This is a shabby and tatty Bill. It could usefully have as its Long Title the extradition (Amendment) massaging of Fianna Fáil consciences Bill. It represents an Irish solution to an Irish problem or, more accurately, a Fianna Fáil solution to a Fianna Fáil problem. It is a shoddy Bill that is, frankly, unworthy of the speech the Taoiseach delivered this morning. I have to say that the Taoiseach's speech in opening the debate was one that won considerable favour on this side of the House. Indeed, if the Taoiseach had turned his back on the Chair the occupant of the Chair would have had to ignore the slight because many of the remarks contained in that speech were not directed across the Floor of the House but were directed at those who sit on the Taoiseach's back benches. There is no need for the Taoiseach to inquire of this side of the House rhetorically what our attitude would be to the extradition of those involved in the Eksund affair. There is no need for those of us on this side of the House to be asked what our attitude would be to the hypothetical extradition of those involved in the O'Grady Kidnapping. There is no need for those of us on this side of the House to be asked what our attitude would be to the extradition of those responsible for the Enniskillen massacre. Those remarks could usefully have been directed, and were in reality directed, over his shoulder.
I welcome in particular the Taoiseach's indication that he does not see this measure as representing the last word on extradition and that should it be the case that the Bill, if it becomes law, will give rise to difficulties and render extradition unrealistically difficult, it would be the intention of the Government to come back. I commend the Taoiseach for that. I will explain why I describe the Bill as shabby and tatty. In this country we have been participants in extradition procedure since the early days of the State. Indeed, as the recently published book by Dr. Forde on extradition law establishes, we were in one sense active participants long before our Independence. That is understandable because extradition is a very important weapon in the armoury of any State against the fugitive offender or against the escaping convicted person. As transport and communications become more speedy and sophisticated, access to that weapon of extradition becomes all the more important.
We have had extradition for many years. We had extradition up to 1965 of a peculiarly informal kind. At that stage it was possible for people to be arrested on foot of a warrant, put in a Garda car and driven to the Border where they were bounced — I think that was the phrase used in the reports — across the Border with no prospect of judicial review whatever. That procedure was, quite understandably, disapproved of by our courts and the result was that the Oireachtas in 1965 enacted the Extradition Act of that year. It did so on foot of legislation which had been prepared by the now Taoiseach, Deputy Haughey, who was then Minister for Justice and it was steered through the Dáil by the now. Tánaiste and Minister for Foreign Affairs, Deputy Lenihan, who took over from Deputy Haughey during the course of the passage of that Bill.
It is that Bill that defines our position in regard to Prima facie cases; it defines our position in relation to the rules of specialty; it defines our position in relation to the question of lapse of time being a bar to proceeding. None of those provisions were found in any way objectionable or were the source of comment or the source of controversy until we found outselves discussing the extent of the political exception 12 months ago. It strikes me as curious that the Oireachtas and commentators are perfectly content to leave on the Statute Book without any analysis a measure that is apparently good enough for the average shop lifter or cheque forget but that for those who would plead a political motivation, those whose offences in many instances are far more heinous than those of the ordinary decent criminal, apparently, different standards are to apply.
The 1965 Act defines our position in relation to specialty, to prima facie and so on. It provides, both in relation to Part II and Part III, that we do not extradite for political offences, or offences connected with a political offence, the so-called political exception. That is an honourable tradition, it is one that is contained in just about every international extradition agreement and it was contained in the European Convention on Extradition of 1957. It is right and proper that it should be part of our law and it remains part of our law to this very day. However, the Act did not attempt to offer any guide or any definition as to what was a political offence no more than most of the international agreements did and no more than the European Convention on Extradition did.
Since that Act was passed all of us have been confronted with the spectacle of modern international terrorism and its manifestations whether that was the blowing up of school children in a bus in Israel or the murder of athletes participating in the Olympics in Europe or whether, within this island, it was the murder of people at prayer in Darkly or in Enniskillen. That has required a response at national and international level. The international response to international terrorism was the European Convention on the Suppression of Terrorism. That did not purport to define what was a political offence. Instead, it listed the series of exclusions and in doing so it was following a well trod path because there had already been that approach taken in various other Conventions, for example, Conventions dealing with hijacking of aeroplanes and so on and which had specifically prescribed that that offence was not to be regarded as a political offence.
The European Convention on the Suppression of Terrorism listed a series of offences and required that the contracting parties would not regard those as political offences, offences involving kidnappings, explosives, the use of automatic firearms and so on. We did not initially adhere to the European Convention on the Suppression of Terrorism. Our failure to do so has always been a source of discomfort. We explained our failure to adhere on the basis that we felt there were constitutional difficulties and, specifically, we thought that Article 29 of the Constitution which imposes on the State the obligation to accept the generally recognised principles of public international law might preclude us from adhering to a Convention. The argument was that it was a generally recognised principle of public international law that one does not extradite for political offences and, in so far as the Convention appeared to represent a retreat from that position, it might cause constitutional difficulties for us.
I have to say that I never found that a particularly convincing argument because it seemed to me that the most that can be said of public international law was that it permitted non-extradition for political offences, perhaps even that it encouraged non-extradition for political offences, but I do not see how it could have been argued that it actually specifically prohibited it. Indeed, there was at least one case where the Supreme Court took that view. However, there was a belief that there was a constitutional impediment to signing the European Convention on the Suppression of Terrorism. That did not mean we ignored the fact that this State was under threat from terrorists. There was a legislative response, the Criminal Law Jurisdiction Act, 1976, which introduced the concept of extra territoriality and provided that, in respect of various scheduled offences committed in Northern Ireland, prosecutions could be brought here. There have been a number of prosecutions under that Act.
When the Dáil was last debating the extradition question, a number of Members on the other side of the House expressed great enthusiasm for the use of the Criminal Law (Jurisdiction) Act, 1976, conveniently forgetting that when that legislation was being put through this House the Fianna Fáil Party denounced it in the most violent language, and anyone associated with it was seen as selling out, guilty of treachery and so on.
The early eighties saw this country unable to adhere to the European Convention on the Suppression of Terrorism, but we took domestic measures in lieu, the Criminal Law (Jurisdiction) Act which had its origin in the law enforcement commission which met in the aftermath of the Sunningdale Agreement. At that time the courts addressed the question of what was and what was not a political offence. It was another example of the courts picking up a hot potato which the Oireachtas had chosen to ignore. They did it earlier on some social issues, adoption, abortion and so on, and they did it again in this instance.
In the early sixties, during the case involving a Mr. Burke who had allegedly assisted in the escape of a spy named Blake, the Supreme Court, through the then Chief Justice Cearbhaill Ó Dálaigh, made the point that what was a political offence varied depending on the circumstances of the time. The eighties saw the courts picking up that view to reconsider what was and was not a political offence, and there were a series of decisions — the McGlinchey case, the Shannon case and so on.
The approach taken by the individual members of the Judiciary in those cases is not altogether on all fours. Understandably, some of them reached the same conclusions by different reasoning but the net effect of the decisions was that one had to look at the act which was alleged to be political and consider it in all the circumstances. If it was the case that ordinary civilised people would not regard the act complained of as amounting to political behaviour, the political exceptions would not apply and extradition could take place. Once the courts made that move it was incumbent on us to look again at the European Convention on the Suppression of Terrorism because, palpably, it was no longer open to us to contend that there were constitutional difficulties following the convention road, given that the courts had already gone at least as far as, and perhaps further, than the convention envisaged.
The circumstance in which we looked at the convention and our attitude to it was the Hillsborough Accord. The communiqué which accompanied the signing of the agreement recited what was expected to happen on various fronts, what was expected to happen in terms of the relationship between the minority community and the security forces, in terms of increased confidence on the part of the minority in the administration of justice in Northern Ireland and in terms of enhanced security co-operation between the security forces on this island. The communiqué went on to say that against this background the Irish Government indicated their intention to adhere to the European Convention on the Suppression of Terrorism.
When the Dáil debated this issue very little time was given to what was really the core of the Act, that is, what was to be regarded as political and what was not. Instead, the Dáil concerned itself with the question of a prima facie case, retroactivity and various other issues. If they were relevant either to the 1965 Act debate or to some proposals to amend it, they were irrelevant to an Act which was saying nothing at all about the 1965 legislation. That legislation went through the Dáil not without difficulty and it had the delayed implementation measure. Now, by common consent, it seems it will become operative on Monday night. Simultaneously, we are presented with this measure.
There have been accusations in this House of people changing their positions, that people who were in favour of a prima facie case when they sat on these benches are now against it, and that some people who sat alongside us on the benches opposite a year ago are now in favour. My position on this is quite clear. Twelve months ago I wanted to see in operation an effective system of extradition between this country and the neighbouring jurisdictions. I took the view at that time that the existence of a prima facie requirement would be incompatible with effective extradition, and I remain firmly of that belief.
I accept that during last year's debate there was a real concern to ensure that extradition would not take place for questioning but for the purpose of charge only. The Government shared that concern and responded during the Committee Stage debate. The Government's response was outlined in great detail by the then Minister for Justice, Deputy Dukes. He pointed out that we would be seeking from the Crown Prosecution Service and from the Director of Public Prosecutions a certificate that it was their intention to prosecute, that that intention was founded on sufficient evidence and that we would require as well as confirmatory note through diplomatic channels from the British Attorney General that the procedures envisaged had been complied with.
I regard those arrangements as perfectly adequate. I would be quite content to see the 1987 legislation come into force next Monday without any further ado, but that will not happen. Instead, we are to consider the question of statutory arrangements. Deputy Cowen suggested that all that was involved was giving statutory framework to what we had provided on a non-statutory basis. If that is all that is involved I have no problems with it. If the Government, having considered the matter carefully, think it necessary to provide these safeguards in statutory form, I will not quarrel with them, but I do quarrel with them on the details of the proposals they have made.
I am glad the Government have turned their back on the demand for a prima facie case and that they have rejected the wilder demands from their own backbenchers, but I believe the proposal they have come up with is objectionable in a number of respects. I specifically object to the role which is to be given to the Attorney General which is at least arguably unconstitutional and is certainly inappropriate. Our Constitution is very firmly based on the concept of separation of powers. There are areas which are the preserve of the Judiciary, areas which are the the preserve of the Executive and areas which are the preserve of the Legislature.
In countless cases, the courts have laid down that it is not acceptable for any of the organs of State to transgress into the territory reserved for one of the others. I recall, for example, in the debate on the Single European Act in the aftermath of the Supreme Court's decision that there was some sensitivity on all sides of the House that it appeared there was a tendency for the first time for the Supreme Court to involve itself in questions of foreign policy, which is not an area contemplated as being within their domain by the Constitution.
What is contemplated here is to involve the Attorney General in a judicial matter. I say that it is arguably unconstitutional because, while I accept that an argument can be made that since the existing arrangements which involve no requirement for a prima facie case have been found to be constitutional, the insertion of this extra procedure cannot be regarded as being unconstitutional. On balance, I do not believe that argument would succeed because the role provided for by the Attorney General is an unwarranted intrusion into the judicial domain.
There have been a series of cases where the courts have jealously asserted their role and indicated that they will strike down any attempt to interfere with them. There was, for example, the decision involving Mr. Padraic Haughey, brother of the Taoiseach, who succeeded in having struck down as unconstitutional legislation which purported to give to a committee of this House power to certify that an offence had been committed and leaving it to the courts to impose sentence afterwards. Perhaps most directly relevant, the courts have in recent times been considering the question of the role of the Attorney General and the Director of Public Prosecutions in interfering — I do not use that word in any improper sense — in a prosecution.
They did so specifically in a case reported in the 1974 Irish Reports, Costello v. the DPP. Effectively, what was at issue in this case was the power of the Director of Public Prosecutions and the Attorney General to send forward for trial. That was a power which had first been considered by the courts many years earlier during the Singer stamps controversy when a defendant called Shanahan came before the courts. He was not returned for trial by the district justice and the Attorney General exercised his statutory powers and sent him forward. Shanahan challenged that in the courts but he was unsuccessful as in the courts took the view that, since there was no constitutional requirement to have the safeguard of a preliminary investigation to allow the Attorney General to over-rule it, it did not constitute an interference with the justiciable controversy.
By the time the Supreme Court came to look at the issue again in Costello there had been significant judicial movement. The Supreme Court decision in the Costello decision is at page 452 in the 1984 Irish Reports. The court struck down that same measure as unconstitutional taking the view that the power of the Attorney General to send forward was not compatible because it constituted an interference with the judicial function. What is contemplated here is that the Attorney General will satisfy himself on two things, the existence of an intention to prosecute on the part of the requesting jurisdiction which I can see will be contended as being properly within the domain of the Attorney General. He is, after all, in touch with his own Government and through them in a position to ascertain the intention of the requesting Government. He is also required to consider whether that intention is founded on the existence of sufficient evidence. The determination of the sufficiency or insufficiency of evidence is quintessentially a judicial act and not one that can be appropriately delegated to the Attorney General.
The Minister for Social Welfare quoted at length from the Supreme Court decision in the case of McLoughlin v. the Minister for Social Welfare. He placed some reliance on the fact that the Supreme Court commented that he had powers which were quasi-judicial. There is no significance in that. All sorts of people have powers which are quasi-judicial and are required from time to time to act in a quasi-judicial manner. County Councils act in this way and so do the Garda when they issue taxi plates and so on. The reliance placed on that passage in the Supreme Court judgment is altogether misplaced.
There is a very real constitutional doubt about the validity of this measure. I do not say that the matter is altogether clear-cut or cut and dried but we must all be in very real doubt as to whether, if the Bill is passed in its present form, it will be constitutional. In those circumstances, what should we do? We should express our hope that the President will refer the matter to the Supreme Court under Article 26 and that the Government will undertake to the House that they will exercise whatever influence is available to them to ensure that the President will refer the Bill to the Supreme Court before signing.
That has happened here before. I recall, for example, that when the House was considering the rent restriction legislation which was designed to retrieve the striking down by the Supreme Court of the Rent Restrictions Act the House, conscious that it was in a very grey area of constitutional law, urged the Government to commit themselves to seeking a reference to the Supreme Court. The Government gave that commitment and the President, having consulted his Council of State, referred the matter to the Supreme Court and the court gave its opinion under Article 26 of the Constitution.
Given the very real doubts expressed from from different sides of the House about its constitutionality, doubts which, according to reports, also exist on the Fianna Fáil backbenches, the very least the Government can do is to arrange for its referral to the Supreme Court by the President. If during the course of this debate the Government can convince us that this sort of power can be exercised by a non-judicial figure, the question arises as to who that non-judicial figure should most appropriately be. It is the view of our party that it should be the Director of Public Prosecutions and that it should not be the Attorney General because of his political role. We have already been reminded in the House more than once this morning that in 1974 this House legislated through the Prosecution of Offences Act to remove from the Attorney General his functions in relation to criminal prosecutions and to vest those functions in the Director of Public Prosecutions because it seemed to the House at the time proper that the question of prosecutions should be deemed to be independent of political influence. We even went to the stage of making it a criminal offence for people to seek to exercise the decision to prosecute or not to prosecute by political means. If that is so in relation to a domestic prosecution how much more is it so when it comes to the question of extradition which is uniquely sensitive. It is singularly inappropriate that the Attorney General should find himself cast in such a role. To cast the Attorney General in such a role a would be, to borrow the language used in the Bill, oppressive and invidious to him.
Let us consider the situation in which the Attorney General could find himself. One suspects that the reason the Attorney General was picked was that there could be a nod and a wink exercise with Fianna Fáil backbenchers; that they could be told we are vesting these powers in the Attorney General because they all know him, can rely on him and can communicate with him, that if Deputies are concerned or anxious about a forthcoming case they feel they can walk into the Attorney General's office and talk to him. The Attorney General would I am sure, put those considerations out of his mind but it is quite wrong that he should be placed in that position. Placing him in that position with the near certainty of political representations can do nothing to increase public confidence in the independence of our legal system from political control, that is, the possibility of political influence being brought to bear to try to prevent a prosecution.
It is equally the case that there could be political pressures in order to achieve an extradition. Deputy Taylor commented that if the Attorney General found himself grappling with a decision as to whether to issue a certificate at a time when the Anglo-Irish Agreement was under review, it would be very hard for him to close his mind to the political considerations that would apply. We must remember we live in a world where Governments are subjected to sometimes conflicting pressures, where people making decisions cannot always focus on the specific merits but are sometimes obliged to take account of matters that should, strictly speaking, be extraneous. It is not so long ago that European Foreign Ministers when considering the question of butter quotas found themselves embroiled in the question of where those involved in the Rainbow Warrior affair were going to spend their sentence. That was a case that involved what one would have thought was the most bizarre linkage between access to the Community of New Zealand butter, the quotas the various countries were seeking and the French interest in having their admitted agents serve their sentence in congenial surroundings. One would have thought that all of these issues would be considered separately but they all got nicely tied up with the result that the New Zealanders got their butter in, the French got their agents to the island in the sun and we got some modifications of what we were looking for with regard to our production quotas.
An Attorney General is potentially under political pressure either to extradite or not to extradite. In either event it is quite inappropriate that that perception could exist. It would be altogether preferable, if the Government can convince the House that these powers can be vested in any non-judicial officer, that the powers should be vested in the Director of Public Prosecutions, an officer appointed under legislation passed by this House because of his impartiality, his objectivity and his distance from politics and the political system. I hope the Government will think about that between now and Committee Stage.
I hope that this bluffing and nonsense we heard from the Taoiseach last night does not really mean that the Government are proposing to treat the Committee Stage as a rubber-stamp exercise and that they are not prepared to take on board serious suggestions from this side of the House. We will not be bluffed. The role of the Attorney General is inappropriate and we will make that case with vigour on Committee Stage.
I have one or two general comments about the way in which extradition operates between this State and the neighbouring jurisdictions. Perhaps because of our difficulties in adhering to the European Convention on the Suppression of Terrorism there has been some tendency on the part of commentators to see us as being permanently on the defensive. I do not see any need to be on the defensive. The principle of non-extradition for political offences is an honourable one, one to which the British adhere with enthusiasm, with such enthusiasm that they refused to sign the Convention against Genocide because they wanted to leave open the option of regarding genocide as a political offence. It ill becomes a country with that tradition to lecture others.
In the course of this briefing, when the Taoiseach was apparently either trying to threaten the Opposition or his own backbenchers last night, he commented that a series of cases in recent times had gone wrong and that there had been all sorts of confusion such as we saw on the streets of Dublin and more recently in Longford and Cavan, and he suggested that this Bill would be a safeguard to prevent a repetition of that. It would be nothing of the sort. Whether it goes through in this form or any other form, that will not be the case. The only safeguard against those sort of scenes taking place again is if the British requesting authorities get their act together. It is ludicrous that they are apparently incapable of producing a warrant in order, backed by the requisite documents that are set out in considerable particularity in the 1965 Act. The drafting involved could be done by a second year law student and yet in case after case the warrants are found to be blatantly defective. One cannot but believe that that sloppiness stems from a feeling that somehow or other the courts here are not to be taken too seriously, that the standards of exactness that would be required for Bow Street magistrates or for the Old Bailey are unnecessary when it comes to dealing with those ex-colonial countries, or however they are perceived.
I want an effective system of extradition between this country and Northern Ireland and between this country and Britain. Specifically I want a system that will allow for the extradition of those alleged to have been guilty of heinous terrorist offences. But I demand that the requirements of the 1965 Act, and any requirements that are inserted by this Bill, should be scrupulously observed by the requesting authorities. It should be made quite clear to the British authorities that, if they fail to comply, they have no one but themselves to blame and attempting to put the blame on the Irish courts, the Garda Sióchána or anybody else just will not wash. We have at present and will have — whatever happens to this Bill — a streamlined system of extradition to Britain, a system that is not, in truth, extradition at all but one of backing of warrants. In those circumstances it is incumbent on the requesting authorities to see to it that every requirement of the Act — because they are few enough — is observed in every detail.
I would have been perfectly content to have allowed the 1987 Act to come into force without further legislation. If the Government want to give a statutory basis to proper safeguards I have no particular quarrel with that but I do quarrel, and quarrel very seriously, with the manner in which they have set about it. I hope very much that they will think again before they place their Attorney General and future Attorneys General in such an invidious position.
