Extradition (Amendment) Bill, 1987: Second Stage.

I move: "That the Bill be now read a Second Time."

As the Dáil will be aware, it has been the practice for the Taoiseach to introduce Bills to which the Government attach special importance or which represent a significant new development of policy, even where the legislation, when enacted, will be the particular concern of another member of the Government. This Bill is clearly in that category involving as it does a major policy issue which is bound up with our relations not only with our nearest neighbour but with practically all the member countries of the Council of Europe. It is for this reason that I have thought it appropriate to move the Second Stage of the present Bill.

The Government have decided that the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, should come into operation on 1 December, and at the same time to provide by legislation specific statutory safeguards for persons whose extradition to Northern Ireland or Britain is sought in the new situation.

The purpose of the Bill is to provide these safeguards. Before outlining them, however, I should like to explain to Deputies the present position because there is some confusion both inside and outside the House about it.

I wish first of all to make it clear that we are not "introducing" or "bringing in" extradition. We have had extradition here for a long time. It is not perhaps widely appreciated that extradition has been part of the normal law of this country since the foundation of the State. The present special arrangements for extradition between this State and Northern Ireland and Britain have been operating since 1965. They are laid down in the 1965 Act. Under that Act since 1965 to date 733 persons have been extradited to Britain and 158 to Northern Ireland.

That 1965 Act enabled us to ratify the 1957 Convention on Extradition, to which almost all European countries belong, with the exception of Britain which now intends to become party to it. Under the 1957 Convention it is not possible to have a prima facie requirement, on the understanding that a warrant for the arrest of a person on a criminal charge will only be issued by the competent authorities in other democratic European countries, where there is strong evidence against that person.

Under the 1965 Act it is possible for persons whose extradition is sought by a foreign country to claim that they should not be extradited because the offence for which they are sought was a political offence or an offence associated with a political offence. It is that aspect of the 1965 legislation with which we are now concerned.

Recent court judgments on extradition since 1982 have developed a more restriced interpretation on this aspect of the 1965 Act. These would have required legislative clarification in any event, as amendment of the law is the prerogative and responsibility of the Oireachtas, which has at the same time the opportunity to consider any safeguards which may be consequent on the change in the law. Even if we were to scrap the 1987 Act entirely, extradition under the 1965 Act would continue and the judgments made since 1982 would continue to operate without any influence from the Legislature. Deferring the 1987 Act or stopping it from coming into operation would do nothing to stop extradition from continuing.

The European Convention for the Suppression of Terrorism in effect provides that for four particular categories of crime the countries subscribing to the Convention have agreed between themselves that it will not be possible for persons accused of committing a crime in this category to plead that the crime was political as a defence or reason why they should not be extradited.

When the 1987 Act comes into operation on 1 December the only change it will make will be that in respect of four categories of crime, namely, hijacking an aircraft, kidnapping or killing by use of explosives, automatic weapons etc., murdering a diplomat or a high official, a person may be extradited to any of the countries which have signed the convention even though the person claims that the crime was a political offence. That is the only change it will make. It will not introduce extradition or bring in extradition because extradition is already there and has been there since the passing of the 1965 legislation and before.

An important aspect of our current situation is that the campaign of violent subversion we face is not either isolated or limited to the confines of this island. We are in fact dealing with a campaign of violence that is international in character, which uses legal systems and frontiers to its own advantage and for its own ruthless purposes. The persons organising this campaign now have access to a frightening armoury of weapons, explosives and materials.

The arrest of the Eksund by the French authorities and the seizure of her frightful cargo has focused attention on the European and international dimensions of the threat that confronts us. In that connection it is important to recall that the very purpose of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, the legislation due to come into operation on 1 December, is to enable us to subscribe to a convention among the nations of Europe to assist each other in responding to exactly this type of situation.

The background to that Convention was the growth of international terrorism, which has affected almost all European countries, and which led to the strong conviction among States that share common democratic traditions and values and that are political partners that persons who commit acts of terrorism in or against any one of them should not be able by escaping to a neighbouring country to avail of the political offence exception and claim exemption from extradition.

As a member of the community of European nations sharing common values and principles we must join in this common fight against terrorism. Our European friends would not understand any other attitude on our part and I would not be prepared to see Ireland isolated on this issue and become the victim of accusations and reproach.

Ten years ago there were fears that there might be a constitutional difficulty related to international law, which prevented us from signing the Convention, but judgments by the Supreme Court in recent years, as well as developments in international jurisprudence, have removed any such difficulties.

I conveyed to the French Prime Minister our gratitude for the timely interception by his authorities of the Eksund, and told him that this action saved many lives in Ireland. But the Eksund was not an isolated example. We know of reports, which must be taken seriously, that other shipments of weaponry and explosives may have got through to Ireland by similar means within the past few years. This is not a limited domestic problem. We are dealing with terror and subversion which has international ramifications.

The kidnapping of Mr. John O'Grady and the sickening cruelty that was inflicted upon him brought a new dimension of awfulness. Mr. O'Grady's life was under very grave and immediate threat until the Garda succeeded in finding him and securing his escape to the relief and gratitude of the whole nation. Detective Garda Martin O'Connor was wounded very seriously during the rescue but thankfully he is making a steady, if slow, recovery. I am sure that all in this House would like to wish that brave man well and add our hopes for his speedy recovery. Many members of the Garda Síochána risked death and injury doing their duty during the whole kidnap episode. On some occasions they did not have the success their efforts merited but their diligence, zeal and courage were never found wanting. Let us salute them and be deeply grateful we are served by such a force.

Deputies

Hear, hear.

Five people have already been charged in connection with the kidnapping. The person reputed to be the leader of this vicious group has yet to be apprehended, but I am confident he will be as a result of the Garda's continuing intensive search for him.

Then on Sunday 8 November came the horrible atrocity at Enniskillen. A group of Irish people, men, women and children, had come together to honour their dead. They were devastated by an IRA bomb. Eleven were killed and over 60 hospitalised with injuries, many of them so seriously that they are still in hospital. We have all heard the heart-rending accounts by the survivors of the horror of the bombing. The dignity and the Christian forgiveness shown by the survivors and relatives of those killed was deeply moving and inspiring. Following that event, I conveyed sympathy on behalf of the Irish people to those injured and to the relatives of those killed in the atrocity and spoke on behalf of the vast majority in Ireland when I said that the security forces in this island must combine in an all out effort to bring the perpetrators to justice.

The convergence of these three major events in a short space of time has brought home dramatically to us all the reality of the terrorist violence which effects the whole of Ireland North and South. The tragic problem of Northern Ireland is not of our making but we have to live with it. We have to watch the suffering and the agony of the people of Northern Ireland and face up to all the many implications it has for us in this part of Ireland.

All Irish Governments have had to meet the demands of this situation. They have had to devote their time and energy to coping with it and sometimes to provide massive resources of men and material to counter violence and subversion. The tragedy of Northern Ireland has distorted normal relations between Ireland and Britain and continues to distort them. They can never achieve that high degree of harmony and normality that we all desire until a solution to the problem of Northern Ireland based on justice has been promulgated.

In the New Ireland Forum all those who subscribed to the constitutional nationalist position came together with the utmost sincerity of purpose to endeavour to formulate a solution. Subsequently the last Coalition Government brought forward the Anglo-Irish Agreement as their contribution towards political progress.

But while we were making these efforts democratic politicians had to contend with the realities of terror and subversion which became increasingly sophisticated and ruthless in its approach. We have had to devote time and energy to these matters when we would all have wished to have been concentrating exclusively on other pressing social, cultural and economic problems. The revelations of the past few weeks of the character, the extent and the effectiveness of the forces of subversion must strengthen us in our resolve to deal with this menace and protect the security of our State and the lives and well-being of our citizens.

I would like to remind this House and especially those who share with me an adherence to genuine republican principles that Fianna Fáil and Governments of the past have had to meet and have met resolutely threats to the security of this State. During the last war Eamon de Valera and his colleagues had to face and defeat a major threat from the IRA of that day to the security and independence of the State and to our parliamentary democracy. They met the challenge with every means at their disposal. There have been other major threats since then and we can only be eternally grateful that Government resolve and the loyalty and effectiveness of our security forces saw us safely through.

Many commentators have made the point that major decisions of this kind should not be taken under pressure or in the highly emotional atmosphere created by the Enniskillen carnage. They are right. It is not wise to legislate in any area on the basis of or under the impact of one particular happening. But we are not taking a decision on this legislation because of one particular event. A combination of happenings on different fronts has brought deep concern about the security of the State and the safety of our citizens. These developments have brought a new urgency to the situation. The impact on public opinion has been profound, a mixture of anger, revulsion and sorrow and a deep underlying anxiety about what our society is facing in these disturbed times.

Following recent events special policing and security measures have been taken. The Garda Commissioner and the RUC Chief Constable met immediately after the Enniskillen bombing to ensure that there would be all possible co-operation in the hunt for the perpetrators. We have also had a special meeting of the Anglo-Irish Conference here in Dublin to discuss ways in which existing security co-operation between the two Governments might be enhanced. The Garda with full support from the Army have undertaken a major search for arms and explosives that may have been smuggled into this country during the last three or four years and this search is continuing.

I mention these events as immediate background to the discussion of the Bill now before the House but I would like to emphasise that what we are opposing is not due only to these happenings. Enniskillen was not an isolated event. Within a day or two of the Enniskillen murders a further bomb was found and defused near Pettigo. In Belfast security measures prevented what might have been an even more horrendous explosion. We are not dealing with the politics of the latest atrocity. We are dealing with a campaign which has seen almost 3,000 violent deaths. Legal co-operation is an essential feature of the fight against serious international crime and terrorism.

Extradition is one of the measures available to civilized nations for combating terrorism. We are, of course, already playing our part in international legal co-operation of this kind. As I have said, we have been a party to the European Convention on Extradition of 1957 and have been operating the provisions of the Extradition Act 1965 for more than 20 years. That Act also provides the basis for our extradition arrangements with Britain and Northern Ireland, the United States and Australia.

Both the Convention on Extradition and the 1965 Act provide that extradition shall not be granted for a political offence. However, as most Deputies are aware, within the past five years the Supreme Court has decided in a number of cases that people who were wanted in the North for crimes of terrorist-type violence should be extradited and has rejected their claim that the crimes concerned could be regarded as political.

The Supreme Court has taken the approach that modern terrorist violence in many cases cannot reasonably be regarded as political and that the test of whether an offence is political is whether the particular circumstances showed that the person charged was at the relevant time engaged, either directly or indirectly, in what reasonable, civilised people would regard as political activity. Likewise the idea underlying the European Convention on the Suppression of Terrorism is that certain crimes are so odious in their methods or results that it is not rational to classify them as "political" offences. These court decisions are now part of our law and have been operative for some years.

What the Convention and the 1987 Act do is to confirm statutorily that particularly abhorrent crimes generally involving large numbers of people or particularly serious forms of crime are not to be regarded as political offences in any circumstances.

The European Convention on the Suppression of Terrorism is a Convention to which virtually all the member countries of the Council of Europe have acceded. The countries which have signed or ratified the European Convention are Austria, Belgium, Cyprus, Denmark, France, the Federal Republic of Germany, Greece, Iceland, Italy, Liechtenstein, Luxembourg, Malta, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, Turkey and Britain. The Convention was also signed, on behalf of Ireland, in Strasbourg, in February 1986.

What the Government are now doing is introducing legislation in our domestic law which will provide safeguards for Irish citizens when the Convention comes into operation. I must emphasise again that under court judgments people are already being extradited in terrorist cases. The implementation of the 1987 Act and the ratification of the European Convention on the Suppression of Terrorism are, therefore, to an extent symbolic. In ratifying the Convention, the Dáil will be to a large extent merely giving statutory effect to what the law already is and indicating our willingness to co-operate with countries who think the same as we do in defeating international terrorism.

I would like at this stage to point out that, in Opposition, Fianna Fáil accepted the 1987 Act in principle. We did not vote against it. We sought to have safeguards inserted in it but we did not oppose its passing because we did not wish Ireland not to be able to implement the Convention. Let me recall specifically what our Justice spokesman in Opposition, Deputy Michael Woods, said in this House on 4 December 1986 and I quote:

In this spirit of international co-operation we support the principle of this Bill and will support its Second Reading

remarks which were preceded by the statement that:

We must also ensure, as do our European partners, that adequate safeguards are included in any extradition legislation.

That is the same approach we are adopting today.

Deputies will recall that in the joint communiqué that was issued after the signing of the Anglo-Irish Agreement on 15 November 1985, ratification of the Terrorism Convention was set against the background of progress in relation to a number of matters under the agreement, including public confidence in the administration of justice in Northern Ireland and relations between the security forces and the minority community. The commencement clause was designed to enable the Dáil and Seanad to defer a final decision on commencement and to look again at progress in the building up of public confidence in the administration of justice in Northern Ireland.

There have been changes in Northern Ireland which represent progress in that regard and I would not wish to downplay their worth and significance in their own terms. However, the Government consider, and I am sure that Members of the House generally will share this view, that there is still a great deal of room for further progress.

Successive Irish Governments have always regarded the problem of increasing the level of confidence of the nationalist section of the community in Northern Ireland in the administration of justice as an essential element in the process of restoring peace and stability to the North. The courts there and the special court system here were set up many years ago to deal with what was then thought would be a short-lived campaign of terrorist violence. That assessment has not proved to be correct.

I would suggest, therefore, that we in each jurisdiction, without reflection on either system, might do well to initiate a formal study of the special arrangements for handling terrorist cases in both jurisdictions to serve as a basis for further discussion between both Governments.

Apart from concerns about the administration of justice, the other main issue is that of safeguards in the extradition law itself. Extradition, especially of one's own citizens, is a very sensitive issue in every country. As I have already said on another occasion, to hand a citizen over to another jurisdiction is something that should be undertaken only with great care and scrupulous regard for all the circumstances. It is clear from the experience of all States, including Britain, who at this very time have their own legislation on the stocks dealing with this most sensitive of issues to enable them to ratify the European Convention on Extradition of 1957, that the question of extradition raises deep anxieties and that the public are vigilant to ensure against the arbitrary or unreasonable return of fugitives to foreign jurisdictions, even to friendly countries.

The major source of concern here is that an extradited person should get a fair trial in the receiving country. On this, the Extradition Act of 1965 provides specifically that extradition shall not be granted for any ordinary criminal offence if there are substantial grounds for believing that a person's position may be prejudiced on account of his race, religion, nationality or political opinion. A similar provision is contained in the Convention on The Suppression of Terrorism and is specifically enacted into law by the 1987 Act. The courts here, therefore, have full jurisdiction to refuse extradition in any case where they think a person's right would be prejudiced on any of these grounds. That jurisdiction will remain fully in operation under these proposals.

Our concern stems from two basic underlying principles. The first is that extradition affects the right of the citizen to liberty and there should be protection against the possibility that it might take place in any arbitrary way. The second basic principle, which is well established internationally, is that extradition is not for the purpose of questioning the person concerned but to bring a charge in a court of law. It is in this area that it is vital that there should be a new statutory safeguard for the rights of the person who is wanted for extradition and it is that safeguard which this Bill will provide. If there is already sufficient evidence against a person at the time when his extradition is sought, the question of his extradition for the purpose of getting enough evidence to charge him with does not arise.

The argument has been made that we should look for a prima facie case established against a person in our courts before extradition. Though this argument has many attractions superficially, the reality is that if this country were to require a prima facie case to be made out by a country which is party to the Convention on Extradition, we would no longer be able to remain party to the Convention, under which we have operated for more than 20 years. Those who advocate the prima facie requirement should be absolutely clear that that is what it would mean.

As well as forcing us to leave the 1957 Extradition Convention, a prima facie requirement would be a major practical obstacle to extradition. It would mean that prosecuting authorities in a foreign jurisdiction would have to produce a book of evidence founded on their law but which would also have to comply with our law. The problem of having to have key witnesses from that jurisdiction available in court for examination on their written statement would also arise.

What the present Bill will provide is an alternative statutory safeguard which will meet the concerns in this area in an effective and positive way. At the same time it will enable the system to work without the difficulties that the requirement that a prima facie case be made out in court would cause. The Bill will amend Part III of the Extradition Act, 1965, which regulates the execution in the State of warrants received from the neighbouring jurisdictions of Northern Ireland and Britain.

Under Part III extradition warrants to Northern Ireland and Britain must be endorsed by the Commissioner of the Garda Síochána for execution in the State. The change now being made by this Bill is that the commissioner will be obliged not to endorse a warrant if the Attorney General so directs. The Attorney General will be required to give such a direction unless, having considered such information as he deems appropriate, he is of opinion that there is a clear indication to prosecute, and that this intention is founded on the existence of sufficient evidence.

This important new procedural step will mean that the Attorney General will have to form an opinion himself as to these matters. The Attorney General will be required to exercise his function and form his opinion about the existence of, and the foundation for, the intention to prosecute in each and every case.

It is the Attorney General's intention that this important new procedure will be operated as efficiently and with as little complication as possible. The provision about sufficiency of evidence will be applied in a way which will provide the necessary safeguard for the rights of the person wanted for extradition. But it will not create the major difficulties that the requirement that a prima facie case, be established in court, would involve.

Since publication of the Bill there have been some suggestions that the new procedure would provide an insufficient safeguard because the function involved will be exercised by the Attorney General and not by a judicial person. It is not clear what precisely those who have made this point have in mind. If the suggestion is that a judicial person should scrutinise the evidence against the person sought, that would amount to a prima facie requirement, which would be a serious barrier to extradition. What the Bill does is to provide a new administrative safeguard which will give effective protection to the individual but will not unduly restrict legal co-operation in criminal matters.

It is unreasonable to take an "all or nothing" attitude to the sufficiency of evidence question. At present there is no safeguard at all on this issue. It is seriously being suggested that the only alternative to this unsatisfactory position is a requirement that a prima facie case be made out in court, with the disadvantages that would bring with it? The Bill strikes the right balance — it gives effective protection without being excessively restrictive. An administrative safeguard which is imposed and regulated by statute is a real safeguard and a substantial improvement over the existing position.

Another major concern is that a person might be charged with an offence other than that for which he or she was extradited and that the other offence might be political.

It is in everybody's interest to take steps to reduce to the minimum the risk of such an error occurring, which would have a very damaging effect indeed on the extradition process within these islands. It is for this reason that the Bill now before the House includes provision for introducing a statutory rule of specialty into our extradition arrangements with Northern Ireland and Britain in accordance with the standard laid down for more than 20 years in the Extradition Convention and incorporated for other countries in the 1965 Act.

The rule of specialty is not designed to shield people against additional charges in general but only against additional charges for offences which are not themselves extraditable — for example, a political offence. The way this safeguard works is that charges cannot be added except with the consent of the State which has granted extradition. But if the other charge is for an offence which would itself have been extraditable, that consent must be given.

The rule of specialty as contained in Part II of the 1965 Act is provided for in sections 20 and 39 of that Act. The Bill provides that the Minister for Justice may by order apply the provisions of these sections, with any modifications he deems necessary or expedient, to extradition requests from Northern Ireland or Britain. The reason that provision is being made for the making of an order by the Minister is that the rule of specialty can operate only if corresponding provision is made in the law of the requesting country. The British Government will consider the introduction of such a provision into their backing of warrants legislation at an early date and the coming into force of the order made under this Bill by the Minister for Justice will be timed to coincide with the coming into force of that amendment to their legislation.

In the meantime the safeguard contained in section 50 (2) (b) of the 1965 Act will, of course, continue to apply. It enables a person facing extradition to Northern Ireland or Britain who thinks that he might be charged with an additional offence, not specified in the warrant, which would be political, to raise this plea in the High Court before he is returned. If he is successful, the court will refuse his return. In addition, until such time as the Minister's order is made, there will be an administrative arrangement with the British authorities, which will ensure that additional charges of a political nature will not be brought after extradition and that the specialty principle will be observed.

I wish to assure the House that these new arrangements which will come into operation with the Bill will be carefully monitored by the authorities here. I believe that this is of crucial importance. Public opinion would wish to be assured that extradition works fairly and properly, that persons accused get a fair trial and proper treatment and that the arrangements will be scrupulously adhered to. We are determined that they should be implemented with a scrupulous regard for what has been laid down in the relevant convention and in our legislation. We wish to see the arrangements upheld, both in letter and in spirit. If they are not adhered to I know the Dáil and the people would expect me to come back and set the arrangements aside. I wish to give the Dáil an assurance of my intention to do that.

It is our intention to institute a new regime of monitoring and observation, and to give that process a statutory basis. This legislation will provide that in future the Attorney General will have a statutory obligation to prepare and submit to the Government an annual report on the operation of extradition arrangements and the cases that have taken place under these arrangements in the previous 12 months.

I also wish to make it clear that should it emerge after a period of 12 months that these arrangements are not working satisfactorily and persons whose extradition is fully justified can evade the law, the Government will bring forward revised proposals to deal with such a situation.

Finally, before and since the 1987 Act was passed there has been considerable concern about the position of some people who are wanted for things that happened many years ago and who would not have been extraditable but for the Act. To meet this concern we have included in the Bill a provision on lapse of time, the effect of which will be as follows. A person whose extradition is sought will be able to apply to the High Court to have his or her extradition refused on the ground that, by reason of the passage of time since he or she is alleged to have committed the offence, it would, having regard to all the circumstances, be unjust, oppressive or invidious to extradite him or her.

I want to make it clear that the mere passage of time itself will not constitute grounds for refusal of extradition. There will also have to be particular circumstances which will make it unjust, oppressive or invidious to extradite the person.

The question of unfairness by reason of lapse of time has already arisen in the courts in a few extradition cases and the provision in the Bill is in keeping with the approach taken in these cases. The provision itself will clarify what the position is and will provide a reasonable safeguard for the quite exceptional case where the interests of justice would suggest that extradition should not be granted because of lapse of time and special circumstances.

To sum up, therefore, in the new situation that will arise there will be the following new safeguards. The Attorney General will have to be of the opinion that there is a clear intention to prosecute founded on the existence of sufficient evidence. The rule of specialty will ensure that as a general principle persons can only be tried for the offence for which they are extradited, and any additional charges could only proceed if our authorities agreed. There will be a provision which will prevent an extradition when due to a lapse of time and other circumstances it would be unjust, oppressive invidious. A new regime of observation and monitoring of the operation of these arrangements will be instituted on the basis of which the Attorney General will submit an annual report to the Government.

Circumstances and developments have confronted us with a difficult decision. I fully understand that many people are troubled by the changes proposed. In a different world, a world free of international terrorism, subversion, massive shipments of deadly weapons, kidnapping and the massacre of innocent people we would all be free to consider different courses of action. As Parliamentarians, however, faced with the brutal realities that have unfolded in recent weeks we must have a concern for the safety and welfare of all the people on this island. We must demonstrate that terrorism cannot be allowed to prevail and that on this issue we cannot stand aloof. We must combine with the other countries of Europe in seeking to protect our respective populations from this constant menace to their safety and their lives. It would be foolish to think that this convention can by itself be effective in preventing further outrages. But it is part of the machinery the European countries are devising to combat terrorism and in so far as it can make any contribution we cannot stand aside and refuse to make that contribution.

By deciding to proceed with the Act, and providing it with the greatest possible safeguards, we will have closed a significant gap in relations with our European partners. The British Government is doing the same with its own legislation. I am sure the House will appreciate that this is not a decision which the Government have taken lightly.

We have looked at every aspect and carefully weighed the balance. In the end the ultimate consideration had to be what was in the best interest of the security of the state and the safety of our citizens. We cannot by anything we do or fail to do give any impression or indication that that is not our priority. Nor can we give any encouragement to anyone to believe otherwise.

This recent combination of events, the seizure of a massive consignment of arms by the French authorities, the kidnapping of John O'Grady and the slaughter at Enniskillen bring the whole question of subversive threats to the security of this State into a new and urgent focus. They place renewed emphasis on the need to use all available means at our disposal, not just to combat terrorism and subversive activity but also to demonstate clearly and unequivocally to the world our condemnation of violence in all its ugly manifestations. We are not soft on terrorism, domestic or international, and we must give a clear and unequivocal signal to that effect by ratifying the European Convention.

It has been said that the bringing into operation of the 1987 Act is largely symbolic because in fact our Courts have already decided that in regard to certain crimes the plea of political offence shall not be available to those accused of such crimes. To an extent that is true. However, in so far as it is symbolic and in so far as we are being asked by the other nations of Europe to openly join them in their attempts to defeat subversion and terrorism, then I believe we should make that declaration.

I am deeply conscious of the fact that we are a small nation in a troubled and turbulent world. Our resources are limited and the forces we can deploy from time to time against subversion and threats to our security can often be dangerously over stretched. Terrorism and subversion have now developed two new dangerous attributes; an international dimension and access to all kinds of sophisticated weapons and techniques.

All those who love this country must put her security and protection as a parliamentary democracy first and foremost and above everything else. That is the very essence of our republicanism. We must show courage and determination to resist all threats from whatever direction they emanate and we must not delude ourselves about the reality of terrorism and subversion today. The question is are we prepared to stand aside and refuse to co-operate when the countries of Europe come together and seek to combine their efforts to protect their people from terrorism and subversion. I do not think we can. Geographically we are still an island but in terms of international crime the smuggling of arms and drugs, kidnapping and the many other evils of our modern world we are no different from any other part of Europe.

Our task, therefore, as the Legislature of this sovereign independent Republic is to find a way to reconcile what might be seen as conflicting requirements. We must protect the rights and the freedom of our citizens as individuals. At the same time we must co-operate with other countries in countering and defeating international cross-border terrorism and subversion. This legislation seeks to find a basis on which the two objectives can be achieved.

What the people have to decide is do they wish in regard to the particular abhorrent crimes mentioned in the convention that it should still in future be possible for persons not to be extradited in regard to them because they claim that they were political offences.

On this point I would like Deputies to ask themselves a few simple questions. If the French Government following the recent seizure of arms on the Eksund established that that particular operation had been organised by a person living in this country and sought to have that person extradited to stand trial in France, would we be justified in refusing to extradite that person on the basis that the smuggling of that vast quantity of deadly arms was in fact a political offence?

If one of that vicious group of persons who kidnapped and mutilated John O'Grady had escaped to Britain, France, Holland or some other European country, would we be prepared to accept that they should not be returned to stand trial here because he claimed that the kidnapping was a political offence?

If one of the persons responsible for the Enniskillen massacre was arrested here, would we be justified in refusing to hand that person over to stand trial in the North of Ireland or in Britain on the basis that the Enniskillen bombing was a political offence?

Any legal historian can tell us about the time honoured tradition of countries refusing to extradite persons on the grounds of political offence. This tradition among western nations is of honourable and legitimate origin. It has been handed down to us from a time when citizens of one particular State in order to escape tyranny and oppression would flee to another. The State in which such a person sought refuge would on the grounds of highest political principle and for humanitarian reasons refuse to hand them back to be punished because of their political beliefs or activities.

But in States and communities of States where democracy is a recognised principle and where political co-operation is the norm there are other ways of rectifying political grievances and there is no excuse for any resort to violence. Closer European co-operation between democratic Governments coupled with freedom of movement between peoples had made it less and less tolerable that people normally resident in one jurisdiction should be able to avoid prosecution for acts of violence they may have committed by moving across frontiers to another jurisdiction.

We must all recognise, however, that the international scene today is very different from the one in which that principle of political refuge and asylum evolved. Modern means of transport and communication and the development of ever more deadly and sophisticated weaponry have completely transformed the situation. International terrorism is now a reality. It is possible for terrorists and instruments of terror to move quickly and freely from one jurisdiction to another.

We live in a complex, confusing and dangerous world. From what we know or suspect about some of the operations and enterprises engaged in by some countries in the international arena, it is often very difficult to identify who stands for what and where we can look for truth and justice. What we must do in the midst of all this turbulance and confusion and conflict of interests is to preserve our own standards of decency and self respect and do what is right.

We must face the reality that persons who seek to achieve their political objectives by terror, by bombing, and by kidnapping can now move freely and quickly with their means of destruction from one jurisdiction to another. They can only be prevented from inflicting horror and suffering and tragedy by international effort. We must do what we can both in our own country and in co-operation with other countries to protect our citizens from the effects of internationally based terror and subversion.

I would ask Members of the House whether they would really consider this to be a suitable time to postpone the ratification of the Convention on the Suppression of Terrorism already signed and ratified by so many other States concerned about terrorism or whether we should implement it with the safeguards set out in this Bill. To postpone the commencement of the 1987 Act now would give a wrong message about our country to the world outside. The message that this House must give is that we abhor all the different aspects of international terrorism and that we will not allow the democratic process to be threatened or undermined by it. That is what democratic government is about: and it is on that principle that I am making the proposals now before you.

In that spirit, I commend this Bill to the House.

Not everyone applauds, I may note.

Where is Síle?

I call Deputy Barrett.

We have big numbers.

I must commend the Taoiseach on so many fine aspects of his speech. I say in sincerity that I hope the 57 Members of his backbenches who spoke against extradition at their party meeting were listening carefully——

Rubbish. Do not be absolutely ridiculous.

——to some of the excellent points he made in relation to extradition.

(Interruptions.)

Deputy, please restrain yourself.

We did not interrupt the Taoiseach.

A Deputy

He did not invite interruption.

We shall listen to anybody, including Deputy Cowen, if and when he wants to speak on this Bill, without interruption.

Let us avoid personalities.

With respect, a Cheann Comhairle, Fine Gael should not be putting forward a point of view about a Fianna Fáil Parliamentary Party meeting conducted in proper fashion.

(Limerick East): It was in the newspapers, even.

I do not know what happens at Fine Gael Parliamentary Party meetings.

We are here today to discuss the Extradition (Amendment) Bill, 1987, which was given to this House two days ago without an Explanatory Memorandum and which has all the signs of having been cobbled together in a great hurry to try to calm down the revolt in the Fianna Fáil backbenches. This revolt came about as a result of the welcome decision of the Government to allow the Extradition Act, passed in 1986, to come into effect on 1 December next. The decision of the Government to allow the Extradition Act of 1987 on to the Statute Book was forced upon them because of three separate, but politically linked events — the massive arms find on the Eksund, the series of escapes by some of the O'Grady kidnappers and the massacre at Enniskillen.

Prior to these events, it was quite obvious from the activities of the Government that they had no intention whatsoever of proceeding with the Extradition Act of 1987 and this was confirmed yesterday, indeed, by Deputy Neil Blaney in the Dáil when he stated that the Taoiseach had given him an assurance that he proposed to allow the Extradition Act, 1987, to wither away. There was a well thought out, orchestrated campaign by Fianna Fáil councillors throughout the country tabling motions at council meetings calling on the Government not to proceed with this Act. We had Ministers of State and Deputies on radio and television giving clear indications that the Government did not propose to proceed with the Bill. We even had a Cabinet Minister on Radio na Gaeltachta casting grave doubts on this Act.

The Fianna Fáil opposition to the 1987 Act dates back to the debate on this legislation in December, 1986, when some of their members endeavoured to mislead the public into thinking this was the first time that extradition was being introduced into this country. Anybody who bothered to check would know that we have had extradition in this country dating back to the foundation of the State. The first time we gave a statutory base to extradition was the 1965 Act which was put through by the then Fianna Fáil Government. Indeed it is no accident that the Taoiseach is now taking this Bill and he was Minister for Justice at the time the 1965 Act was passed, which Act also enabled Ireland to ratify the 1957 Convention on Extradition.

Due to the fact that Great Britain had not ratified the 1957 Convention on Extradition, it was necessary to include Part III of the Act which applies in relation to each of the following places, namely, Northern Ireland, England and Wales, Scotland, the Isle of Man and the Channel Islands, and the Bill now before us endeavours to amend that Part of the Act. I propose to deal later with the effects of these amendments but in the meantime I should like to refer back to the debate on the Bill put through in 1986.

The Extradition Act 1987, enables Ireland to ratify the European Convention on the Suppression of Terrorism. That convention provides the basis for a common approach between the member states of the Council of Europe to the question of what does not constitute a political offence for the purposes of extradition and mutual assistance. 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. What the Extradition Act, 1987 does, therefore, is to clearly outline what does not constitute a political offence.

During the course of the debate on this Act, there was a great deal of discussion as to whether a prima facie requirement should be included. This arose as a result of some cases involving extradition to Britain or Northern Ireland which were perceived, rightly or wrongly, to have gone wrong in one way or another. It was pointed out at that time that, even if we wanted to, we could not now impose a prima facie requirement unless we were prepared to withdraw from the 1957 Convention on Extradition and to abandon the arrangements for extradition between us and countries of Continental Europe. It is true to say, however, that the position is different vis-á-vis Northern Ireland and Britain as the British Government have not yet ratified the 1957 convention and we could, therefore, change our law so as to require a prima facie case in relation to those jurisdictions. My understanding, however, is that the British Government are now preparing to ratify the 1957 Convention and are amending their law accordingly. If that is the case, it would clearly be a waste of time for us to insist on a prima facie change because as soon as the British ratify the 1957 Convention we would no longer have the option of maintaining such a requirement unless, of course, we were prepared to withdraw from the convention, but I would beg to suggest it would be unthinkable for us to take such a step.

It would appear, however, that the new Bill now published by the Government endeavours to introduce prima facie by the back door as a result of the obligations imposed on the Attorney General under section 44 (b) of the Bill. In saying this I recognise, of course, that warrants for the return of fugitives should not be sought unless each case is examined at a high 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. The then Minister for Justice, Deputy Dukes, recognised that there had been some problems in our dealings with the UK in the context of extradition.

During the course of the debate on the 1986 Bill, he informed the House that a tightening up of the administrative arrangements had been agreed whereby 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.

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. He informed us also that the British authorities had also agreed an addition to this arrangement, that is, in all cases where a warrant is sent to this jurisdiction for backing that the British Attorney General would send to our Attorney General, through diplomatic channels, a confirmatory note to the effect that he, that is, the British Attorney General, has satisfied himself that the relevant prosecuting authorities have complied with the arrangements set out above.

I would like to ask the Taoiseach now if, in fact, these arrangements have worked satisfactorily, or if it is the case that his Government did absolutely nothing to bring about the implementation of these arrangements. If these new arrangements did work satisfactorily, what do we need this new legislation for?

The Extradition (Amendment) Bill, 1987, has, as I have said before, all the signs of something that was cobbled together in a big hurry. It is badly drafted and if it manages to pass the Second Stage I can assure the Taoiseach that we shall be proposing many amendments in order to amend the many dangerous provisions contained in the Bill. Despite what the Taoiseach might threaten us with, we will be endeavouring to take away from the Attorney General the powers conferred on him in this legislation.

It is a very dangerous principle that a political figure such as the Attorney General, who is appointed by the Taoiseach and serves for the term of the Government, should be put in such a position as this legislation proposes to do. Whether we like it or not, there will be concern that political pressure could be used on the Attorney General who, after all, is appointed as the legal adviser to the Government and not in a judicial role as this legislation proposes, to make a decision on a warrant one way or the other depending on the circumstances at the time. This is a very dangerous position to place any Attorney General in and something that my party will fight against through all Stages of this Bill.

Section 2 of the Bill amends Part III of the 1965 Act by the insertion of new sections after section 44. The new section 44A provides that a warrant for the arrest of a person accused of an offence under the law of one of the neighbouring jurisdictions shall not be endorsed for execution if the Attorney General so directs. This presumably implies that each and every warrant be referred to the Attorney General so that he and he alone shall decide whether the warrant is to be endorsed for execution. As I have said before, this is something which we on this side of the house are totally opposed to and will endeavour to have changed come what may.

The new section 44B provides that the Attorney General shall give a direction not to endorse the warrant unless he is of the opinion, having considered such information as he deems appropriate, that there is a clear intention to prosecute the person concerned, or in the case of a prosecution already begun to continue the prosecutions and that such intention is founded on the existence of sufficient evidence. I note that the Explanatory Memorandum sets out to explain what is meant by sufficient evidence when it states that the expression of sufficient evidence refers to evidence sufficient to justify the institution or continuation, as the case may be, of criminal proceedings.

There are a number of things I would like clarified in this particular section. How exactly does the Attorney General form an opinion? What sort of information is he likely to deem appropriate? Why was the explanation given in the Explanatory Memorandum on sufficient evidence not included in the Bill itself? The Bill simply says that such intention is founded on the existence of sufficient evidence. Surely, this could be read in many different ways? The Explanatory Memorandum would appear to impose on the Attorney General an obligation to receive evidence sufficient to justify the institution or continuation, as the case may be, of criminal proceedings. Does this mean that he will have to receive a book of evidence and also, does he have to familiarise himself with the laws of the Isle of Man, the Channel Islands, Scotland, England, Wales and Northern Ireland? This is some obligation to impose on any Irish Attorney General. Will this result in long delays before a decision is taken as to whether a warrant will be endorsed? Can the Attorney General take weeks or, indeed months, before deciding that he has sufficient evidence or, that he can form an opinion, or that he has received information as he deems appropriate? This section would appear to be extremely badly drafted. It is something we will certainly not accept on this side of the House.

As I read the new section, 44C, this could cause enormous problems. I could envisage situations arising in the future where the Attorney General would be summoned to a court to explain why in a particular case he decided to endorse a warrant and could be forced to explain to the court on what grounds his decision was made. Surely, this would be a very unsatisfactory situation. It is something we will be giving a lot of consideration to on Committee Stage.

I would like now briefly to return to the proposed amendment to section 44D. Included in this section is a provision enabling a court to discharge an order for a person's extradition where, by reason of the lapse of time since the commission of the offence specified in the warrant, or conviction, it would, having regard to all the circumstances, be unjust, oppressive or invidious to make an order to deliver him up under section 47. While I appreciate that this would be a matter for, presumably, the High Court to decide, perhaps the Taoiseach when replying would explain why it was decided to include this provision in this legislation, particularly, when it could involve serious crimes having been committed in the past?

Section 4 deals with reforms of certain functions of the Attorney General. Subsection (1) enables the Attorney General to direct the Director of Public Prosecutions, or an officer, being either a barrister or a solicitor of the Attorney General designated by him, to perform his functions under the new sections 44A and 44B during a period of illness or absence of the Attorney General. Does absence mean absence as a result of holidays or absence out of the country on official business or, simply absence from his office? Could the Taoiseach when replying to Second Stage expand a bit on what is meant by absence in this section?

Subsection 2 enables the Attorney General to revoke a direction under the section. Does this mean to revoke a direction to act on his behalf or what?

Section 5 of this Bill sets out the arrangements for the Attorney General to report to the Government on a yearly basis. Here again we have serious implications for the Office of the Attorney General as he will now be under scrutiny by his colleagues in Cabinet on a yearly basis and could find himself being influenced in future decisions as a result of the discussions that may take place at such Cabinet meetings.

The Attorney General does not have to report to the Government on other aspects of his work, so why then should he be obliged in relation to this Bill to be placed in such a difficult position? The Taoiseach in his reply should explain fully the reasons for section 5 of this Bill and, again, this is another area that we will be considering very carefully on Committee Stage.

The Fine Gael Party recognise, and did recognise in the past, the need for safeguards in respect of the procedures relating to extradition. As I have said before, safeguards were put in place during our term in Government, but obviously they were never acted on by the present Government. Why was this not done? The need for this legislation is very questionable, but the proposal to place the Attorney General in a judicial position is just not acceptable to Fine Gael, and despite what threats come from the Taoiseach, we will on Committee Stage be endeavouring to take away these powers from the Attorney General and will be seeking to have them transferred to the Director of Public Prosecutions where we feel they properly lie. It cannot be repeated too often that it is wrong to place a political figure, such as the Attorney General, in the position that this Bill proposes to do, and I hope that other parties in this House will join with us in seeking to have a stop put to this.

Finally, advice given to me suggests that this Bill could be unconstitutional and for this reason I ask the Taoiseach whether, if by any chance the Bill does pass into law, the Government will be requesting the President to refer the Bill to the Supreme Court for consideration? I await with interest the comments of the Taoiseach when he is replying to the Second Stage debate on this Bill.

The position of the Progressive Democrats is that we totally and unequivocally support the concept and practice of workable extradition for serious criminal offences between civilised and democratic nations. It does not arise so far as totalitarian countries are concerned. We unreservedly welcome the coming into effect at midnight on Monday next of the Act which leads to Ireland's ratification of the European Convention on the Suppression of Terrorism, 1979. This country above all others in Europe should be glad of an international framework for the suppression of terrorism because the people of this island are the principal sufferers from terrorism in Europe today.

It seems to us that following the coming into operation of the 1987 Act, the time has come for an examination in depth of our complicated and frequently anomalous laws relating to extradition. Ideally, this examination should be carried out over a period of several months without time pressures and preferably without emotional pressures either, if that were possible but that seems unlikely at present. We have long since ratified the 1957 European Convention on extradition. The United Kingdom has not yet ratified that Convention but its Government has introduced legislation at Westminster to lead to its ratification. When Britain has ratified that convention we should then take steps to regularise and normalise our extradition relations with them and with Northern Ireland. As well as being the most anomalous they are also the most sensitive of our extradition arrangements.

At the moment extradition arrangements between Ireland, Britain and Northern Ireland arise out of the original provisions of the Petty Sessions (Ireland) Act, 1851. There was no legislation by the Oireachtas on this whole difficult area until the passage here of the Extradition Act, 1965. For some reason that I cannot fathom except that perhaps of convenience and long practice, part III of the 1965 Act substantially re-enacted the arrangements set out in the Petty Sessions Act, 1851, with only one significant amendment arising out of a court case against the commissioner in the previous year when the Supreme Court found that one of the provisions of the 1851 Act was unconstitutional.

The Petty Sessions Act, 1851, was passed in Westminster at a time when the former United Kingdom of these islands was in existence. It regulated the transfer of prisoners and defendants as between the different sub-jurisdictions of the then United Kingdom, much as someone would be moved from Scotland to England today. It did not deal with the question of extradition to and from foreign countries. It assumed, as was then the case, that Ireland was but another sub-jurisdiction within the jurisdiction of the then United Kingdom.

The 1851 system, as was substantially re-enacted in Part III of the 1965 Act, was appropriate only to the internal movement of defendants within the one jurisdiction. I am baffled as to why the Oireachtas decided 44 years after our independence, not to assert our independence and our sovereignty but largely to retain procedures appropriate to our membership of the former United Kingdom.

The 1965 Act has, in Part II, an extradition procedure of a normal kind based on the 1957 Convention for every country in the world except one. In Part II we recognise the sovereignty of every other country on the basis that they recognise our sovereignty. In that way we assert and enhance our own sovereignty.

In Part III, however, we do not look on the present United Kingdom as an independent foreign country at all; rather do we regard it as some kind of associated jurisdiction with a common sovereignty. We do not, in Part III, assert our own sovereignty vis-á-vis the present United Kingdom and therein, I believe, lies the root of many of our problems in the extradition field.

Correspondingly, the present United Kingdom does not look on its arrangements with us as being a true extradition arrangement with an independent sovereign country. Even the title of its corresponding legislation in 1965 in Westminster does not refer to extradition. It is called simply the Backing of Warrants (Republic of Ireland) Act, 1965. In the law on the matter the arrangements as between Britain and Ireland arising out of this long historical background are described by Dr. Michael Forde, in his recently published book, as more properly called rendition rather than extradition because it is rendition within what is essentially the one sovereignty. Our Extradition Act, 1987, coming into force next Monday night does not materially affect that position. Its primary purpose is to ratify the European Convention on the Suppression of Terrorism.

The Act of 1987 passed through this House in an abnormally short period before Christmas 1986. It was introduced and passed because of an undertaking to ratify the European Convention given in Article 8 of the Anglo-Irish Agreement. The debate did not afford any opportunity for a fundamental look at our extradition law particularly vis-á-vis Britain and Northern Ireland; neither does the Bill which is before us today. Today's Bill is ostensibly designed to provide alleged safeguards in respect of persons being extradited from here to Britain or Northern Ireland.

The debate on this measure takes place under the rather short shadow cast by the Taoiseach's reported opinion that a failure by his Government to push this measure through would justify him in looking to the people for a mandate. It is suggested that the Taoiseach believes as well that the role envisaged in this legislation for his Attorney General in the law of extradition is an essential prerequisite for the survival of his Government. The Taoiseach should not imagine that he can politically browbeat a majority of the Members of this House into supporting an unjustified and arbitrary departure from the rule of law. It is not so much a reflection on the majority of the House as on the Taoiseach himself, but far more disturbing is the avowed aim of this Bill. Masquerading as a safeguard for the citizen is an unprecedented legislative essay in arbitrary, political and secret procedure. It is proposed in section 2 that the Attorney General, who holds office during the Taoiseach's pleasure and can be fired at a moment's notice without any reason being given, should have an entirely secret and unreviewable role as the judge of the sufficiency of evidence accompanying any British request for extradition.

As a safeguard this provision is illusory; there is by definition no political personage less suitable to act as an independent, impartial and objective arbiter of whether a sufficient case for extradition exists than a political appointee, removable at will by the Taoiseach, privy to the political pressures of the day on the Government and open to receive representations, not only from the master at whose pleasure he holds office, but also from political allies and, worse still, from opponents of the person whose interests are at stake. The more sensitive the case the less suitable for this particular task is the Attorney General. Why otherwise did this House in 1974 decide to take from the Office of Attorney General the responsibility for conducting criminal prosecutions in this State? Most worrying, and most obnoxious of all, this Bill has been carefully drafted to attempt to exclude from judicial review the substance of the decision entrusted to the Attorney General. A person against whom a request for extradition is made will have no order to challenge but merely a failure to make an order. There will be nothing to challenge, nothing to evaluate and nothing, where proper, to quash. The attempt is made to slam the door hard in the face of impartial judicial review or investigation is so far as this can be done by legislation.

In truth there will be no accountability in the application of what is claimed to be a valuable safeguard nor will there be any guarantee of consistency. It is left open to the Attorney General to choose in identical cases to make different inquiries and to make different decisions and nobody who is adversely affected will have any right to know in his case what inquiries were made, what evidence was considered, what adverse representations were heeded or ignored or what extraneous considerations coloured the decision made in his case.

When something happens in a court a defendant may not agree with the decision that is made but at least he knows the matters that were put before the judge or the justice. At least he was able to argue as to the truth or otherwise of what was suggested or alleged but here we have something going on in private where the man concerned, whose personal liberty is at stake, does not know what was said about him, does not know who said what about him and does not know what private political representations were made in respect of him, either on his behalf or against him. Is it right that a matter such as the liberty of an individual and the sending of him in custody into another jurisdiction for trial should be decided in open court, as has always been our tradition, before a justice or a judge, or should it be decided in private in the absence of the man concerned in an office at the back of this building with access to Deputies if they want to go and make private or secret representations either for him or against him? The answer to that is self-evident.

If one wants to abide by the rule of law, one cannot, regretfully, support the type of so-called safeguard that is the kernel of this Bill. Far from being a safeguard, we have here a proposal for what has to be a secret, and can potentially be an inconsistent, politically motivated, improperly influenced, irremediable and arbitrary determination of an issue, and that is the opposite of a safeguard.

You are joking.

What ought to be available as of right will, in practice, be indistinguishable from a privilege given out in secret. To put in place a measure which offers a refusal to extradite to one man but confirms the extradition of another without affording either of them any right to know why or how his fate was decided is the very antithesis of justice and flies in the face of the Republican values on which our Constitution is based. It is an arbitrary power and it is most definitely not the rule of law. Judged only on its own merits this measure fails but judged by the laws of our land it is repugnant to the Constitution.

There are those who argue that the powers given to the Attorney General in this Bill are just as constitutional as the powers given to the Director of Public Prosecutions in deciding whether to initiate proceedings and in deciding in which court his proceedings will be instituted. There are two reasons why I believe they are wrong in arguing that. It is long established that the issue as to whether an Irish citizen should or should not be deprived of his liberty and surrendered into the hands of another sovereign power in custody is a justifiable controversy, that is the propriety of doing it can be inquired into and reviewed by the courts. It cannot be done as an administrative act.

An example of what is an administrative act in this respect would be a preliminary arrest or charge made by a garda or a summons issued by a District Court clerk, since the passing of the Courts (No.3) Act, 1986, just a few days before Christmas last year. Prior to that, the issue of a summons by a District Court clerk was held by the courts in the Senezio case to be a judicial act. The very fact of a District Court clerk being supposed to make up his mind whether he should issue a summons was held to be judicial. This is why the previous Minister for Justice came in here in a very great hurry a few days before Christmas last year with a Bill to declare this an administrative act.

If such a minor thing as deciding whether to issue a summons in a road traffic case to be heard by the District Court is a judicial act, how can one argue that a decision on weighing up evidence in relation to the extradition of somebody in custody to a foreign country is not a judicial act? The act of issuing a summons is a trivial thing in itself. It is so trivial that it is now done by computer and this is the reason it was challenged in the Senezio case. The act of weighing up the evidence to decide whether to extradite somebody in custody to another country is an enormously important act, going to the very root of fundamental and personal liberties. The constitutional guarantee that a person cannot be deprived of his liberty save in accordance with law, precludes his permanant deprivation of liberty with a view to surrender to a foreign sovereign state, being called a matter of administration only. The Tasoisech in his speech referred to it specifically as being that. The courts will resist that attempt.

It is interesting, for someone who is a bit out of touch with the more recent developments of the past few years in the courts in their way of viewing the Constitution, to look at the supplement to the second edition of Professor Kelly's book on the Irish Constitution which was published a couple of months ago. The contents of the book are very fine but it will, I think, have permanent fame because of the learned author's decision to use that particular painting by Sir John Lavery as the cover. It says a very great deal, including a lot of what I have been trying to say during the past few years and it says it very eloquently.

It appears from the supplement, that no less than 200 cases were decided by the superior courts here in relation to different aspects of the Constitution during the past three years. This supplement had to be brought out because a book, published as recently as 1984, was seriously out of date.

The tendency in many of these cases is to find efforts to exclude the courts inquiring into things unconstitutional. In a recent case of the State (Daly) against the Minister for Agriculture where there was an effort by the Minister to exercise a power which was described as unreviewable to fire a veterinary surgeon who was working in the Department and where the Minister refused to give any reasons and where he operated in secret, this was found to be unconstitutional. Is the exercise of that power by the Minister for Agriculture essentially different from what the Attorney General is now going to exercise in his office in Merrion Street? It is not except that the Attorney General is going to exercise more serious powers and, therefore, powers that are even more open to question by the courts. They will be even more anxious to review these because he is going to make a decision on whether to send out of this country in custody citizens who may never see this country again for all we know. Similarly, the power of the Minister for Posts and Telegraphs, as he then was, to make an order under section 31 was held to be a reviewable power and the Minister had to account for it.

A minor function that was exercised by the Attorney General in the past was the function of issuing what is called his fiat to allow citizens to sue the State. Even the giving of a certificate to allow someone to sue the State was held to be unconstitutional because the courts felt that was a judicial act and only they should decide whether someone should be deprived of the right to approach the courts. These are minor powers compared with the powers in this Bill. The decision to deliver into custody an Irish citizen to a foreign state must amount to an administration of justice and must and will be regarded by the courts as a justiciable controversy.

Secondly, the decision of the DPP to initiate a prosecution, or in some cases give his consent to a prosecution, is not governed by statutory pre-conditions. He is free to prosecute or not as he sees fit. However, in the proposed procedure the jurisdiction of the District Court to direct what we will call a Part III extradition to Britain or Northern Ireland is based on statutory preconditions as follows: (a) the existence of a valid warrant, (b) the valid endorsement of the warrant (c) the failure of the Attorney General to give a direction under section 44B that the warrant be not endorsed — that sounds a strange way of putting it but that is the way it is expressed in the Bill — (d) the failure of the Attorney General, having considered such information as he deems appropriate, to form an opinion that a definite intention to prosecute both exists and is based on sufficient evidence. It follows that a statutory precondition to the District Court's jurisdiction to extradite a person to Britain is that the Attorney General must form an opinion that the evidence available in Britain to prosecute is sufficient. That opinion is essentially indistinguishable in character from the opinion which a district justice must form in a preliminary examination under the Criminal Procedure Act, 1967 that: "there is a sufficient case to put the accused on trial on indictment for an offence."

If the district justice's function under the 1967 Act is a judicial function — it has been found to be that in Costello against the DPP, 1984 Irish Reports — and if his opinion on the sufficiency of the evidence presented to him is a necessary statutory precondition to found or establish the Circuit Court's jurisdiction, how can it be argued that the opinion to be formed by the Attorney General here as to the sufficiency of the evidence available is not a judicial evaluation? In my view it assuredly is. Nor is it permissible to remove from a judge's functional role some of the constituent parts or the justiciable controversy on which he is adjudicating. To take an analogy, I ask the House to ask itself whether you could ask a judge to sentence a person whom he must presume to be guilty by reason of another person's evaluation of the case. Would that be regarded in this or any other civilised country as a judicial trial? In this instance the district justice in the District Court is asked to make the estradition order. One of the statutory prerequisites or preconditions is that the Attorney General who is not before him and in respect of whom he does not know what evidence he has heard, or anything else, up in Merrion Street, sitting in private, has to evaluate the evidence and make the decision and then he says: "You can go ahead now. I am not giving my certificate. It is therefore, open to you to go ahead and extradite this man in custody to Britain or Northern Ireland." I suggest you cannot separate the judicial function in that way.

The district justice has no judicial function at that point.

Somebody else is now being given a judicial function and he is asked to carry out the sentence.

The Deputy said that you cannot separate the judicial function. He is mistaken to believe that the district justice has any judicial function at that point.

We will see if he is mistaken.

It seems to me an unpermissible invasion of the judicial domain. An analogy is that one body finds somebody guilty on evidence that a judge does not hear about and then the defendant is brought along before that judge and the body says. "Somebody else has found him guilty. We will not tell you what the facts are but you send him in custody to another country." Can you imagine the length to which the courts will go to resist this kind of invasion of the judicial domain? Can you not imagine the degree of litigation that is likely to give rise to? One of the disturbing aspects of it is that if some part of this Bill — assuming it is passed — is found to be unconstitutional it is — or will be if it is passed — entirely woven into the Part III procedure regarding warrants. I am advised on the basis of recent cases, in particular Maher's case, that the courts would have to not just read the existing Part III provisions of the 1965 Act which have not been found unconstitutional on their own, but they will have to read them in conjunction with the provisions of this Bill, if passed. If any one of these provisions goes down it brings all the Part III provisions down with it.

The Taoiseach shakes his head and says I am wrong. Unhappily, I am afraid I am not wrong. As well as the Maher case there are several others which I can give him, in particular re Evelyn Doyle, an infant. On 21 December 1955 the Supreme Court said in declaring invalid most of section 10 (1) (d) and (e) of the Children Act 1941:

It is unfortunate that this declaration involves the invalidation of provisions which if they stood alone are quite in accord with the Constitution. They are, however, so inextricably entangled with the portion which we find repugnant to the Constitution that there is no way of avoiding that result.

That decision was followed in Maher's case in 1973Irish Reports where the Road Traffic Act, 1968 had declared that a certificate of blood alcohol content would be conclusive evidence as to the matter certified. The Supreme Court struck down the word “conclusive”. The State then submitted that the remainder of it should stand. The Supreme Court said through Chief Justice Fitzgerald that that could not be done; it was the legislature's intention to have “conclusive” as an important part of the whole procedure and, therefore, even though only the word “conclusive” was found wrong, the entire procedure fell.

Some Deputies may remember that there were no prosecutions for drunk driving for three, four or five months at the time, and that is what is going to happen here. The existing Part III provisions will come down with this if this is found unconstitutional and then we will be in the unhappy position of having no extradition provisions or procedure at all in Part III relating to Britain and Northern Ireland. The dangers inherent in this are very considerable. What purports to be a safeguard may, unfortunately, turn out not to be that at all. We may end up first of all without safeguards and, secondly, without possibly an extradition procedure unless, as I suggested earlier, the whole thing is looked at in a global way after the British ratify the Extradition Convention of 1957.

In conclusion I want to make a specific suggestion to the Government which, I would hope, they would consider seriously but, unfortunately, going on what the Taoiseach said last night, apparently they are not open to any suggestions. As far as the Government are concerned this is a make or break situation. I think it is appalling if that is the way they look at it.

It is, and changeable too. It is only putting the frighteners on them.

We might have some revisions or amendments to this in the same way as the primary education proposal has tended to get itself amended over the last week or two.

Is the Deputy putting it forward in good faith?

I am putting it forward in good faith. I am simply concerned that, before any suggestion or amendment is mentioned, it is apparently shot down on the basis that if the rather unfortunate provision in regard to the Attorney General is not carried into effect, the Government will call a general election. My suggestion with regard to safeguards is that it would be very much better to withdraw the non-judicial form of decision making in the judicial domain by the Attorney General and substitute a procedure before a court, as is the norm in Part II and everywhere else. I have been looking at how other relevant countries have dealt with this problem in recent times. The relevant countries are Britain and Ireland because the Bill deals only with Britain and Ireland. It does not deal with any of the other countries.

In recent years both Britain and Ireland have entered into extradition agreements with the United States of America. In each case there is contained within the extradition agreement with the United States of America a clause in simple terms establishing the need so far as requests from Ireland or Britain are concerned to establish before an American court what they call probable cause. It is not the complicated procedure of full prima facie return for trial, or the equivalent, with the book of evidence and the right to cross-examine witnesses. Ireland and Britain have agreed, to it. Therefore, I take it that neither country has any fundamental objection to a procedure of this kind. It does not cause any complications and it is apparently in one form or another in all American and British treaties. I feel they are estopped from saying they object to it. It is reasonable. I will read from Article VIII of the Treaty on Extradition between Ireland and the United States of America, signed in Washington in 1983 and ratified in this House only last year because an error was made about its ratification but, nonetheless in force now as law.

Article VIII.4. says:

When the request for extradition relates to a person who has not been convicted, it shall also be supported:

(a) by the original or an authenticated copy of the warrant of arrest...

(b) by the original or an authenticated copy of the complaint, information or indictment; and

(c) in the case of a request emanating from Ireland, by a statement of facts, by way of affidavit or statutory declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it.

I do not see why something on those lines, which had already been entered into by Ireland and Britain and been worked successfully by both could not be satisfactory from both points of view.

From the British point of view, it is clearly workable and they cannot object to it. From the Irish point of view it gives a reasonable level of safeguard. The guarantee of the reasonable level of safeguard is that the Americans have worked this for many years and they have found that it gives a reasonable level of safeguard. It does not create some hugely difficult procedure in court where you have to bring a whole string of witnesses. It is one simple document, an affidavit or a statutory declaration. The defendant could not in the circumstances have more right here than he has in the United States to seek to have the witnesses brought. The procedure is satisfactory. The matter is dealt with openly in a court. The statutory declaration of affidavit can be read out in court. A copy can be given to the defendant or the man it is sought to extradite. He can read it. He can make a statement in open public court that paragraph (b) is untrue, or paragraph (d) is not fully accurate, or that he contests paragraph (f). At least he knows what is being said about him. He can address the district justice and can at least let the public know via the press what his position is.

It seems to be reasonable. The Americans have worked it for years and the Irish and the British work it with them. Why cannot the Irish work it with the British? Is it not better that he would have those sort of fundamental democratic rights, first to know what is alleged against him by Britain in a court, so that he can make a reply to it, or give a comment, or give an interview about it and have his barristers and solicitors contest it and argue about it, rather than have this secret procedure in a room in Merrion Street where the man concerned does not know what is being said about him, has no opportunity to comment on it or contradict any of it, but finds that no direction is given. I think that is grossly unsatisfactory.

Deputy McDowell, who is much better qualified than I to speak on the multitudinous case law on these points — and there are a great many precisely analogous to this in recent years; it amazes me when I read this book — will deal with these in detail. I think there is an extremely compelling case not to proceed with this and that the courts will not allow it. If the courts strike it down, if they find it is not administrative but judicial, then it brings down the whole extradition procedure between here and Britain. If the Government were to prevail in their view that this is a purely administrative act then it cannot of its nature be a safeguard, because an administrative act just rubberstamps something else. If the Attorney General is exercising discretion, he could be providing a safeguard, but if he is exercising discretion or judgment he is performing a judicial act. They cannot have it both ways. I believe that is where they are caught.

I believe the suggestion we have made in regard to the use of the article, or something very close to it, in the Irish-US Treaty of 1983 may well be a solution that will satisfy both sides.

The Taoiseach deals in his speech with the question of a prima facie case. Unfortunately the conclusions which he draws are based on a misconception of the law as I believe it to be and the effect of the 1957 Convention. He is correct when he says that a general prima facie requirement cannot now be made without denouncing the 1957 Convention, but he is not correct if he implies that the Convention precludes Ireland from requiring production of any standard of evidence, prima facie or otherwise, as a pre-condition for extraditing our own nationals.

Article 6 of the Convention allows Ireland to refuse to extradite its nationals but requires us instead to prosecute any national whom we refuse to extradite. When we became party to the Convention we specified a definition of Irish nationals for the purpose of Article 6. We also provided in sections 14 and 38 of the 1965 Act for Ireland to exercise its rights under Article 6. It is worth reading section 14 again because many of us may well have forgotten it. Section 14 of the Extradition Act, 1965, states:

Extradition shall not be granted where a person claimed is a citizen of Ireland, unless the relevant extradition provisions otherwise provide.

Basically an Irish citizen cannot be extradited from Ireland unless relevant extradition provisions otherwise provide.

Section 22 of the 1965 Act expressly authorised Ireland to conclude extradition treaties which require the other country to produce evidence. Section 22 states:

Where the relevant extradition provisions require the production by the requesting country of evidence as to the commission by the person claimed of the offence for which extradition is requested, extradition shall not be granted unless sufficient evidence is produced to satisfy the requirement.

This was certainly meant to be a matter for the courts to decide. There is no way that section envisaged someone other than the courts deciding whether or not there was a sufficiency of evidence.

In these circumstances it is simply wrong to conclude that Ireland may decide not to extradite its own nationals unless evidence is produced. The right of Ireland to choose under Article 6 whether to extradite its own nationals or prosecute them is a right to be exercised in accordance with Irish law. It is open to Ireland to provide by its domestic laws when and in what circumstances we will invoke Article 6 in favour of our own nationals and to provide evidential grounds as part of that decision. It is within our rights to choose how we will use Article 6 and it is wrong to suggest that a law requiring the production of evidence as a pre-condition for extraditing Irish nationals would be in breach of the Convention.

I want to begin my contribution to this debate by outlining my party's attitude to the principle of extradition. We support the principle — we regard it as an important mechanism, appropriate to the relations between civilised countries, in the ongoing battle against crime.

Without extradition, many situations would arise where fugitives would be able to escape justice, and that in itself has to be seen as unacceptable. I know better than most the injustice that has arisen in many parts of the world because criminals — some of them mass murderers — were able to find refuge in counties whose laws and whose administration conspired often to thwart efforts to bring those criminals to justice through the medium of extradition.

In recent years, of course, we have seen a new development. The growth of international terrorism has been a frightening phenomenon, and one that has affected most countries in Europe and in other parts of the world.

We have all seen the carnage that has been caused by bombs and by sophisticated weapons, not only in our own country, but also on our television screens, sometimes on a nightly basis, from all around the world. We know that this kind of terrorism is financed and supported by an international network of resources. In the necessary battle against that network, extradition is — and will remain for the future — a vital and essential weapon.

Our opposition to this Bill is not intended to convey any opposition to the ratification of the European Convention on the Suppression of Terrorism by way of the Act passed in December 1986. The provisions of that Act will come into operation on 1 December. We welcome the operation of its provisions which are designed to assist in the suppression of terrorism. We do not believe that terrorists' acts should be considered by our law and courts to be political offences, entitling terrorists thereby to have a haven in this country. In so far as the 1987 Act provides that certain specified offences shall never be regarded as political, we wholly endorse it.

We are legislators in a civilised society. Every time we agree to place people before the hazards of the law, we agree, here in this House, on the safeguards that are necessary. We do so in relation to our domestic laws all the time. We include rights of appeal in legislation. We construct mechanisms to ensure that individuals will at all times be assured that justice is done in their particular case and is seen to be done.

We are especially careful in any situation where, in the interests of combating crime or subversion, we agree, however reluctantly, to place some constraint or other on the rights of individuals. We take care to ensure that the constraint we place is the absolute minimum that is consistent with the struggle against crime.

I recall, for instance, the long debates that took place in this House not so long ago on the Criminal Justice Act, and the lengths to which we went to satisfy ourselves that that Act was absolutely necessary in the context of its times. Even then, I recall the assurances that we sought and were given about the additional safeguards that would be put in place before sections of that Act were brought into play.

So our attitude as legislators is that in matters of this kind we try to approach the issues that arise with a concern for civil liberties in the forefront of our minds. Our attitude to the question of building civil libertarian safeguards into any measure affecting the freedom of the individual is that we want those safeguards to pass critical scrutiny. We want them to stand up to any test to which they will be subjected and we want them to operate in a way that enables the whole of the legislation to operate smoothly and effectively.

The Bill before us passes none of those tests. It is a shoddy, irresponsible piece of work, designed as a "snow-job" for appeasing reckless backbenchers. It is clearly a compromise job, attempting to satisfy the Fianna Fáil backbenchers on the one hand and the British authorities on the other hand. In the event it appears to have satisfied neither. The comments of the Fianna Fáil backbenchers have been clear enough: they do not like it and are unhappy about it. We have seen statements from British Ministers and the British authorities indicating that they also are commenting adversely. It would have well behoved British Ministers and British authorities to have refrained from any comment on this matter while it was being debated in this House. It is after all essentially an internal matter to the Oireachtas and I would have thought that comments of the nature which have been coming from British sources would have been more appropriately deferred. It constitutes an unwarranted intrusion.

The Bill does not introduce adequate safeguards to protect the civil and human rights that extradition places in jeopardy. It is so badly drawn that it is capable of disrupting the whole extradition process, even in situations where well-established procedures and safeguards have been complied with. I believe it is almost inevitable that the first person extradited under this legislation, if it ever reaches the Statute Book, would initiate a lengthy and tortuous constitutional action against the authorities who would be driven by this Bill.

We will, of course, be dealing with all of those issues in detail in the course of the debate, and I intend to comment on each of the issues that arise in some detail in the course of my remarks. I want initially, however, to say a few words about the legislative background to the whole issue. The basis for extradition law is the 1965 Act——

On a point of order, is it normal that an original script should be the method of delivering a speech to the House?

We have just had three of them so far.

I should like to tell Deputy Lawlor that that is not a point of order.

I was saying that the basis for extradition law is the 1965 Act which this Bill seeks to amend.

(Interruptions.)

Deputy Lawlor caused trouble enough last night.

The legal profession have a vested interest.

The Deputy caused enough trouble last night with his activities and he should allow me to continue my speech without interruption.

If Deputy Lawlor is not careful we will charge him £100 for being in this House.

On a point of order, I did not intend to intervene but, speaking for myself and other Members, I am getting tired, every time a Member who happens to belong to the legal profession is making a contribution, of hearing Members of the Fianna Fáil Party referring to vested interests under their breath.

Deputy Shatter should resume his seat; he is being disorderly. I will have to ask him to leave the House if he does not obey the Chair.

Deputy Lawlor should be asked to withdraw his gratuitous insult.

Deputy Shatter should resume his seat; he is being disorderly.

With all due respect, Deputy Lawlor's remark was a pretty dirty one. Deputy Lawlor was being disorderly and the Chair did not do anything to stop him.

Deputy Lawlor——

Deputy Shatter is being disorderly. One would expect from one who pontificates on propriety that he would practise what he preaches and allow the Business of the House to proceed. Deputy Taylor should be allowed to continue, without interruption.

I would have thought that Deputy Lawlor would be better advised to try to provide some sand to dust the icy roads we will be faced with this winter when voting at the meeting of Dublin County Council yesterday than being disruptive in the House during an important debate.

Deputy Taylor is foolishly allowing himself to be diverted from his contribution.

I bow to the Chair's ruling; the Chair is absolutely correct in that remark. The basis for extradition law is the 1965 Act, which this Bill seeks to amend. That Act provides for extradition in two ways. Part II of the Act covers extradition generally and Part III covers extradition between this country and the UK. Although Part III is, therefore, of more immediate relevance to the debate in hand it is interesting and important to note some of the provisions in Part II.

Part II applies to any country with which we have an extradition agreement, except the UK. When agreements have been made, the Act can be applied by Government Order. Under Part II, extraditions can only be granted in respect of crimes carrying a penalty of a year in jail or more, or where sentences of at least four months have already been passed.

Also under Part II extradition may not be granted in the following circumstances:

—in respect of a political offence, or offences connected with a political offence;

—in respect of offences under military law which are not offences under ordinary criminal law;

—for revenue offences;

—where the offence for which extradition was requested was committed in Ireland, or where a prosecution is pending in Ireland;

—where the statute of limitations applies;

—where the offence is punishable by death in the applicant country, but not here, unless the Minister for Justice is satisfied that the death penalty will not be carried out;

—where final judgment has already been passed on the person in Ireland or a third country in respect of the same offence.

In addition, extradition cannot be granted unless the law of the applicant country, or the extradition agreement, provides that the person extradited will not be proceeded against for any offence committed prior to his surrender. The exceptions to this are if the Minister agrees, and where the person extradited is acquitted of the offence, and fails to take a reasonable opportunity to leave the jurisdiction. The same rules apply in cases of re-extradition to third countries. And we apply the same rules to people extradited to this country.

I should like to remind the House that in particular, section 22 of Part II includes a prima facie requirement, “where the relevant extradition provisions require”. Consideration of the issue of prima facie is not therefore new — it has been a feature of our law, though not of all extradition agreements, for the last 23 years.

Finally, extradition under Part II cannot be granted unless the application is supported by relevant documentation. This includes a copy of the conviction or warrant; a statement of each offence for which extradition is sought, specifying the time and place it was committed, its legal description and reference to the relevant legal provisions of the requesting country; a statement of the relevant law in the requesting country; an accurate description of the person, with all identifying information; and any other document required under the relevant extradition provisions.

All this information must be furnished to the Minister, and he then asks a district justice to issue a warrant. On arrest, the person concerned is brought before a district justice. The DJ, if he is satisfied that the law as outlined has been complied with, commits the person to prison until the Minister orders his extradition. After all this has happened, nobody can be extradited until 15 days elapse after his committal to prison. He must also be informed of his rights under habeas corpus.

Finally, Part II gives the Minister a general power of release, if he is satisfied that the extradition of any person would not be in accordance with the Act or with the relevant extradition agreement, or if he is satisfied that the request for extradition is not being proceeded with. These are the main provisions of Part II of the Act, which deals with extradition agreements other than in the case of the UK. Extradition to the UK is dealt with separately under Part III.

Now, it has been said before that our extradition arrangements in so far as the UK is concerned have always been very liberal, and this is true. In fact, it is so true that frankly I find it difficult to understand the reports that have been emanating from the Fianna Fáil Party rooms in recent days on this issue. If we are to believe them, there are those in the Fianna Fáil Party who have voted throughout their internal debate against the introduction of any form of extradition to the UK. When these so-called safeguards were introduced, at least a handful of Fianna Fáil Deputies voted against them on the basis that they would not yield an inch on the issue of principle involved and, of course, we have heard the issue of extradition described as "betrayal" here in the House.

It is hard to understand what world these people have been living in for the past 20 years. We have been extraditing fugitives ever since 1965, on the basis of law introduced by the present Taoiseach when he was Minister for Justice — a member of a Government which also, by the way, included Deputy Blaney. As I have said, we have been extraditing under arrangements which have been more liberal than those applied to other countries. We now apparently want to make those arrangements less liberal, but we are not going to be asked to introduce any meaningful safeguards. Instead, we are presented with a set of arrangements which are slipshod, underhand, and positively dangerous. It is important to examine the provisions of the legislation before us in the context of the overall Act they seek to amend.

The principal changes proposed are to section 44 of the 1965 Act. That section gives to the Minister for Justice, or the High Court, if the Minister refers the question to them, the power to refuse to endorse an extradition warrant. He may use that power in specific circumstances — specifically, if he is of opinion that the warrant was issued in connection with a political offence, or an offence under military law, or a revenue offence.

These powers exist; they are part of our law and have been since 1965. They reside at the discretion of the Minister for Justice or the High Court. Of course, the definition of a political offence has been altered, first by the McGlinchey judgment, and now by the 1987 Act which will come into effect next Tuesday, but that does not alter the fact that the power to refuse to endorse a warrant already exists. So why, we must ask, is it now proposed to extend a similar power to a third person expecially when the third person proposed is politically appointed and there is no requirement that he or she should have any judicial background? Why, above all, is the decision to extend this power to a third person now to be made an issue of confidence? There is something ludicrous about all of this.

Although I have said that the function of the Bill is to extend a similar power — the power to stop a warrant — to a third person, the circumstances in which that third person can exercise that power are somewhat different. It is when one considers those circumstances that the main defects of this Bill become obvious.

The central characteristic of Part III of the 1965 Act is the endorsements of warrants or backing of warrants procedure set out in section 43 of the Act. That section requires the commissioner of the Garda to back a warrant emanating from the United Kingdom or Northern Ireland. The commissioner is bound to back such a warrant. The terms of the section leave no doubt that it is mandatory on the commissioner. The only dilution of this mandatory duty on the commissioner under section 43 is that set out in section 44 wherein the Minister for Justice or the High Court may direct that a warrant shall not be endorsed for the reasons set out in section 44 (2). It is not at all clear that sections 43 and 44 of the 1965 Act provide a workable procedure which will secure, independently of the separate section 50 procedure, the section dealing with the non-endorsement of warrants which fall to the criteria set out in section 44 (2).

As I understand it, there is no known case of a direction ever having been given in all those years by the Minister or the High Court under section 44, not even one. Normally what happened was that in the case of political offences the suspected fugitive applied to the High Court under section 50 for his release on the grounds set out in that section. Presumably the reason no directions have been given pursuant to section 44 is that the commissioner for the time being has not, and does not, refer warrants to the Minister for directions under the section. The commissioner would not be able to say from a perusal of the warrant whether it disclosed a political or non-political offence because the offence disclosed on the face of the warrant is simply an offence known to the criminal law. It is only on examining motivation for the offence that one can say whether it is political.

If warrants have not been referred to the Minister under the present section, what warrants are intended to be caught under the new section 44A. As drafted, that section does not require that any particular warrants, or any category of warrants, should be submitted by the commissioner to the Attorney General for his direction pursuant to these new sections.

How do we know that the Attorney General's direction will be sought in every case, or in any case? The section does not require or direct that there should be any reference by the commissioner to the Attorney General and such a reference to the Attorney General is not required before the commissioner endorses a warrant, as is his duty under section 43. Is it contemplated that the commissioner is to have a discretion in certain cases to seek the Attorney General's direction? If so, we could arrive at a situation where the commissioner's initial view of the adequacy of evidence would, in effect, be substituted for that of the Attorney General.

One of the central flaws in the proposed new section 44A is that it seems warrants may continue to be endorsed by the commissioner without any reference whatsoever to the Attorney General. This is a fundamental flaw in the proposed certification procedure in that the obtaining of the Attorney General's opinion and the giving or refusal by him of a direction, is not mandatory in every case in which it is sought to have a warrant backed under Part III of the Act. Put in simple terms, the Attorney General can only direct or refuse to direct the non-endorsement of a warrant under the section if he is asked. There are further objections to the proposed new sections 44A, 44B, 44C and 44D which designate the Attorney General as the officer who is to form an opinion as to whether there is a clear intention to prosecute founded on the existence of sufficient evidence to give a direction that a warrant should not be endorsed on foot of the opinion.

The extradition and backing of warrants procedure in Part III of the 1965 Act, of necessity, involves infringement or curtailment of the freedom of the individual and may result in his removal from this jurisdiction and out of the protection of our courts, and such protection as is rendered by the Constitution. Is it proposed that safeguards are to be provided for an individual affected by extradition procedures? If it is proposed that, irrespective of whether these safeguards have been satisfied, any particular case should be adjudicated upon as a matter of law by the courts and not as a matter of opinion by the Attorney General. It is fundamental to our constitutional law that questions affecting the freedom of the individual are determined in the courts in accordance with procedures and criteria laid down by law. If it is proposed to provide safeguards for suspected fugitives by way of criteria laid down in a statute, then whether those criteria have been satisfied is a matter which should be determined in the judicial rather than in the political, executive or administrative domains.

Why should there be any difficulty about this? There are district justices in every county who perform this task with dedication and application every day of the week. That is their function. They have been trained to do this. They are judicial people making judicial decisions. I cannot see why what is the normal judicial task to be applied and which is devolved on those justices under the Constitution, should not have devolved on them the task of providing necessary essential safeguards to people who are sought to be extradited.

It is very difficult to understand what this proposed new section 44B is designed to accomplish. It refers to the backing of warrants sought in cases where the Attorney General is of the opinion that there is a clear intention on the part of the authorities in the requesting State to prosecute and that such intention is found on sufficient evidence. It is not clear how the Attorney General is to determine whether there is such an intention founded on sufficient evidence. Does he do this on the basis of a simple confirmation of the intention by the British authorities, or is something more than that required? If so, what is it?

There is nothing in the proposed new section 44B to suggest that our Attorney General must be satisfied on the basis of his own security of the relevant material in evidence, that there is sufficient evidence to support the intention to prosecute. If the Government intend that the section should impose an obligation on the Attorney General not only to form an opinion regarding the intention of the British authorities but also of the sufficiency of the evidence supporting their intention to prosecute, this section as drafted will not achieve that end.

The position of the Attorney General, the legal adviser to the Government, is going to be placed in is full of curiosities and anomalies. Some of these anomalies arise from the Bill directly and some from the Constitution. Under the Constitution the Attorney General is not accountable to the Dáil. He is not a member of the Government and is not, therefore, capable of being questioned about the exercise of his functions except by the Government. His functions are carried out under the protection of the Official Secrets Act. Generally speaking, this is as it should be because his principal function has always been to act as legal adviser to the Government.

What information will the Attorney General deem appropriate in order to form his opinion? Will it vary from case to case? Will he be content to read the file in one case, want sworn evidence in another and want to cross-examine witnesses in a third? Will he consult his political masters on the issue? If the Government employing him are in a minority position, will he be obliged to consult the people on whom the Government are dependent for support? In other words, if we in law leave it to an individual to decide what information he needs, are we not subjecting that individual to the possibility of intolerable political pressure before he makes up his mind?

To look at it another way, is it not likely that this will lead to a totally inconsistent approach from one case to another and indeed from one Attorney General to another? The impression may be created, when an Attorney General gives his decision, that pressures have been brought to bear on him to extradite in a certain case. That impression may well be entirely without foundation but the public will have no way of knowing that. Justice must not only be done, it must be seen to be done. That is the whole essence and basis of a public hearing in court. All courts are held in public and matters are produced but in this situation evidence would be heard behind closed doors. When that secretive element is allowed to creep in, there will be suspicion, rumour, comment and a question of libel and slander in the public mind. It is inevitable and the principles of natural justice require that when a person's liberty is at stake the matter should be open and clear.

We seek a very simple and basic safeguard. We are not talking about bringing witnesses over but about a book of evidence. That sounds like a complicated, dramatic matter but it is a simple procedure, a list of statements which people have made and signed and they can be verified on affidavit by a prosecution authority. As was pointed out by one of the law professors in UCD in an article in The Irish Times a couple of days ago, it is a very low standard of safeguard but it should be the basic safeguard below which we should not sink. He pointed out that in the McGlinchey case, the prima facie procedure would have meant his extradition and I accept that. Indeed, one could argue for a higher standard of safeguards where witnesses would be subjected to cross-examination and a case could be made for that. We do not make that case; we seek only the basic, minimal safeguards.

I will summarise the Labour Party's objections to the Bill. (1) It is inappropriate, and possibly unconstitutional, for the Attorney General to be involved in judicial decisions, this Bill should be referred to the Supreme Court for a reference under the Constitution. The President should consult the Council of State of which the Taoiseach and the Attorney General are members. There may perhaps be some problem in adjudicating on a matter which directly affects himself. (2) If we decide, as the Bill in effect does, that it is necessary to establish a prima facie case for extradition, then that ought to be a matter for district justices to determine, not the Attorney General. (3) The way in which the Bill is drafted will subject the holder of the office of Attorney General to intolerable pressures in individual cases of extradition and will, inevitably, politicise the whole procedure. (4) It would lead to a situation where decisions involving the civil liberties of individuals would be made behind closed doors, rather than in open court. (5) The retrospective measure in the Bill is unsatisfactory. (6) There is no procedure for regular review of the operation of the legislation by the Oireachtas.

The more one examines the Bill, the more difficult it is to avoid reaching one or other of two conclusions. The pressures inherent in the Bill for the Office of Attorney General and the politicisation of the process that is involved could lead to a situation where extradition between this jurisdiction and the UK will simply stop altogether. It is not at all beyond the scope of imagination to wonder whether this is the real intention of the Bill.

I mentioned earlier that there is no mechanism for precipitating the involvement of the Attorney General and, unless he becomes involved, warrants will automatically be endorsed. It may well be that the Bill is designed purely as a sop to the Fianna Fáil backbenchers and that the role of the Attorney General will never be activated. Either way, the Bill must be seen as a cynical political exercise. Its safeguards are totally illusory. That is why we will be opposing it on Second Stage and seeking to amend it, if passed, on Committee Stage.

I wish to apologise to Deputy Barrett in case I showed any impropriety but it is difficult to restrain oneself when Opposition Deputies give their version of what goes on at my parliamentary party meetings. It is imprecise to say that 57 speakers opposed extradition and a remark like that detracted from Deputy Barrett's speech.

Some of the points raised this morning can best be dealt with on Committee Stage. Deputy Desmond O'Malley's analysis of the Bill was very similar to his analysis last year when he spoke about the historical hangover involved in the 1965 Act. That Act updated the 1870 and 1873 Acts which arranged for a casual transfer within the sub-jurisdiction from Britain and the United Kingdom—which included Ireland—but Deputy O'Malley failed to state that this Bill corrects that anomaly. Part III of the 1965 Act specifically excludes, in terms of extradition to the United Kingdom and Northern Ireland, the rule of speciality which applies to other countries covered by the Act. He should have been gracious enough to point out that that anomaly has been corrected by this Bill. I see that Deputy McDowell acknowledges that point.

We graciously agree that that is the case.

Deputy O'Malley's speech wandered into the realms of speculation. I was surprised that a former Minister for Justice could give such a false impression in relation to the implementation of this Bill and in relation to the Office of the Attorney General. Deputy O'Malley seemed to indicate that once an opinion was given by the Attorney General the warrant would be served and the person would be extradited. The Deputy did not acknowledge that once the opinion is given and the warrant issued a person can go to the District Court to test the validity of the warrant.

That is wrong.

A person can appeal against the warrant on the basis that he would not get a fair trial in the jurisdiction to which he would be sent. At the moment there are safeguards for Irish citizens in that they can appeal to the District Court, but this Bill adds a further safeguard in that the Attorney General will first check the evidence available against the accused and if the evidence is insufficient a warrant will be issued so that a person need not go through the trauma of having to go to the District Court to test the validity of the warrant. To give the impression that under the backing of warrants procedure it is possible to go into the merits or demerits of the case is wrong. The position has not changed with this Bill. This is only a matter of adding a safeguard in that the highest legal officer of the land can make a preliminary examination of the evidence which will be furnished to the court in the other jurisdiction, as that evidence could not be furnished to the court here.

It is wrong to give an impression that the Attorney General is suddenly to become subject to private pressures in darkened rooms as Deputy O'Malley said. Deputy O'Malley was once Minister for Justice. Is he suggesting that the integrity of the Attorney General cannot be impugned in any way in any of his other responsibilities but only when it comes to the Extradition Bill? That is what the Deputy is saying. It has never been said before that the Attorney General has been subject to political or other pressures, but when we come to this Bill he is suddenly a politicised animal who will be subject to pressures and to extraneous circumstances. A former Minister for Justice cannot possibly justify that position.

Under this Bill the Attorney General will have an opportunity, which is not at present available, to look at evidence and be satisfied that an accused has a case to answer. Nothing else is involved here. I cannot understand how the Attorney General and his Office has suddenly become subject to all these pressures when up to now there has been no such accusation.

This will be a new situation.

Last year I spoke on this issue and listened to practically all of the debate on it but the Labour Party's contribution was minimal although they were members of the Government. Why does Deputy Taylor now say that it is a fundamental principle of the Labour Party to insert a prima facie case when they did not bother to support the Bill in Government except to nonchalantly walk through these lobbies. It was as simple as that. We are now hearing this civil liberties argument that is so prevalent in the Labour Party in Opposition.

You spoke on the Bill——

(Interruptions.)

I happen to have some credibility on the issue, not like yourself.

Read what you said.

I will explain my position on this Bill, which is something the Labour Party cannot do because their participation in this Bill last year was minimal.

Deputy Taylor spoke on it.

They were against a prima facie case.

You were in favour of it.

The position of the Fianna Fáil Party in relation to this Bill now and last year is substantially the same.

It depends on what is substantial.

I will explain that. Last year we did not oppose extradition when we were in Opposition. In Government, in our deliberations in the parliamentary party, we did not oppose extradition. Last year and this year we sought safeguards for Irish citizens in respect of extradition to a jurisdiction about which we have some qualms with regard to the administration of justice. We sought a prima facie case last year. In Government on this occasion, the legal advice available to the Government as set out in the Taoiseach's speech is that under the 1957 Convention a prima facie case is not required on the basis that no warrant would issue unless there was sufficient evidence to issue a warrant. The last time Deputy Taylor's party had an opportunity to have an input into this debate they were very silent on this issue. Fianna Fáil are ensuring that there are new safeguards here. That is the important point. Despite the polemics and the semantics from the Opposition benches, the fact is that we are putting in in statutory form safeguards which we believe will give greater protection to Irish citizens.

Last year the Government referred to certain administrative arrangements on which they were working in the Anglo-Irish Conference and suggested that they hoped these arrangements would improve and thus eliminate defects in the issuing of warrants from the country seeking extradition. The previous Government were also involved in discussions about administrative arrangements to ensure that there would be informal contacts at the highest legal level to ensure that there would be evidence on which there was sufficient ground for prosecution. I would respectfully suggest that those administrative arrangements to which those Government Deputies referred are being put into statutory form under a Fianna Fáil Government, are receiving statutory recognition. I fail to understand why the Fine Gael Party, for example, should object to what they described as informal administrative arrangements being put on a statutory basis under the provisions of this Bill. What they were talking about is covered substantially in the amendments that we, as the party in Government, have insisted on. I should like to hear the main Opposition party refer to these matters, explaining why the administrative arrangements about which they boasted as giving sufficient safeguards last year — and which are now being put into legislative form this year — should in some way present a problem. If it is not a problem perhaps Deputy Birmingham, who will follow me, will say so. What is involved here is simply putting into statutory form the administrative arrangements to which they referred and were a party to last year.

It is not the intention of this Government that these arrangements should prove unworkable or unduly difficult from a strictly legal point of view. As was stated by the then Taoiseach, Deputy Garret FitzGerald, on the signing of the Anglo-Irish Agreement, it was a pre-condition on the signature of the Convention on the Suppression of Terrorism by his Government that he would get measures in the United Kingdom or in Northern Ireland which would improve confidence in the administration of justice there. We say that we, as a sovereign Government, have a right to protect our citizens first. That is our first obligation. It is my opinion — and here I speak personally — that any other Government who finds that a problem or to use a term, "think it is unhelpful" is a problem for themselves. If there is to be mutual respect between sovereign Governments it is fundamental that it should be accepted that any measures being taken to protect our citizens on sensitive issues such as this are initiated or proposed in good faith, bona fides and so on.

It is my belief that if we sign the Convention on the Suppression of Terrorism against a background of hoping for increased measures which will improve confidence in the administration of justice in Northern Ireland and Britain, we are quite entitled also, in implementing the provisions of this Bill in our laws, to say that we insist on safeguards, that we insist that the rule of speciality anomaly as regards Britain and Northern Ireland be eliminated, and that we insist that our Attorney General should be involved, satisfying himself that there is sufficient evidence before a warrant is served or endorsed. Before this we heard that we were expected to accept that the British Attorney General who, for some reason, is not being regarded as the highly politicised animal our Attorney General has suddenly become or his certification should be sufficient. For us to insist that our Attorney General should have an input, should satisfy himself in regard to warrants, is regarded in some way as being anomalous, unjustifiable, unhelpful or posing a problem.

I believe that, as a party, what we will have achieved by the enactment of this Bill will constitute a vast improvement on the position obtaining, either by a simple ratification of the 1987 Act on 1 December without any amendment, or by a deferral of that Act which would involve a continuation of the present system with regard to the McGlinchey case and the wide definitions that that involves. I believe we will have affected that improvement, as the Taoiseach has said, in a way which accommodates the interests of the security of the State and, at the same time protects the rights of our citizens who may be served with such a warrant.

The monitoring procedure in which our Attorney General will be involved under the provisions of this Bill have been introduced specifically to meet the argument put forward before now that the Attorney General is not answerable to the Dáil. The whole idea of the monitoring procedure is to ensure that Members of this House and people outside will have available to them, on an annual basis, a report by the Attorney General on how the provisions of the Act are operating. That is a reasonable provision and one about which there should not be undue disagreement on the far side of the House. The enactment of the provisions of this Bill, in addition to ratification of the Convention on the Suppression of Terrorism, is something in which we, as a Government, should engage. As a Government we should acknowledge that the specific serious crimes stipulated in that Convention should not be regarded as political offences given the nature, extent and sophistication of international terrorism with which we have to deal, whether that be by way of drugs, their abuse, political terrorism or whatever.

The role of our Attorney General vis-á-vis the provisions of this Bill should be accepted. The Director of Public Prosecutions is really involved in internal or domestic criminal prosecution matters. The Attorney General has a somewhat more international role, if I might describe it that way, as distinct from that of the Director of Public Prosecutions. The Director of Public Prosecutions is concerned wholly with domestic criminal arrangements or prosecutions. The Attorney General, as legal adviser to the Government, has a wider role. While I accept that the Director of Public Prosecutions has taken over some of the functions formerly undertaken by the Attorney General, without unduly speculating as to the politicisation of his role. I contend that the Attorney General is the appropriate officer to carry out the task set out under the provisions of this Bill. Obviously there are parties on the opposite side who disagree with that. I contend that the principle is correct. It is open to other parties to put down amendments as to which officer they wish to see involved in these matters. It is my honest belief that the Attorney General is the appropriate officer to undertake this task. It is unhelpful — to revert to one of the basic points I made — to suddenly resurrect, elevate or put on a pedestal the position of the Attorney General as being a political animal, somebody who will be engaging in dealings in darkened rooms, in secret, with no impartiality. It is totally unfair to suggest that. There have been no condemnations, no problems with this Attorney General vis-á-vis all his other roles, or with previous Attorneys-General in theirs. They have been admirable, competent people. To suddenly foist that cloud of conspiracy on the Attorney General's office in relation to this matter is totally unjustified. Quite apart from the individual concerned, it constitutes an attack on his office. The Attorney General's position in this matter should be accepted in the same way it has been accepted in all the other roles in which he has been involved.

I recommend this Bill to the House. In all circumstances it strikes the right balance between the major impact of recent events not in their emotional quality but in the way they affect the security of the State. It strikes the right balance in that we are meeting our responsibilities internationally by the ratification of the Convention on the Suppression of Terrorism while, at the same time, answering the very deeply felt concerns of many people as to the implications of extraditing people to Britain or the North of Ireland under present circumstances because of the way the administration of justice affects Irish people there. There is a distinct character to the way in which Irish defendants seem to find themselves when they come before British or Northern Ireland courts. We, as a Government, have struck the right balance in that regard. The parliamentary party have argued, discussed and sought these safeguards. I am delighted the Government have answered those concerns and have brought forward this amending legislation.

If the Opposition had found the administrative arrangements satisfactory — their informal consultations were just as private as what they claim is involved in this measure — I fail to see why they should have any problem in accepting arrangements on a statutory basis, annual reports referable to the Dáil on which there can be public discussion. In this legislation we are proposing to get rid of the anomaly in Part III of the 1965 Act as far as the rule of speciality is concerned with Britain and the North of Ireland. I recommend the Bill to the House and I will get involved in the specific legal arguments on Committee Stage.

Much controversy, comment and speculation has preceded the introduction of this Bill for quite a number of weeks past. It has been on our Statute Book for 12 months awaiting implementation. We had assumed that the Government were giving it deep consideration but when we saw what they had produced there was considerable disappointment. As far as we can see this Bill does not provide adequate safeguards for innocent people and what we are talking about is innocent people who may be caught up in these procedures. We do not believe the Bill gives these adequate safeguards. It has the potential to create considerable procedural wrangles and various difficulties.

Before proceeding with the details of the Bill it is only right that I should again repeat some of the points which were made 12 months ago in regard to the broader context of extradition, especially for the benefit of those who may still be clinging to old traditions and old principles which were very important, some of which are still very important, but times have changed. The world is very rapidly changing. There is much to suggest that as regards the traditional reluctance of many countries, including our own, to extradite a person wanted for trial in another country for a political offence or for a crime connected with a political offence the question of a political offence, or for a crime connected with a political offence the question of political motivation is no longer adequate to deal with the phenomenon of terrorism and various acts which have become such a feature of life in the seventies and the eighties.

The political exemption clause which has applied in this country is not unique. It was in many countries and was probably first introduced in Britain. It was part of a very honourable tradition in the late 19th century and the early 20th century, when people believed that when political opponents of various dictatorships or unsavoury regimes of one kind or another sought refuge in a particular country they were entitled to some protection and asylum and should not, in the normal circumstances, be handed over to another country.

That tradition dates from a period that was very different from today. At that time there was much less movement of people between states. It was not possible to plant a bomb and to be on a plane home before the bomb exploded, as can be done now. There was much greater use of the death penalty in various countries and extradition generally meant death in those days. Judicial and court procedures offered much less protection to accused persons. At that time the ability of a country or a group of countries to influence the direction of court and judicial procedures in another country was much more limited that it is now. Since then there has been a number of international agreements which, even if they are not always fully respected, set basic minimum standards for court procedures and for the general treatment of accused persons.

This honourable tradition of political asylum dates from a time when there were fewer democratic Governments than there are now. Most important of all it dates from a time when terrorism, as we know it today, did not exist. In the past decade or two the international community has had to live with the problem of international terrorism and many groups in different countries are prepared to use indiscriminate violence to further what they consider to be a political cause. Groups such as the Bader Meinhoff in Germany, the Red Brigades in Italy, various Palestinian splinter groups and, here at home, the Provisionals, the INLA, UVF, UDA and so on have all engaged in acts of terrorism not just in their own countries but in other countries against whom they believe they have some grievance.

The Workers' Party are implacably opposed to terrorism which we believe is the enemy of democracy. Those who die and suffer from various acts of terrorism are more often than not ordinary working class people. We also believe that violence and terrorism makes the process of political change far more difficult. It plays into the hands of Tories and right-wing parties and it increases the repressive laws and repressive systems of Government.

In these circumstances it is not unreasonable that countries that have traditionally operated a policy of not extraditing people for political offences, and offences associated with political offences, should look again at the whole procedure. In connection with that, the European Convention on the Suppression of Terrorism sets out specifically terrorist acts and not political acts. We fully support that European Convention removing terrorist offences from the category of political offences. We must emphasise, however, that that certainly does not mean that there should be no controls and no reservations or that protection afforded to persons wanted by another state should be casually swept aside. There still are political offences. There still are political ideologies and people are still being persecuted and even killed and murdered for their political ideology. That must be kept in mind in connection with political offences but acts of terrorism must not be regarded as political offences. That is the basic issue we are dealing with and that is the basic issue with which we totally agree.

There are probably some people in this country still who believe we should not, under any circumstances, hand over any person to a British Government irrespective of how many bombs they may have set off or how many people they may have killed or maimed. There may be those who have warped attitudes and would say that even those responsible for the Enniskillen massacre, if caught south of the Border, should not then be handed over to face justice. However, I believe these are very much a small minority now. I believe the vast majority of people accept that those who are engaged in such vicious acts of terrorism as those in Enniskillen should not be able to shelter here behind the excuse of political motivation in order to avoid being called to account for their actions but we must provide adequate safeguards for the innocent people who may be handed over to face courts in another jurisdiction.

Many British and unionist politicians have used the whole extradition question as a stick to attack this State, particularly in the past couple of months or so. There have been many attacks on the State and various institutions, such as the Garda. While unionist politicians have every right to complain about many of the public attitudes here in the South, and about what one might call the total lack of political understanding of their political attitudes by people down here, their criticism in relation to extradition is not founded on any reasonable basis. They have tended to see terrorism in Northern Ireland as being masterminded almost totally from the South and have ignored the internal factors, especially the basic sectarian nature of all the terrorist attacks in Northern Ireland, which is in fact a Northern Ireland phenomenon, unique in Europe.

A number of British Tory and unionist politicians regularly try to suggest that there are hundreds of people wanted by the RUC being sheltered here in the South, having what they call a safe haven in the South. They have the idea that if a few minor rules and legislation were changed they could all be handed over to the RUC and brought to justice. First of all, that is patently not true. The jails in Northern Ireland are full of people from Northern Ireland, and the jail in Portlaoise is full, the majority being also from Northern Ireland caught down here. The vast majority of those in the South who are wanted in the North are wanted for questioning and no country, not Britain or any other country, would allow their citizens to be extradited simply for questioning or interrogation. There would be no question of that.

Unionists leaders have not been willing to give credit for the progress that has been made in extradition in recent years, and most of the credit for that goes to the Judiciary rather than Members of this House. It was they who brought about the changes and not the Government. The courts now apply a much more restricted definition of what constitutes a political offence and have been prepared to extradite people who in previous years would have gone free. However, the results have not always been satisfactory. When Dominic McGlinchey was extradited it was found there was practically no case against him. He was, of course, subsequently re-extradited down here to the South. That whole procedure made the whole thing a joke. Again, this week, there was considerable criticism from unionists about the release by the Garda of a man because of the failure of an RUC warrant to arrive, and this man was alleged to have escaped from the Maze Prison. The man was subsequently re-arrested when the warrant arrived, but it later emerged that while the man had indeed escaped from the Maze Prison he had subsequently been re-arrested in Northern Ireland and was released on bail by a court in Northern Ireland. While we certainly need to improve administrative procedures for dealing with the exchange of warrants, the rule of law must be firmly applied in the South as it must be in the North, and there must be no legal shortcuts taken north or south of the Border.

The real mistake in relation to this Extradition Bill and last year's Extradition Bill, and the origin of many of the difficulties in which we now find ourselves, was made in the negotiations for the Anglo-Irish Agreement. The Coalition Government were so determined to get the agreement of the British for the accord that they agreed to ratify the European Convention on the Suppression of Terrorism without any qualification or reservation whatsoever. That was a mistake. If at that stage the Coalition had insisted that the Convention would only be ratified subject to the reservation, say, that a prima facie case would be established in an Irish court against the person whose extradition was sought from this country, then I believe this whole extradition issue would have gone through with the minimum of controversy and the minimum of difficulty; it would all have been solved quite easily last year or the year before. They did not do so and resisted all attempts to amend the Bill ratifying the Convention when it was going through the Dáil here just last year. In fact, they only got it through on the casting vote of the Ceann Comhairle on three occasions.

I must say I was puzzled by the Labour Party's position and amazed by what has been happening in the Labour Party over extradition. Also, I was very glad at the decision they have come to in supporting the need for a prima facie case to be established. However, this time last year they fully supported the 1987 Act and they rigorously resisted and voted down, on three separate occasions, all efforts to insert the protection of a prima facie case in the Act. They maintained that position throughout this year consistently right up to this week. They maintained it last week because only last week Deputy Stagg was severely and publicly reprimanded. In fact, he was nearly extradited himself having supported the need for the protection of a prima facie case to be established in an Irish court to be put into the Bill. That was only last week, and now Deputy Taylor has suddenly become the most outspoken and the most committed supporter. I was delighted with his comments on the radio, as if he was a prima facie man from birth, with no question of any doubt about it, and that is his position today. It is the suddenness of this that has amazed me. I have no objection to it. Throughout my life I have examined what we have been doing to see if it is right and to change and move ahead. I am not questioning that at all. I am simply questioning the sudden difference between last week and this week. I hope that the position maintained this week will be continued for at least a few more weeks, because it is correct that we should give that type of protection to our citizens. I am glad the Labour Party are supporting this.

The mistake made by the Coalition Government in their statement in the Anglo-Irish Agreement of total commitment to bringing in the European Convention on the Suppression of Terrorism without any qualification was compounded by the decision to link implementation of the Act to the question of legal reforms in Northern Ireland. When Fianna Fáil came to power this seems to have been whittled down to the question of increasing the number of judges in the Diplock courts from one to three. As far as we were concerned, this was a total diversion. As I pointed out in the debate last year, there is not much to choose between one judge Diplock Courts in Northern Ireland and the three judge Special Criminal Court operating down here. The conviction rate in the latter is, in fact, higher than the conviction rate in the Diplock courts in Northern Ireland and there is a right of appeal in Northern Ireland from the decision of a Diplock court to a three judge court.

In any event, the aim should be not to concern ourselves with the Diplock courts but to move back as quickly as possible to all-jury courts, both North and South. If the implementation of the Act were to be linked to legal reforms in the North, there are far more pressing issues than the number of judges sitting in the Diplock courts. It is interesting to ask why the Coalition Government did not bring in the Act when it was passed and forced through the Dáil, why they let 12 months pass without bringing the Act in. They put the incoming Government as well as themselves in the ridiculous position of getting nothing and still having to bring in the Act, when they could have brought it in last year. I do not understand what point Deputy Barry had in mind in relation to the possibility of using what we should be doing in any case — in other words, the endorsement of the European Convention on the Suppression of Terrorism — as some kind of lever when it was not a lever at all because we would have to bring it in in any case.

The far more fundamental question raised by the whole extradition issue is: what safeguards should be applied in this country before a person is extradited to another jurisdiction? We have always believed that the establishment of a prima facie case in an Irish court should be a pre-condition for extradition of Irish citizens. In this Bill there is no distinction between Irish citizens and any other citizens, whereas many other countries in Europe who have accepted and endorsed the Convention make the distinction between extradition of their own citizens and extradition of nationals of another country who are in their country. We are saying that for Irish citizens there should be a prima facie case established in an Irish court as a pre-condition for extradition.

A person who is charged in this country with an indictable offence already has to have a case established against him or her in a District Court before being returned for trial to a Superior Court. Surely, it is not unreasonable to expect that the same basic minimum standard should be applied to an Irish citizen who is being handed over to another country? Such a requirement should not unduly delay extradition proceedings. If another state is in a position to issue a warrant for a person sought, presumably the police work has been done, the case against the accused has been established. Establishing a prima facie case could be done simply by producing a book of evidence, or at least a police file. What is called sufficient evidence has not been established.

In the case of the agreement with the United States, part of which has already been quoted, what was required was that the request should be accompanied, in the case of a request emanating from Ireland, by a statement of facts by way of affidavit or statutory declaration, setting forth reasonable grounds for believing that the offence had been committed and that the person sought committed it. In his opening speech the Taoiseach said that the problem with having to have key witnesses from that jurisdiction available in court for examination on their written statements would also arise. My understanding is that it would not arise. First, my understanding is that already in the normal extradition procedure — and this happened only the other day in Cavan — a policeman must come to identify the person who is brought before the court. One has to have police presence in the normal procedure, in any case.

Secondly, I understand that in the normal domestic procedure, where a prima facie case has been established in a court, the judge can and does refuse to order the attendance of witnesses where they are from outside the jurisdiction if he believes it would cause unnecessary delays or problems. Having a prima facie case does not necessarily mean that one has to bring over many witnesses; one does not. I dispute the assertion by the Taoiseach that the need to have key witnesses from outside the jurisdiction would arise, or that it would create unnecessary difficulties.

During the debate in 1986 the arguments for a prima facie case were strongly put, not just to The Workers' Party but by Fianna Fáil and the Progressive Democrats. All three parties tabled amendments. There were votes on all three and only the Ceann Comhairle's casting vote defeated them on each occasion. If one takes the parties and Independents who voted for a prima facie case in 1986, they now represent more than 100 Members of the present Dáil. I have no doubt that if there were a free vote on the issue this week there would be an overwhelming majority for a prima facie case in some form.

What is provided in this Bill cannot be described as establishing a prima facie case and our objective was and is the establishment of a prima facie case. Even if we were to accept something short of this, this Bill would still be regarded by us as most inadequate and unsatisfactory. We consider it quite unacceptable that the Attorney General, basically, should be given the power to decide who shall or shall not be extradited. The Attorney General is the law officer of the Government. It is a political appointment. On previous occasions, they have been Members of this House. There is nothing to stop the Government in the future from appointing a Member of the Dáil or Seanad to this position.

As I understand it, the Attorney General attends, or can attend, Cabinet meetings. Some of the previous appointees have fairly obviously known much more about politics than about the law. Many had a fairly limited experience on the practice of the law. The previous incumbent of the office — and I am not casting any aspersions on him; he is probably an excellent person — was a junior counsel who was made a senior counsel and Attorney General all in the space of 24 hours. It is a political appointment. One can imagine the sort of pressure which the Attorney General would be subjected to given the political nature of his job and particularly given the powers which it is intended to give him under this Bill.

Let us look at a hypothetical situation. The Anglo-Irish Agreement will be reviewed in the coming year. Let us suppose the Irish Government wish to wring certain concessions from the British Government, as Deputy Garret FitzGerald tried to do when he was Taoiseach, in that review. The Attorney General, being a member of the Government, would be involved in some way in the negotiations which would take place. Even with the best will in the world would it not be unreasonable to expect the Attorney General, if he received a request from Britain for the extradition of a person involved in some highly publicised and controversial case, to totally cast from his mind the political implications of the decision he would have to make and what he might do to wring concessions from Britain, as Deputy FitzGerald had in mind when the Act was passed last year? Would the political implications not be a factor in the legal decision which the Attorney General would have to make? I believe they would be a factor in the Attorney General's mind.

If the Government are determined that the job of deciding whether or not a case exists against a person sought should not lie with the District Court, which is where we believe it should be decided, then why not let a less political figure than the Attorney General decide? Why not the Director of Public Prosecutions, who has established a fairly clear record of independence and political impartiality. Certainly, the DPP would be less objectionable and less constitutionally questionable than the Attorney General. Why not create a totally new position such as a judicial scrutineer or examiner of extradition cases? Why not ask the President of the High Court to nominate a High Court judge to do the work that is envisaged under this Bill for the Attorney General? This would take the decision which would have to be made out of the direct political arena and would satisfy many people in this House who would still have doubts about the efficacy of the Bill. Such a procedure would remove a major problem.

A major flaw is that the approach adopted in the Bill is a negative one. In other words, a warrant would be processed in the normal way by the Commissioner of the Garda Síochána unless the Attorney General intervenes to give a direction to say "No". There is no procedure that we know under this Bill or under the 1965 Act to compel anyone to tell the Attorney General what is happening or to inform him when a warrant has been received. Who is supposed to inform the Attorney General and what happens if the Attorney General is not informed in regard to the arrival of warrants? Where do the British Government come in on these procedures? Are they to advise the Attorney General, the Commissioner of the Garda Síochána or the Taoiseach? Who will be informed?

Another major flaw is that while subsection (b) of section 44B would compel the Attorney General to satisfy himself that the intention to prosecute a person sought was founded on the existence of sufficient evidence no attempt has been made to define what constitutes sufficient evidence. Will the evidence to be presented have to be in documentary form or are we talking about the presentation of a book of evidence or are we talking about the presentation of the police file and background evidence which I referred to earlier or are we simply taking about a phonecall from one police officer to another or from the British Attorney General's office to the Irish Attorney General's office? We do not know what we are talking about. These are questions which we are entitled to have answered before we make a final decision on this Bill.

There may well be a secret protocol between the Dublin and London Governments accompanying this Bill of which we are not being informed. If there is not, it is virtually impossible to see how this Bill would operate. We are also concerned at the fact that the proposed protections would only apply to persons being extradited to Britain and Northern Ireland and would not apply to those who would be extradited to the other countries, more than 20 of them who are also parties to the European Convention on the Suppression of Terrorism. Are we going to fall back into the old attitude of assuming that it is only British justice which is flawed and that there are no problems whatever in other jurisdictions? We have every right to be concerned about people who may be extradited to Britain and Northern Ireland given the experience of some trials in the past but we should also be concerned about the fate of those who may be extradited to other countries such as Turkey which is a party to the European Convention on the Suppression of Terrorism.

I do not think Turkey could be considered a democracy within the normal meaning of that term. It is a sham democracy with a military dictatorship telling the Government what they may or may not do. Opposition parties are banned and people are jailed not just for terrorist activities but for their political beliefs.

There are other countries such as France whose legal procedures are such——

Czechoslovakia, Hungary, Poland and the Soviet Union.

Your allies in the Soviet Union.

We are dealing with either 21 or 25 countries and the Soviet Union is not one of them. I am talking about the countries which are on this list.

I would suggest to Deputy Mac Giolla that he would be very foolish to be so courteous as to answer interruptions. He does not have to extend his courtesy that far in this House.

Everybody else dealt with Britain and I have briefly dealt with Turkey. I am now taking France as an example of a country whose legal procedures are such that people may be detained in custody for periods of up to two years before they come for trial. Therefore, extraditing a person to that situation should be given very serious thought and one would want to make sure that there is a case to answer so that the innocent may be protected. I am afraid that we have become so bogged down in our attitude to Britain and British justice and to Northern Ireland that we seem to have given very little thought to what we might be letting some of our citizens in for under this extradition agreement with other countries. There seems to be no consistency in our attitude to extradition and to the safeguards which should go with it.

We have some alternatives to extradition which have never been used but which prove that beyond the question of extradition a person is not necessarily going to go free. There are other procedures in courts here for indictment and trial of persons under the Criminal Law Jurisdiction Act, particularly those required for offences in Britain and Northern Ireland. The Extradition (European Convention on the Prevention of Terrorism) Act, 1987 provides for the possibility of putting on trial in this country people who are wanted for certain terrorist type offences in another jurisdiction. That can be used and followed up.

I said at the outset that we are disappointed with the terms of this Bill. We have indicated that we will not oppose the Bill on Second Stage; we will not vote against it then but we will be tabling amendments on Committee Stage. What happens on Committee Stage will determine our position on any vote at the end of the Committee and subsequent Stages. We will decide our position on the issues involved.

We are not at all impressed by the Taoiseach's statement last night and I think nobody could be impressed by that attitude, that sort of attempt to bully and browbeat people on their attitude to the Bill before the House. A general election would be very much welcomed, certainly by the people The Workers' Party represent in this House, welcome not necessarily on extradition which they know or care little about one way or the other, but on issues of health, education, local authority services and the various cutbacks on the working class people. The Taoiseach's attitude in attempting to blackmail people with regard to this Bill should be resisted by everybody and we should deal with the Bill in the manner that we should all want, first, that is, to ensure that the European Convention, in other words the listing of terrorist crimes which are not political offences, is agreed by all and that we give protection to our own citizens to ensure that innocent people are not caught up in extradition procedures either to Britain or any other countries. We are dealing in this Bill specifically with Britain and Northern Ireland. We should give them the minimum protection which we give in our courts here, that is a prima facie case. If the Taoiseach feels—and Fine Gael have made this point — that you cannot have the legal requirement of a prima facie case, I cannot understand or follow that argument. I hope it will be all explained to me during this debate or on Committee Stage etc. If the argument is that we cannot have a prima facie case we must have the next best thing to the legal procedures of a prima facie case, such as a book of evidence or the procedures laid down in the Extradition Act with the US and something added to them. We must ensure that the case is stated and that we are satisfied that there is a case. Again I ask the Taoiseach to look at the question of the Attorney General or a special judicial person being put in charge of examining these procedures because that will be one of the key issues in this debate in the coming week.

I am pleased to have the opportunity to speak here today on this Bill. The Bill proposes to amend the Extradition Act, 1965, by providing essential and reasonable safeguards for any Irish citizen faced with extradition proceedings to Great Britain or Northern Ireland.

As Fianna Fáil spokesman on Justice during the Dáil debate on the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, I emphasised in the Dáil the need for safeguards to be built into the extradition process. During the course of the debates and my proposed amendments on the various stages of that Act I sought to ensure that no Irish citizen would be extradited from the protection of our courts unless it was established that there was a genuine case to answer, a clear intention to prosecute and not merely for questioning, reasonable grounds for being satisfied that the person concerned would receive a fair trial within a reasonable period, reasonable grounds for believing that the person concerned would not be subjected to methods of questioning or interrogation which would be unlawful or in breach of the European Convention on Human Rights, a time limit on the retroactive element of the Bill and that an extradited person would not be proceeded against in respect of any offence committed prior to his surrender other than that for which extradition was agreed.

My basic approach, and that of the Fianna Fáil Party at that time, was to provide adequate safeguards in legislation for the protection of our citizens. That was our position and it remains our position. It is clear from the Bill before the House that we have maintained our dual commitment to providing no refuge for terrorists, while at the same time safeguarding citizens sought by other countries.

I am glad that this Fianna Fáil Government have taken the necessary steps to safeguard our citizens in the extradition process. Extradition is, as Deputies are well aware, often an extremely sensitive issue affecting basic human and civil rights of our citizens.

During the course of the Dáil debates last December, we in Fianna Fáil fully supported and committed ourselves to co-operating with our partners in the Council of Europe in their efforts to combat international terrorism. We are totally opposed to international terrorism and will fully play our part with our partners in Europe in the suppression of international terrorism. We are prepared to take the necessary steps for the protection of life and to ensure that those persons involved in terrorist activity are bought to justice.

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 principles of international law. The introduction of the Extradition Act, 1965, was a clear statement of this commitment. This Act gave legislative effect to the European Convention on Extradition, 1957. This important Convention was designed to harmonise the procedures for dealing with the extradition of all criminals, apart from those involved in political offences. That is where the political offence exception was included. It is interesting to note, however, that Britain has not yet signed that Convention and continues to insist on a prima facie case being proven before granting extradition to European countries other than Ireland. The British Parliament is at present considering legislation to remove this requirement for a prima facie case because of the practical difficulties which have been experienced.

During the course of my Second Stage speech in the Dáil on 4 December, 1986 on the Extradition (European Convention on the Suppression of Terrorism) Bill I said:

In this same spirit of international co-operation we support the principle of this Bill and will support the Second Stage Reading. But we unreservedly condemn the Government for their carelessness, or for their calculated omission, in not including any safeguards for our Irish citizens in this European Convention.

This Bill now provides the necessary basic safeguards for Irish citizens facing extradition and deserves the support of this House.

By proceeding to implement the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, we are clearly showing that this Government will not provide shelter for persons involved in terrorist activity.

The effect of the 1987 Act is formally and by legislation to exclude a range of activities which were previously pleaded as having been political offences, or offences connected with a political offence. Where this plea succeeded, extradition would not be granted. The courts were effectively going in that direction in any event as evidenced by the Supreme Court decision in, for instance, the McGlinchey case.

The present position in relation to extradition is that Irish citizens are not extradited to other European countries, in keeping with the general terms of the Convention on Extradition, 1957. However, Irish citizens can be extradited to Britain and Northern Ireland under the provisions of Part III of the Extradition Act, 1965.

The Extradition Act, 1965, governs our extradition arrangements with other countries. Part II of that Act provides for extradition generally under any international agreement or convention to which the State is a party. It also provides for extradition where the Government are satisfied that reciprocal facilities will be offered by another country. Part III of the 1965 Act provides for an arrangement for extradition with Britain and Northern Ireland known as the "backing of warrants".

The legislative position regarding extradition remained unchanged from 1965 to 1987. When the previous Government were introducing the Extradition (Convention on the Suppression of Terrorism) Act, 1987, I spoke of the need to introduce changes in the legislation so as to provide safeguards for Irish citizens facing extradition to another country. That Bill proposed to extradite Irish citizens to face charges in Britain or Northern Ireland even in circumstances where they may not be sent for trial here. It proposed no means whereby the Irish criminal justice system could provide safeguards for citizens facing an expanded range of offences, which previously would have been regarded by the courts as political offences.

The net effect of this was that we were to have no safeguards for our citizens who were sought for extradition. This placed us in a unique position vis-á-vis most other countries. Having said that, I also realise that we are in a unique position in another respect, in that it is most likely that any person sought for extradition to Britain or Northern Ireland is an Irish citizen.

This was the basis from which I proposed amendments to the Extradition (European Convention on the Suppression of Terrorism) Bill last year seeking essential safeguards for Irish citizens being sought on foot of extradition warrants for Britain and Northern Ireland. My initial proposal on Committee Stage was for a prima facie case. I was particularly interested in the comments of Deputy Kelly who suggested to the Minister for Justice during the Second Stage debate that he would do well to look at the Bill to see whether he could go some distance towards meeting my requirement for a prima facie case. At the same time, Deputy Kelly said that there may be problems with a prima facie case and I acknowledged the difficulties by tabling an amendment on Report Stage proposing that the High Court or Minister for Justice be empowered to order the release of a person unless the Court or the Minister is satisfied: (a) that the person would receive a fair trial within a reasonable period; (b) that the standards in the administration of justice in the place to which the person is to be moved are satisfactory and acceptable; or (c) the person would not be subjected to methods of interrogation which would be unlawful or in breach of the European Convention on Human Rights.

This time last year we were trying to have some safeguards built in. We proposed a number of safeguards to the Government and the Minister for Justice at the time. We suggested to him that he might, from these proposals, take any of these safeguards, or propose his own safeguards instead. He, of course, would have the full backing of the legal authority and advice which the Government of the day have and we would be very happy to listen to that advice. In the event, nothing was done of a statutory nature.

The Extradition Act, 1965, provided that persons should not be extradited where the offence for which they were sought is a revenue offence, an offence under military rather than civil law, or an offence which is a political offence or an offence connected with a political offence.

No definition was provided in the 1965 Act, nor indeed in the European Convention on Extradition which formed the basis for that Act, for a political offence. Accordingly, it fell to the courts to determine, in the light of the cases coming before them, what should be regarded as a political offence.

In recent years the courts limited the meaning of the term "political offence". The effect of the judgment of the Supreme Court in the McGlinchey case clearly indicates that certain offences are not to be regarded as political offences even though political motivation was claimed for them. The test now applied by the Supreme Court is whether the person charged was engaged in what reasonable, civilised people would regard as political activity.

This change by the courts fundamentally altered the position in relation to extradition. This important decision by the courts was in line with the new approach of our European partners to the concept of a political offence. It also removed the constitutional difficulties related to international law which had prevented us from signing the Convention on Terrorism.

The Extradition (European Convention on the Suppression of Terrorism) Act, 1987, gives effect to the Convention on the Suppression of Terrorism, 1977.

Under Article 1 of that Convention certain offences are not to be regarded as political offences in any circumstances, kidnapping, hostage taking, and the use of explosives or automatic firearms if this use endangers persons.

I propose now to outline the background to this Bill without going into detail.

It is necessary to be clear that this Bill seeks to amend the Extradition Act, 1965. The Extradition (European Convention on the Suppression of Terrorism) Act, 1987, comes into effect on 1 December 1987, whether or not this Bill is passed by the Oireachtas by that date.

Failure, however, to enact this Bill will mean that Irish citizens can be extradited to Britain without any adequate safeguards. This is not acceptable to the Government, nor is it acceptable to the vast majority of citizens in this State.

Accordingly, and this is the kernel of our concern on extradition, we are providing a mechanism which will safeguard our citizens where they are sought by another country. In addition, we are providing for further safeguards to ensure for example, that the legislation is not used to extradite persons in circumstances where it would be unjust, oppressive or invidious to do so having regard to the lapse of time since the commission of the offence.

It is essential that we have safeguards for Irish citizens who may face extradition proceedings. However, we are concerned to ensure that such safeguards do not have the effect of making extradition impossible or unworkable.

In Britain, the White Paper which was published prior to their current legislative proposals to remove the requirement for a prima facie case to countries other than Ireland acknowledged that Britain was widely regarded as one of the most difficult countries from which to secure extradition. 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. In effect the prima facie requirement made extradition unworkable. That is something we have to face in a realistic and practical way.

We are satisfied that this Extradition (Amendment) Bill will provide the necessary safeguards for Irish citizens. But at the same time, the arrangements are such that they will not make the extradition process unworkable. That is the balance we have to achieve.

I propose now to consider the various safeguards which are incorporated in this Bill. The Attorney General must be of opinion that there is a clear intention on the part of the state requesting extradition to prosecute the accused person. In order to enable him to form this opinion, the Attorney General shall consider such information as he considers to be appropriate. This provision clearly precludes the extradition of persons for questioning and meets one of our reservations raised on the 1986 Bill. The second safeguard is that the Attorney General must be of opinion that the intention to prosecute is based on the existence of sufficient evidence.

When these two safeguards are taken together we get as near as is possible to the requirement for a prima facie case. At the same time we avoid the practical difficulties associated with establishing a prima facie case. These are the ones referred to by the Minister last year when the Bill was going through the House and by Deputy John Kelly and are the ones we have to recognise.

This is a very reasonable, sensible and practical approach—and it is the one we are taking — to providing the essential safeguards for our citizens which must be part and parcel of any extradition arrangement between countries. It is a clear indication of our resolve to provide adequate safeguards while at the same time ensuring that extradition does not become unworkable.

I am sure a great deal will be said during the course of this debate about this basic initial safeguard, which is the safeguard of the Attorney General. I have listened to some of the Deputies who have spoken so far. I noticed that Deputy Mervyn Taylor was all for the prima facie case and against the involvement of the Attorney General, a non-court person, as he said, having the right to decide on this matter. It is interesting to note that on 16 December 1986 Deputy Taylor was the person who asked why there should be a difficulty in transferring a decision on a prima facie issue to an Irish legal officer instead of leaving this judicial decision to a non-judicial officer in another country. Is it not surprising that this year he has come along and said something totally different? He went on to say that the decision could rest with a senior legal officer who is performing an administrative function, not a judicial function, and that that senior officer should be here. That was Deputy Taylor's view last year. It was a very reasonable approach for him to take. He knew that there should be somebody to ensure that there was, on the face of it, a case to be answered. He felt it was unsafe and unsatisfactory to rely on the British counterpart, under an administrative arrangement, to act in this way and he asked quite naturally why an Irish legal officer could not fit into that role here and perform that function. He was quite right. He might look back at what he said at that time and realise that what he said then is met by the proposal the Government are putting forward now.

Deputy Mac Giolla and others have questioned, and seem to distrust, the function and role of the Attorney General and suggested by innuendo, that there might be something unconstitutional about it. I would like to remind Deputies that the sole function of the Attorney General is to examine the warrant and any information which he has in it for the purpose of forming an opinion as to whether the warrant has been genuinely sent for backing with the intention of prosecuting the person concerned for that offence and that such an intention to prosecute is founded on sufficient evidence. These are the things we are concerned about. These are the basic concerns, along with the ones I mentioned in relation to our initial and basic safeguards. That is the sole function of the Attorney General. It does not constitute an administration of justice any more than does the decision of the Attorney General or the DPP to initiate a prosecution granted on the sufficiency of evidence or the action of any member of the Garda Síochána who, on suspicion, arrests a person and brings him to be charged before the court. That is the function the Attorney General will have under the safeguards we are providing.

The power of the Attorney General in the Bill cannot be regarded as a judicial function as it only relates to a decision as to whether the matter should be brought before the court. That is the only decision he can make. This of course, is the extra safeguard when courts have no prima facie rule. The power the Attorney General has is very important but it only relates to the decision as to whether the matter should be brought before the court. The jurisdiction of the court is not being interfered with or reduced because the court has not, and never had, any power to decide whether a warrant should be endorsed before the commissioner endorsed and executed it.

The power being conferred on the Attorney General is not in substitution for the court's power to decide whether an order for delivery to the requesting state should be made. The Attorney General has no power to decide that. From the moment a person is arrested on foot of an endorsed warrant under the 1965 Act until he is brought before the District Court, the entire process, leading up to and including the decision by the court as to whether there should be extradition, is under the control of the court. Any decision as to whether there should be an endorsement does not result in an extradition per se just as the decision to bring a charge or initiate a prosecution does not lead per se to a return for trial on a conviction. These matters, like the making of an extradition order, are other matters for the court after proceedings have commenced. A person arrested on foot of a warrant which has been endorsed, because the Attorney General decided not to give a direction, cannot be extradited merely because he has been so arrested. The court must make a decision before there can be extradition.

Article 30 of the Constitution gives the Attorney General a power to prosecute which involves a consideration of whether there is sufficient evidence for a prosecution. The type of decision the Attorney General will make is similar to the type of decision contemplated by Article 30. It seems difficult, if not impossible, to argue that the measures being taken would be unconstitutional without also arguing that Article 30 of the Constitution is contrary to the Constitution which, of course, would be quite absurd.

The Attorney General's power amounts to a power to decide whether a matter should be brought before the court and our legal system could not function if only judges could decide to bring matters before themselves. Powers to prosecute which involve the consideration of evidence, as I have outlined, have been conferred on Ministers and other bodies by many statutes. I am sure the Deputies are aware of many of the references to them.

Succesive Attorneys General have been directly responsible and involved in the extradition process since 1965. After proceedings were initiated in the District Court, officers of the Attorney General from the Chief State Solicitor's Office have advised and conducted the proceedings on behalf of the applicant, sometimes engaging counsel nominated by the Attorney General. Indeed, if we look to the view of the Supreme Court we find in the case of McLoughlin v. the Minister for Social Welfare — which happens to be my brief at present — and this is reported in the Irish Report 1968, the Chief Justice stated:

The Attorney General exercises executive power just as he did under the earlier Constitution. I see no difficulty in holding that he exercises such power under the authority of the Government while he retains, in the day to day decisions that he has to make, the independence which he has always enjoyed.

This independence was exercised, for example, in relation to his functions as prosecutor in all criminal cases which he still retains but which now are exercised in practice by the DPP under the Prosecution of Offences Act, 1974, except in certain cases reserved to the Attorney General. The Supreme Court also held that:

He is to be the adviser to the Government in matters of law, but he may not be a member of it — he may at any time resign and the Taoiseach may request his resignation. If he refuses to resign the Taoiseach may require the President to dismiss him. He is to perform all such powers, functions and duties as are conferred on him by the Constitution and the law, (such legal powers and duties being set out in the Ministers and Secretaries Act, 1924).

I further quote:

It is quite clear that the Attorney General is in no way the servant of the Government but is put in an independent position. He is a great officer of State with great responsibility of quasi-judicial as well as an executive nature. The provisions for his voluntary or forced resignation seek to recognise that it may be his business to adopt a line antagnostic to the Government, and such a difference of opinion has to be resolved by his ceasing to hold the post, probably with repercussions on the political plane. But, while he is in office he holds and if he is to do his duty and discharge his responsibility, must hold an independent position. He is specifically excluded from being a member of the Government which again underlines his independent position.

That is the view of the Supreme Court. Deputies need have no fears or concerns about the constitutionality of the position of the Attorney General. It is very clearly laid out and established in precedent. This of course goes to underline that the Supreme Court have found the independence of the Attorney General in the exercise of his functions entirely consistent with his position and role as legal adviser to the Government.

The last Coalition Government had agreed in principle with the British Government that warrant for extradition would be endorsed when the British Attorney General had sent to the Irish Attorney General, through the diplomatic bag, a certificate confirming that (a) there was an intention to prosecute and (b) that such intention was founded on a sufficiency of evidence. The Irish Attorney General was expected to act upon this note, without exercising any discretion and thereby simply rubber stamp the certificate of the British Attorney General. Of course this was the procedure that Deputy Taylor was concerned about last year and that is the procedure I referred to when I said that he had sought an Irish officer who would make this decision on the basis of a sufficiency of evidence and for very good reason.

This procedure had been agreed in principle between the two Governments and between the two Attorneys General but had not yet been implemented as the precise wording of the certificate of the Attorney General and the basis on which it was issued had to be agreed. Our Government and our Attorney General were then being asked to rely on the say-so of a British Attorney General, without question, and when the British Attorney General must be a Member of Parliament. I would remind Deputies of that fact.

Our proposals envisage giving the Attorney General an independent statutory function which he will exercise independently and in accordance with the best traditions of, and I quote from the Supreme Court, "this great officer of State with great responsibilities of a quasi-judicial as well as an executive nature". I hope Deputies will note the fact that the Supreme Court has very clearly stated that the Attorney General has responsibilities of a quasi-judicial as well as executive nature.

Debate adjourned.