that there was no principle in international law which forbade the extradition of political offenders. Here was an embarrassing and painful situation. The Northern Ireland and British side were able to produce a judgment of our Supreme Court which asserted just what the Irish representatives on the Sunningdale Commission were denying or the other way round if one prefers.

I think that is correct. The authorities cited in the old case and the authorities who are citable since then establish that, although international law is very familiar with a principle whereby states are free to refuse to deliver a politically motivated offender or somebody whom they suppose to be that, no rule of international law forbids them to deliver such a person up. Even if there was such a rule, that rule by itself would not invalidate legislation passed by this Oireachtas. That was another leg of the Northern Ireland and British case which was, perhaps, not so strong as the first leg. The first leg was very strong. They might have added that international law anyway is a flexible system; it is still in a rather early condition of growth; it has not yet become rigid; it admits change and development. We see changes happening under our eyes. When everybody in this House was born the offshore three mile limit applied everywhere. That was all there was. Take a simple incident to show what has happened since then. All kinds of countries in all patterns in different regions of the globe have begun to extend unilaterally, then jointly, then by convention, then by limitation, the three mile limit to a six mile limit or a six mile limit to a 12 mile limit. Unilaterally they have elected new limits for fishing purposes and further limits again for mineral exploitation purposes. A whole body of law has grown up in this area which did not exist when we were children. That is not being done only by legislation or by treaty; it is being done by usage and practice, one of the means by which international law changes. A rule of international law and a generally recognised principle are that a pattern of usage and a pattern of regional agreements can validly modify international law. I am not an international lawyer, but I have sufficient smattering of knowledge of the subject to think that this is true. The rules are suspectible to modification for regional purposes and according to usage.

This Irish view was relied on by Governments here in subsequent years in perfect good faith, I have no doubt. The difficulty was in telling the British that there is no use in talking to us about extradition, because the best legal opinion we have is to the effect that you cannot extradite people charged with a political offence — that difficulty was cut at a stroke, like the Gordian knot by a sword, by the Irish Supreme Court in two or three cases at the beginning of the eighties, when that court, led, as Deputy Woods said, by the Chief Justice of the day and acquiesced in by the other judges, said that whether or not there is a principle of international law which forbids the extradition of people wanted for politically motivated offences or not, we decline to give the honourable title of political offence to a piece of barbaric savagery. We decline to dignify with such a phrase an act of cold blooded cruelty, so that irrespective of what international law says about a political offence, we are not going to characterise this murder, explosion or whatever it may be as a political offence because it is so far below the level of what ordinary people regard as political as not to be entitled to that dignity.

That got over the difficulty as far as extraditing two or three people was concerned. I want to come back to those individual cases in the afternoon; but let me say now that that decision reached by the Supreme Court was not wholly satisfactory from the legal point of view because — I say with the deepest respect to the court — if you are trying to define a political offence, and Deputy Woods seemed to be not far from scratching this problem, probably you cannot do it without reference to somebody's intention. If you are dealing with somebody who denies having to do with an offence at all, who says that it was not he, that he was not there, they have got the wrong man, how can you form any opinion, except by the circumstantial features of the case, about the intentions of the person who committed the crime?

Debate adjourned.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.