Before lunch the Taoiseach made the point that the Progressive Democrats in their amendment were proposing to offer the Minister for Justice the discretion to say when there was sufficient evidence in extradition cases. This is quite incorrect. We are not proposing that. We are saying that the Minister would set out the technicalities governing the case and set the rules before the court and that we would be quite happy if a rules committee of the District Court were to do so instead. This is quite different from inferring that the Minister for Justice would carry out the power which this Bill is giving to the Attorney General.
Extradition (Amendment) Bill, 1987: Committee Stage (Resumed).
Debate resumed on amendment No. 1:
1. In page 2, before section 1, to insert the following new section:
"Part I
Evidence in Extradition Proceedings in relation to Offences
1. —(1) In any proceeding under Part III of the Principal Act in respect of any warrant for the arrest of a person who is for the time being a citizen of Ireland and is accused of an offence, a final order shall not be made under section 47 of that Act unless documentary evidence within the meaning of this section shall have been produced to the District Court.
(2) In this section, `documentary evidence' means an affidavit or statutory declaration setting forth reasonable grounds for believing that the offence to which the request for extradition or warrant, as the case may be, relates has been committed and that the person before the District Court committed it.
(3) The Minister may by regulation made under this Act in relation to `documentary evidence' provide for any or all of the following matters:
(a) the persons or classes of persons who may swear an affidavit or make a statutory declaration,
(b) the persons before whom an affidavit may be sworn or a statutory declaration made,
(c) the form of an affidavit or statutory declaration and the manner and place in which it is to be sworn or made,
(d) the means of knowledge required of a deponent,
(e) the documents, if any, that shall be exhibited in an affidavit or statutory declaration,
(f) such other matters as appear to be necessary or expedient for the proper working of this section,
(g) the revocation or amendment of any order made under this section.
(4) A document purporting to be an affidavit or statutory declaration for the purposes of this section shall be received in evidence by the District Court when tendered without further proof and it shall be presumed until the contrary is shown that the document was made for the purposes of this section and in accordance with the provisions of any order for the time being in force under subsection (3) of this section.
(5) In considering whether or not an affidavit or statutory declaration sets forth reasonable grounds for believing that the offence, to which the request for extradition or warrant relates (as the case may be), has been committed and that the person before the District Court has committed it, the Court shall have regard only to the matters set out in the affidavit or statutory declaration and any matters duly exhibited therein.
(6) Notwithstanding any rule of law or practice to the contrary a person who swears an affidavit or makes a statutory declaration for the purpose of this section shall not be liable to be summoned before the Court or cross-examined thereon in the course of any proceedings under Part III of the Principal Act.
(7) Every regulation made by the Minister under this Act shall be laid before Dáil Éireann as soon as may be after it is made and shall not have effect unless a resolution approving the said regulation is passed by Dáil Éireann.
(8) In this Act `the Principal Act' means the Extradition Act, 1965.".
—(Deputy D. O'Malley)
That is not what we said. You are giving power to the Minister to nominate anyone he wishes.
We are giving power to the Minister to nominate whom he wishes. In our amendment the Minister would have to state procedural matters, like rules of the District Court.
I am sorry, Deputy. I do not like to contradict you across the House but subsection (3) (a) of your amendment says: "the person or classes of person who may swear an affidavit or make a statutory declaration". You are giving to the Minister for Justice the power to decide what person or classes of persons can swear the affidavit so he can nominate anyone he likes for that purpose.
He would be doing it openly. For example, in Great Britain it would be the Chief Constable who would stand over the affidavit. When the matter goes into the Attorney General's office we do not know what will happen or what the determinant of sufficient evidence will be.
I will deal with that later. I do not want to be contradictory.
I merely wanted to correct the misunderstanding which I think has arisen on this point.
The other issue I would like to refer to is the deplorable effect which I think this Bill is having on Anglo-Irish relations. The comments of the British Prime Minister, Mrs. Thatcher, in the House of Commons yesterday were unhelpful. They were ill-informed in that, even with the passage of this Bill in whatever form, our extradition procedures will still be among the most favourable in the world. What I deplore most of all, despite these unhelpful comments by the British Prime Minister, is that Anglo-Irish relations have returned again to the stage where members of this Government and the British Government are shouting at one another across the Irish Sea. The whole benefit——
I sought to dissuade Deputies earlier this morning from extending this Committee Stage debate into what might be regarded as Second Reading speeches. I said that references to Anglo-Irish relations would be in order but we cannot have a debate on that subject on Committee Stage of the Bill. I have allowed a passing reference to it but that is all.
There is a connection between the Extradition (Amendment) Bill and Anglo-Irish relations because in Article 8 of the Anglo-Irish Agreement and Paragraph 7 of the Joint Communique we acknowledge that we would accede to the European Convention on the Suppression of Terrorism.
I accept that but it should not give rise to Second Reading speeches.
What is deplorable about what has now happened is that these sensitivities between the two countries could not have been dealt with within the Anglo-Irish Conference. The Conference when it was set up was intended to deal with matters like this between the two Governments but what seems to have happened, most regretfully in this case, is that we have taken a unilateral action which is not in keeping with the spirit of the Anglo-Irish Agreement.
Will the Deputy please get back to the amendments before the House? I am not going to allow a debate on Anglo-Irish relations on Committee Stage of this Bill.
I will now come to the substance of amendment No. 1 which has been put forward by this party——
Thank you, Deputy.
——and which basically proposes that a district justice in open court would assess the extradition matter rather than the Attorney General within his own office. We find that having the Attorney General in charge of this procedure will not satisfy Irish public opinion on this matter. He will have a discretionary power which he will exercise privately without any access to the Irish courts for the person whose extradition is sought. In framing the amendment we went out of our way to ensure not to seek a full blown prima facie requirement and we think we have achieved that objective by stating in our amendment that a person could go before a district justice, that an affidavit setting out the facts should be brought forward, and that witnesses could not be summoned. We believe that the amendment would not in any way slow up the extradition process. In our view it will meet the two absolute requirements which all parties want to achieve, workable extradition and a safeguard for our citizens in that they will have redress to a court on such an important matter.
We would welcome some indication from the Government that they would favour the President referring the Bill to the Supreme Court in accordance with his power under Article 26 of the Constitution. This is an extremely important point that has not been dealt with by the Government in the form of an amendment, and rightly so, but it would be most helpful if the Taoiseach, or the Minister for Justice, indicated if they would favour adopting that procedure in the case of this Bill. If the proposal concerning the role of the Attorney General turns out to be unconstitutional, as we believe it will, it would have the most undesirable effect of bringing down with it Part III of the Extradition Act, 1965. The result would be that far from having unworkable extradition procedures we would have no extradition between Britain and this country at all.
Hear, hear.
That may be the desire of some of the backbenchers in Fianna Fáil but it is a great fear for members of our party. That is why we have reservations, which are shared by members of the Fine Gael Party, on the Attorney General proposal.
I should like to deal with one or two comments made this morning by Deputy O'Malley, despite the fact that he was asked to curtail his remarks on the Anglo-Irish Agreement. I feel that in the interests of accuracy and truth I have no option but to rebut the allegations made by him.
On a point of order, while I do not want to be disruptive I should like to know if the Minister intends to answer the points raised in connection with the amendments before the House in addition to his response to the remarks by Deputy O'Malley.
I suggest that the Deputy wait and see what the Minister is going to say.
The Deputy should be a little patient. The Deputy will need far less patience with me than I needed when listening to him.
We sat here all morning listening to the Deputy.
We have to wait and see what the Minister is going to say. I have no way of looking into the Minister's mind and telling the Deputy what he is going to say.
Will it be tomorrow at 1 o'clock?
During the course of his remarks this morning Deputy O'Malley said he had it on good information from a reliable source that the day-to-day apparatus of the Anglo-Irish Conference was falling into disrepute.
Disuse.
The Deputy went on to suggest that it was being gradually run down and being let die by malnutrition. He said that there did not appear to be any desire on the part of the Government to make it work and some other remarks of that type. I want to reject totally the allegations made by Deputy O'Malley. I should like to suggest to him that before he makes such mischievous remarks in the future he should at least go to the trouble of reading what was said by the Secretary of State for Northern Ireland, Tom King, on 30 October during the course of his speech in Oxford. He said that the agreement and the Anglo-Irish process which they had carried forward with two Irish administrations marked a watershed in his Government's policy towards Northern Ireland and had inaugurated a new more creative period in Anglo-Irish relations as a whole in which we could co-operate more closely together.
There was not much sign of that yesterday, was there?
I am afraid the Deputy is over-influenced by the British tabloids at present. If he was a little more discerning with regard to his sources and had a little more concern for the truth he would not have been making the wild allegations he was making this morning. They are totally untrue. Everything that has been said publicly by the Secretary of State for Northern Ireland goes to show that what the Deputy was saying was untrue. If the Deputy wishes to play politics on this issue that is another matter but it should be known why he is doing that.
These amendments all relate to the establishment, in one way or another, of a prima facie case in our courts before extradition can be granted. The fatal objection to the imposition of a prima facie requirement is that it would be a very serious obstacle to extradition, as it has proved to be in cases in British courts down through the years. During the course of Second Stage on this Bill yesterday, I pointed to procedural difficulties which would arise in relation to the establishment of a prima facie case in the District Court by foreign prosecuting authorities in an extradition case.
There has been a certain amount of difference of opinion in the debate as to whether witnesses would be required to be produced in support of sworn affidavits before the court. I would maintain that, irrespective of how the prima facie requirement would be couched, the reality would be likely to be that the person whose extradition is sought would be in a position to raise such issues about the adequacy of the case against him, that the foreign prosecuting authorities would be forced to produce witnesses or forfeit the case for extradition. Leaving aside for the moment the argument as to whether there would be a requirement to produce witnesses there can be little doubt but that this arrangement, even if it were confined to documentary proofs, would be likely to represent a considerable increase in the delay and complication associated with extradition requests. It is my fear that any variation on the prima facie requirement which would involve evidence having to be established in the relevant court proceedings would be likely to result in the failure of legitimate requests for extradition. I do not think that this is an acceptable situation for us to contemplate at any time but it is particularly unacceptable at this time when there is a very wide public consciousness of the need to bring terrorists before the courts to answer for their crimes in every part of Ireland.
I have already in the debate on Second Stage referred to the difficulty which would arise for the prosecuting authorities in a foreign jurisdiction in preparing a book of evidence in compliance with our court rules and procedures in the very short timespan that would be available to them. We all know already the potential for error and omission in relation to the production of the relatively simple extradition warrants. The potential for mistakes in the production of a complete book of evidence must be, therefore, all the greater.
There is public concern about insufficient safeguards in our legislation. Careful examination of this question indicated that, despite the attractiveness in principle of the requirement, it would make for an undue restriction on extradition arrangements between this country and Britain and Northern Ireland. I do not make this statement lightly. We have looked at this very closely and are absolutely convinced that the prima facie requirement is simply not a viable option.
After examining this question in detail we have come up with an option which is workable and which would ensure that extradition applications would proceed only where there was a clear intention to prosecute and where that intention was founded on the existence of sufficient evidence.
Amendments Nos. 1 and 3 are proposals by the Progressive Democrats and the Labour Party to insert a new section requiring documentary evidence being presented in court. I fully appreciate that the proposers of these amendments are conscious of the danger that a full prima facie requirement is likely to be unsatisfactory in extradition cases and it would appear they are offering this new section as an alternative. Unfortunately, as I pointed out in my reply on Second Stage of the Bill last night, the production in court of affidavits and declarations of the type suggested would be bound to invoke a response from the defendant and his legal representatives which would surely, in turn, lead in practice to further evidence of the case against him having to be adduced. Otherwise doubts would be raised as to the case against the person and those doubts would be left unresolved.
One should acknowledge the ingenuity which the proposers of this amendment have put into their efforts to confine the evidence which would be required to be produced to documentary evidence only and I respect the intent behind that. However, I am far from being satisfied that the concept could be made to work without undue complication and without posing a decided obstacle to extradition.
The amendment by The Workers' Party is to insert a simple prima facie requirement into Part III of the 1965 Act. This proposed amendment does not have the merits of the earlier amendments in seeking to confine the requirement for prima facie evidence to documentary proofs and it is open to all the objections to which I referred on Second Stage about the impracticality of a simple prima facie requirement.
As I said in my reply to the Second Stage debate, ultimately the problem about the prima facie requirement is that in legal systems similar to ours it has tended to afford an excessive degree of protection to the accused. It has proved very difficult in practice to apply the requirement successfully when there is an external prosecution system involved. I am very much afraid that any of the variations upon a prima facie requirement that we have heard advanced during this debate would be likely to suffer equally from such disadvantages in practice. Obviously, I cannot accept any of these amendments.
I want to add a few words to what the Minister said. I want to deal with the amendment by the Progressive Democrats. Frankly, I find it mystifying what is intended by amendment No. 1. Deputy O'Malley made a lot of play about the Attorney General exercising certain functions and coming to an opinion. He was very melodramatic about this and painted a totally artificial picture of the Attorney General in a secret place coming to these decisions. That does not stand on its merits because, by the very nature of his office, the Attorney General, often has to come to decisions and form opinions.
I will leave that aside and turn to what the Progressive Democrats propose instead. The amendment specifically says that the Minister for Justice can, by regulations, not in the statute, decide who can swear an affidavit which will go before the court and be the documentary evidence on which the court will decide. Maybe I am wrong but that seems to be leaving this area as wide open as a gate. The Attorney General has some tinge of political office about him, but the Minister for Justice is a totally political person and the Progressive Democrats are prepared to give this political Minister for Justice authority by regulation to decide that anybody can swear that affidavit.
The Taoiseach knows perfectly well these are the rules of the court and nothing else.
He could be a minor official in the Department of Justice; he need not even be an official of the State, but the Minister could, by regulation, decide that that person would have the authority to swear an affidavit and that affidavit would be the matter on which the court would decide. I may be wrong but that seems to be totally and utterly ridiculous. If there is an objection to the Attorney General having some function in this matter, surely there must be infinitely more objection to the Minister for Justice, by regulation, deciding that anybody he thinks can exercise this function. I wanted to make that simple point at this stage.
There are a number of matters I want to deal with in response to the remarks made this morning on amendment No. 5 in the name of The Workers' Party. The first point was raised by Deputy Kelly in regard to initiating proceedings or a decision not to initiate proceedings by a member of the Garda Síochána, and saying that that qualitatively was no different from a decision of the Attorney General in relation to initiating proceedings for extradition. While that may be so, there are greater implications to draw from a decision to extradite or to commence proceedings to extradite. We want to be clear in our language here.
The decision to commence or not to commence proceedings with regard to extradition will lie, we are told, actively with the Attorney General, although I do not accept that from the reading of the section. That active decision is there and following from it are consequences far greater than the consequence of initiating criminal proceedings. This is why the debate about safeguards with regard to extradition has been entered into. The consequences are that a citizen will be removed from our jurisdiction, from all the protections in our written Constitution, to the jurisdiction of another country to be tried according to the rules of that country. That is of far greater consequence than the initiation of criminal proceedings in the domestic courts. It is because of the quantitative differences that we are discussing the notion of safeguards and to what extent they should be applied. It is for that reason that Britain, in her own legislation dealing with extradition, relies on the prima facie safeguard for her citizens when dealing with other countries, over 70 of them.
I do not accept the argument by analogy and, as a legislator and politician, I am not interested in getting into a debate on the constitutionality of the role of the Attorney General in this regard. That is for another tribunal on another day. Well and good, if the lawyers in the Four Courts want to make hay of this, that is their business, but our job is to look at the overall scheme of things. I want to say to the people who say there is a comparison between a police officer investigating or initiating and the Attorney General initiating or deciding to initiate within our jurisdiction, that there is a vast difference between that and the implications that flow from the decision to commence proceedings with regard to extradition.
Deputy O'Dea said he was at a loss to understand my remarks with regard to the Attorney General's role in the McGlinchey affair. I have no argument to make with the Supreme Court findings that the antics of Mr. McGlinchey were anything but political — they certainly were not the actions of a mad terrorist. What I am concerned about is the subsequent events which transpired in the McGlinchey saga. Eventually, having been located in Ennis after a shoot-out, a decision was taken at the highest level, in consultation with the Attorney General, not to prosecute him in this jurisdiction at the first stage for offences he had undoubtedly committed and was subsequently convicted for. During his apprehension and arrest in Ennis, it was decided he would be taken before hastily convened High and Supreme Courts over the weekend — before the courts could reassemble themselves in the normal course of their business on the Monday morning, sit at midnight and have the man transferred out of our jurisdiction without any consideration or time taken to investigate legitimate and properly pursued legal arguments that Mr. McGlinchey was concerned in articulating before our courts at that time in relation to the propriety of the intentions of the authorities to remove him from the jurisdiction. The decisions not to prosecute for offences clearly committed in the course of his apprehension, to remove him on foot of the then existing extradition warrant as opposed to trying him here initially, in regard to requesting the convention of the Supreme Court late at night and then moving him without delay over the Border, were all taken in clear consultation with the Attorney General. They helped to illustrate the fact that if we are advancing the Office of the Attorney General as a potential safeguard for persons threatened with extradition, the McGlinchey affair clearly illustrates that it can be a very thin safeguard indeed when — to use a horrible expression — the chips are down.
I have no doubt that similar events will arise in future. Those kinds of pressures and circumstances will leave us in the position where improper decisions will be taken from the point of view of the safeguard of the person sought on extradition. It is, in the Minister's own words, why we are here, accepting something less than Fianna Fáil advanced and argued for less than 12 months ago. In 1986 Fianna Fáil were all in favour of a prima facie case but now, because events are more serious in regard to terrorism, the Government believe they must persue something less than a prima facie case, although things were just as bad in regard to terrorism here in 1986.
In regard to the point of referral to the Attorney General, in answer to an observation by Deputy O'Dea, penal statutes are by fundamental first principles construed strictly and I have no doubt that that is the type of construction which will be put on this legislation when it comes to be reviewed by the courts. It will be asked if it was the specific intention of the Legislature to ensure that all warrants are referred to the Attorney General and why the Act did not specifically say so. It does not and, for that reason, I am at a loss to know, when it is the expressed desire of the Government that it should involve the Attorney General in all instances, why it does not simply say so. No explanation has been given to the House as to what was in the mind of the artful draftsman when he employed the double — and in some instances, if one can understand the wording of the section, the treble — negative to try to introduce into legislation a positive duty on the part of the Attorney General.
The final point I want to make is in relation to the Minister's reservations about the need for prima facie. The more he advances his reasons against the notion of prima facie, that it will be an obstacle, create an oppressive load on the process and will open up the potential for mistakes, the more I am convinced that the motion of the Attorney General is simply a device. The more the Minister denigrates the notion of the undesirability of an independent court inquiry into the sufficiency of a case, the more I am convinced that he is foisting upon us a mere rubber stamp through the office of the Attorney General which will involve virtually no inquiry. I cannot put the matter any further but I am utterly at a loss to understand the persistence of the Minister and the Taoiseach in suggesting that a process that is engaged in on a daily basis in District Courts around the country, which in no way delays the prosecution of indictable offences, can be presented in the context of extradition as being oppressive and unduly obstructive.
I again put down a challenge to the Minister. Since the Costello judgment on the restriction of the right of the Director of Public Prosecutions and previously the Attorney General to override a decision of a district justice on a preliminary investigation ruling, there have been very few indictable cases discharged or arrested by district justices at the conclusion of the preliminary investigation when they come to read books of evidence. Despite all the artful devices, arguments and counter-arguments presented by lawyers for defendants in preliminary investigations, the time honoured phrase used by district justices is "all that is very well but it is a matter for the trial judge at the eventual hearing". The district justice is only asked to decide if there is a sufficient case and if the documentation discloses that there is a case of substance which indicates that a trial can be embarked on. I have no doubt that a reliance on what I explained previously is an internationally accepted mode of conduct of extradition proceedings and will not present the slightest difficulty or obstruction to the process of extradition. It will afford our courts the opportunity to safeguard the rights of persons apprehended and sought on extradition for removal out of this jurisdiction. It is a meaningful means of supervising that process which will present no administrative difficulties whatsoever. The final suggestion of the Minister to invoke the English experience is the most laughable of all, to suggest that Britain is getting out of it because they have had a hard time with their colonies is a lamentable excuse.
On a point of order, as I said at the beginning of the debate this morning, there are 26 amendments and six sections and we have spent three and a half hours discussing three of them. I appreciate that the Order of the House does not allow for the question to be put at a particular time but, in fairness to everybody, and for the Bill to get a proper and adequate discussion, Members on this side of the House should behave more reasonably and allow us to move to other amendments. We could talk all day and all tomorrow about those three amendments. Our amendment was not grouped with the first three amendments and we have not had an opportunity of discussing it. I do not deny the rights of others to discuss their amendments but unless we can have an assurance that there will be more time on Committee Stage or that the question will be put, we will never be finished. We feel obliged at this stage to ask that the question be put unless there is an agreement about fairness in the division of time.
Put down a motion to extend the time.
The Deputy raised a point of order but the order has been made and the Chair has no responsibility in the matter except in so far as any contributions may be deemed to be out of order. In that regard, I was about to announce to the House that, as far as I was concerned, Deputies were developing points to a position where it would exclude opportunities for other people to make shorter and more relevant contributions on Committee Stage. The point made by the Deputy is one entirely for the Members of the House and Deputy Barrett can personally ask that the question be put and the Chair will adjudicate on it. I had indicated that I was calling Deputy Cowen and I also indicated that I might give Deputy O'Malley an opportunity of making a comment. I know that Deputy Taylor and Deputy Blaney also wanted to speak. Deputy Barrett having made his point should leave it to the good judgment of the Deputies whom I mentioned and see what he might do following that. We will all accept that the point has been reached where anything worthy of being said has been said and that we could agree to move on to the next business.
To be fair to everybody, maybe the Whips might meet at this stage and see if some sort of time can be agreed for this group of amendments to end and we could then move on to the next lot.
Does that include The Workers' Party Whip?
On my calculations the total time allowed for the whole Committee Stage is ten and a half hours. In order that the thing be done properly it is desirable that somewhat more time than that be allowed for Committee Stage. It could be done by continuing tomorrow on Committee Stage up to sometime tomorrow night and having the Report and Final Stage on Friday morning. Otherwise we are left with over 20 amendments to be dealt with in about six hours.
The Government view is that we have given fairly adequate time and it might be reasonable at this stage to see if the Whips can decide at least if these three amendments can be brought to a conclusion at some stage, and then we will see how we will go on from there.
In that spirit, I suggest that these three amendments be put not later than 4.45 p.m.
The Whips will have to talk about that.
I will now call on Deputy Cowen who is going to give the headline on brevity.
Whatever about brevity, I am glad to be allowed in, having waited in the wings since 11 a.m. That is more a reflection on someone else's brevity rather than on mine, which might or might not arise.
All the melodrama on Second Stage about the role of the Attorney General has dimmed somewhat in view of the lack of credibility that can be given to such statements. Under Article 30 of the Constitution the duties of the Attorney General can be increased either under the Constitution or by law. What we are doing is not something that was not contemplated by the Constitution.
With due respect to the Director of Public Prosecutions his duties relate to functions in this jurisdiction. Because of the administrative arrangements agreed under the 1986 Bill the Attorney General is already involved in the vetting of warrants and accompanying documentation before the endorsement of the warrant. There should not be an objection to the Attorney General pursuing those responsibilities on a statutory basis as outlined in this Bill. The administrative arrangements in the 1986 Bill meant that the British Attorney General was in informal contact with our Attorney General before a warrant was actually issued and that there would be a tacit agreement that there was sufficient evidence on which to endorse the warrant and have it served on the defendant. The arrangements in operation before this amendment Bill was brought to the House were on an Attorney General to an Attorney General basis. The Attorney General in Britain scrutinises extradition requests there. I do not see the need to object to this Bill, or to object to our Attorney General scrutinising warrants in the same way as does his counterpart in Britian.
The decision by this Government to give a statutory basis to an arrangement already in operation under the 1986 Bill is correct. Clearly the Attorney General is the person who should get that statutory responsibility. As the Minister for Justice pointed out in his Second Stage speech, the responsibility for prosecutions with an international dimension is already vested in the Attorney General. The Minister mentioned various Acts including the Official Secrets Act and the Criminal Law Jurisdiciton Act, 1976. The Minister's point showed that this is not a novel idea in relation to international offences.
The Progressive Democrats put up an argument that the Attorney General under this Bill would be involved in a judicial function. On balance, as Deputy Kelly said, it is very much more likely that this would not be considered as a judicial function. Section 2 of the Bill requires the Attorney General to form an opinion as to two matters only, that there is an intention to prosecute and that that intention is based on the availability of sufficient evidence and that the evidence will be such evidence as the Attorney General deems appropriate in any given case. Deputy McCartan said that this was a rubber stamp procedure. If the Attorney General is empowered to seek such evidence as he deems appropriate in any given case so that he can be satisfied that there is an intention to prosecute based on sufficient evidence, the flexibility in that provision ensures that it will not be a rubber stamp procedure. Deputy McCartan is over-stepping the mark in dismissing the provision in that way. Under this Bill the opinion of the Attorney General must be given before an endorsement of the warrant.
Deputy McCartan believes that the wording does not allow for the compulsion on the Garda Commissioner to get the consent of the Attorney General. Perhaps Deputy McCartan would read the transcript of Deputy Kelly's Second Stage speech and he would see that Deputy Kelly believes that there is that requirement on the Garda Commissioner. I will not go into it any further than that. Having listened to Deputy Kelly's contribution on that point I am satisfied that a Garda Commissioner will not endorse a warrant without the opinion of the Attorney General. That being the case, I fail to see how the Attorney General's formation of that opinion can be deemed to be a judicial function, because the warrant is not valid in this jurisdiction until such time as there is an endorsement of that warrant. If that is the position, any involvement of the Attorney General prior to endorsement of the warrant cannot be deemed to be in the judicial domain because no judicial process, no legal document, is in existence at the time of the formation of that opinion.
Therefore, the judicial controversy about which everybody is talking, I contend begins at the point at which the Garda Commissioner endorses the warrant. If the Attorney General gives his opinion prior to endorsement of the warrant I fail to see — on the basis of logic if not law — how he can be deemed to be performing a judicial function in any way when the subject matter to which this function is being attributed is not even a legal document at that stage. That is my understanding of the position. That is the way I worked it out in my head. If it is inaccurate I shall be glad to hear somebody else propose something different. If the warrant is not endorsed, it has not been issued in this jurisdiction, then in what way can the opinion of the Attorney General be deemed to be a judicial function, because the judicial process has not begun at that stage?
The fact of the matter is that, in forming his opinion, the Attorney General is involved simply in the scrutiny of evidence, he is not involved in committing a person for trial. That happens only on endorsement of the warrant, on its being served on the defendant, on his being brought to the District Court to satisfy the relevant district justice that, first, it is an extraditable offence, that there is a corresponding offence in the other jurisdiction and that the constitution of the warrant is valid. Within 15 days he can go to the High Court seeking a habeas corpus application to ensure that he will not be extradited. Committal for trial would begin only when that person was over on the other side. It is conceivable that a prima facie case could be proven, a person be brought over to the other side and no proceedings begin against him; it is not likely but it is conceivable. For that reason, since the Attorney General is not involved in committing anybody for trial under the additional role he will play under the terms of this Bill, I fail to understand how he can be brought into the judicial domain on that basis.
In relation to the prima facie case — which is the bone of contention — and the amendments put down and in regard to the Progressive Democrats' amendment, my understanding is that written submissions will be made in the District Court but it would not be open in any way to the defendant to question what is contained in those submissions. The fact that they were taken on affidavit and had been sworn before a commissioner for oaths would deem them to be fairly accurate. But it would not be within the remit of the defendant to seek oral evidence on those written submissions. It would appear to be the case that if what is alleged against a defendant were true then there is an assumption that there is a sufficiency of evidence to extradite him and he would be sent off. I do not believe that a written submission is superior to the highest law officer of the land examining the position before a warrant is issued at all. Perhaps that is one point that has been missed and maybe one of the pluses in having the Attorney General involved under the terms of this Bill. His involvement affords us an opportunity to ensure that no warrant issues. Even if there was a prima facie case without the safeguard of the Attorney General's involvement, once a warrant is sent from England and endorsed by the Garda Commissioner, that person will be immediately subject to the extradition process, he will have to go into the District Court, face that situation, go to the High Court and face that situation. Automatically there will be a process set in train even with a prima facie case. The involvement of the Attorney General means that he can ensure that no warrant at all will issue. Where, on the face of it, there is not a sufficiency of evidence, there will be no question of a warrant being issued against a person and he having to defend himself. The onus will be on him to prove that he should not be extradited once the extradition process begins. The Attorney General's function will be to ensure that the warrant will not issue in the first place. Surely, in the majority of cases to which it will apply, that constitutes a very real safeguard? It will ensure that the process will not begin at all. If that is not deemed to be a safeguard I do not know what is.
The prima facie requirement, which as Deputy Taylor says does not constitute a very high standard of proof — which it does not — would still ensure that that person would have to go through that process, could be extradited on a very low level of proof and sent off. That is the practicality of that requirement. There is a big mystique about what is a prima facie case, as if that constituted the solution to all our problems. I would suggest that the Attorney General's role will constitute a much greater safeguard because he will be working independently, examining the evidence and if it is not found to be sufficient, then no warrant will issue. If that is not as good a safeguard as can be got I do not know what is.
There appears to be a problem with regard to the prima facie case on the basis that the country or authorities seeking extradition would require the book of evidence to be collated fairly quickly under their rules of evidence.
I intervene to inform the Deputy that his time has practically expired.
Certainly I have not taken even a quarter of the time other speakers have. I have taken about 10 minutes to make approximately five points.
The final point I am making is that the book of evidence will have to be collated fairly quickly under the laws of evidence of the country seeking extradition. What could happen is that people would be extradited purely on legal technicalities without going into the merits of the case at all. To my mind there are some pluses to the prima facie argument. I advocated them last year and again recently. However, there are also minuses which have been pointed out to me and that is one of them.
If we are serious about extraditing people who should be extradited if there is sufficient evidence against them, then the prima facie rule could detract from that case if the legal technicality argument is to take over because of the differences in rules of evidence. Take the example of some continental countries where hearsay evidence is allowed. We do not allow it. We could have people coming from those types of jurisdictions not acquainted with our rules of evidence. The argument could be made that that is their problem and I accept it.
This prima facie evidence requirement does not constitute a full solution. It is not the panacea that Deputy McCartan would have us believe it is. In practical, pragmatic terms — and it is that that will matter in the case of defendants about whom we are talking — the Attorney General's involvement, which will ensure that a warrant will not issue in the first place for people who are clearly innocent, against whom there are no grounds, is the best safeguard that can be had in present circumstances.
In case Deputy Cowen felt there was an exclusion order on him until I had the pleasure of calling him, I had to indicate to him, at the time of calling, the new circumstances in which we found ourselves. In calling Deputy Blaney I presume also to remind him that the House has already agreed that the question will be put at 4.45 p.m.
Sorry, a Leas-Cheann Comhairle, I disagree with that suggestion——
I made that suggestion.
I disagreed with that suggestion. There is an order of the House. Unless the Whips agree to a change, I specifically disagreed when that was called, a Leas-Cheann Comhairle. Under no circumstances can the Whips discuss it.
Deputy Taylor, I have a distinct recollection of putting the proposition, as it came. I think the Official Report will indicate that nobody disagreed.
I quite definitely disagreed, a Leas-Cheann Comhairle. I said, as the Taoiseach suggested, that the Whips should discuss it. I disagreed.
I might say, Deputy Taylor, your manner of disagreement was not in accordance with the normal type of disagreement one gets here. I did not hear it or see it.
As you know, a Leas-Cheann Comhairle, I go about things in a quiet and peaceful manner. I do not feel any need for rage to any large extent. I indicated that I disagreed with any variation in the order of the House made last Friday unless the Whips discussed it and came to an arrangement about it.
Deputy Taylor, I am asking you to accept that there was agreement earlier on that, in respect of the three amendments before the House, the question would be put at 4.45 p.m. and that, following that, on the question of the Whips, that they would have consultations in the matter of whether or not additional time might be made available for the other business before us.
Under no circumstances can I agree with that. It was discussed and you asked for an agreement on the matter. I specifically stated, and Deputy Jim Mitchell will confirm, that I did not agree to it. It is a matter for the Whips to discuss. There is an order of the House in existence. I understand the Whips are meeting at present to review the matter. With respect, we should leave it to them to make the appropriate arrangements and whatever they agree will be perfectly all right with me.
I must adjudicate on matters of that kind. While I accept there was an indication of concern for the time generally, and that there might be some agreement as to how the remaining time would be shared out, I have no hesitation in saying that in respect of the suggestion that the question on these three amendments be put at 4.45 p.m., nobody present disagreed in any fashion. I keep an observant eye and an observant ear. Therefore I intend proceeding with that agreement at 4.45 p.m.
With the greatest of respect, a Leas-Cheann Comhairle, I disagreed and Deputy Mitchell can confirm that.
I confirm it, Sir. It was because of the disagreement that it was suggested that a Whips meeting be held and I understand it is about to be held now.
I suggest we leave the matter to the Whips. They are meeting now and no doubt they will come to some agreed arrangement on the matter and whatever agreement they reach will, I am sure, be in order with all of us.
In future the Chair will be very conscious of alleged agreements by people who are present in the House.
I compliment Deputy Cowen on playing a blinder and making matters even more obscure than they have been. I know that was not an accident; he is far too bright for any accidents of that nature. The discussion on these three amendments was much more like a Second Stage than a Committee Stage debate. In particular it seems as if the House could have duplicated for a law school. For those of us who are not qualified in that gentle art it would have been intriguing if it was not such a long drawnout waste of time in that there was little if any input from the Minister. On Committee Stage the nub of the matter should be the putting of the amendment and if the Minister would then give his views at that stage it would make for much clearer discussion thereafter. We could find out whether there was any common ground between the Minister or the Government's point of view and that of the proposers of the amendments.
I detected something in the Minister's contribution that is somewhat disturbing. I gathered from his contribution that expeditious extradition is something to be desired even at the expense of the innocent who may be sent for in what I might call a slot machine extradition operation such as we are now engaged in. The Taoiseach also intervened, not for the first time, and pushed one aspect about which I have no particular grievance. His concern that a provision whereby the Minister by regulation would appoint someone of whatever hue, kind or colour, size or importance is more dangerous and less desirable than having the Attorney General as proposed in this Bill. If it is done by way of regulation by the Minister, he is subject and answerable to this House while the Attorney General is not. Secondly, if regulations appointing such a person were dealt with in the normal way, I take it those regulations would be laid before both Houses of the Oireachtas and could be amended or otherwise as the case may be.
In so far as the overall Committee Stage debate, law lectures, or whatever you like to call it, that we have engaged in so far today is concerned, the Government and the Minister, with the Taoiseach at his side, should get wise to the idea that the concern throughout the country is not as they have been projecting here about getting quick expeditious slot machine extradition of our citizens but rather is about the 1987 Act and the way the 1965 Act is being amended. In so far as the application of the two Acts is concerned in sending people to the Six Counties and to Britain, the public do not want that when we can deal with them here ourselves.
One expression has been bandied across the floor of the House today and that is "the most favoured nation". The British complain they are not the most favoured nation as far as this matter is concerned and there has been talk as to who is or who is not the most favoured nation. That is an expression that is appropriate to trade agreements. It is in the context of importing sacks of coffee beans, sacks of rice and so on that one normally talks about the most favoured nation. It has no bearing when one is talking about people, where they will be tried, if they are to be tried and if they are to be extradited from this country. Neither does it refer to the history of a matter of extradition. I have heard Deputies quoting from Acts as far back as the 1870s. We are planning for the present and the future as to what is right and proper for us in this House to adopt. It is not the concern of anybody else, other than the Seanad perhaps. We are not involved with an extradition treaty; we are involved in updating our law and this has come about by reason of the coming into force of the Extradition Act, 1987, and the new situation it brings about. We are dealing with a new position, we are planning henceforth and the question of past arrangements should be neither here nor there.
We have to devise an acceptable and safe system and we have suggested a revised form of prima facie evidence as the necessary proof. The Minister is disclaiming with some force the concept of the prima facie situation but his Bill imports a prima facie situation and it can and will lead to the question of a prima facie situation in court. What will the position be? The Attorney General will make his decision on the matter and the case will be brought to the District Court. Whether it is brought to the District Court or to the High Court, the matter will come up for review in virtually every case. The Minister himself admitted that last night and he was quite right. His decisions on this issue will be open to review at least in the High Court and possibly in the District Court when the matter comes up there. What exactly is it that the High Court will be reviewing? It will be reviewing whether the decision of the Attorney General was reasonable having regard to all the circumstances. That is what the review will be.
We can be sure of one thing. High Court judges are pretty thorough in these matters and when the High Court comes to decide whether the Attorney General has been reasonable in the decision he made it will go into all aspects of the matter and that means that sufficiency of the evidence because "sufficiency of evidence" are the very words used in section 2 of the Bill. Therefore, the High Court will examine the sufficiency of the evidence and decide whether the Attorney General's decision was reasonable, having regard to the sufficiency of the evidence and if that is not a form of prima facie adjudication, I do not know what is. It is the Attorney General in the witness box — and I would not envy him in the position — who will have to explain to the High Court judge or to the district justice, as the case may be, what he saw, what he asked for and why he made a decision, why it was not a capricious decision, what it was based on, what more information he may or may not have sought. What is this sufficiency of evidence? It is prima facie by another name. It is, even on the Minister's own Bill, a prima facie situation.
Why then leave us open to the delays and complexities involved in having these cases taken to the High Court quite unnecessarily? The Minister says he is very anxious that there should be a swift, speedy procedure for dealing with these cases, that great delays are the one thing that should be avoided and that would be avoided if the matter were dealt with on sworn statements in the District Court. It is the Minister's procedures which will cause incredible delays. I do not think there is any undue delay in the British Attorney General sending over sworn statements he will have to take from his witnesses anyway when the matter comes up in the District Court and is dealt with there. That is a quick speedy procedure. There should be no undue delay involved there because, presumably, the British Attorney General will have the statements from his witnesses. Otherwise he would not or should not be setting about the business of seeking extradition.
In the Minister's system I can see prolonged delays in all cases because they will end up for review in the High Court, which is a very lengthy procedure, involving dates for oral hearings for examination of the Attorney General as to exactly what he was about in coming to his decision. By the time that is all done and that High Court review is possibly on appeal to the Supreme Court, where is the Minister's speedy efficient procedure? That is the crucial question, the reasonableness of the Attorney General's decision can be called into question on review. Let us be absolutely clear about that.
The Attorney General could even be served with a sub-poena. I know one of the sections says there are certain presumptions that arise on the issue in favour of the prosecution. That is true and I see the purport and intent of that but that presumption is a rebuttable presumption. It will not debar counsel or solicitor for an arrested person from seeking to rebut the presumption by calling the Attorney General and putting him on the spot to explain himself as to whether he even saw the warrant and what else he saw and be cross-examined about it even in the District Court. The person in the District Court is perfectly entitled under the proposed section 44C to set about trying to prove the contrary and the one way he would do that would be by sharing a subpoena on the Attorney General.
This argument about speed and efficiency does not stand up. I see the reverse happening. We would be much better off having the statements sent over, having the thing done clearly and openly. It is unfortunate if that does not please the British authorities and I would regret that very much because we should have the best possible relations with them. However, that is not to say we must compromise our position on what we regard as the bottom line on providing adequate safeguards. It is our decision and that should be the sole criterion motivating this House in dealing with this new situation that arises from the coming into operation of the 1987 Extradition Act. It is the affair of this country, this House and the Seanad, of the Oireachtas here and of nobody else. We are not in the business of negotiating treaties; we are in the business of making new law for a situation that applies now, a position that has not applied hitherto. We should have a care on how we do it and that has not happened here.
I am gravely concerned that the thing will end up in one prolonged litigation mess in the District Court, the High Court and the Supreme Court. It will cause endless delays, endless difficulties and will complicate the procedure. If we are having difficulties with the British authorities on the basis of what has happened until now they will be very much compounded if we go ahead on the basis of this Bill. We have prepared these amendments, very carefully and moderately formulated, to try to avoid that highly undesirable situation from arising and the difficulties it would give rise to.
On a point of order, it has been agreed by the Whips that a division on this batch of amendments will take place at 5.20 p.m.
May I inquire as to whether a representative from The Workers' Party was present at those deliberations?
No.
That is what I thought. There are substantial amendments here from The Workers' Party who are as much concerned about the conduct of Committee Stage as anyone else. I understood we would have had some consultation in this matter and I am now led to believe that Deputy De Rossa was not invited to that meeting as the Taoiseach indicated he would be.
The normal meeting of the Whips took place, as happens every week.
I do not wish to delay the House in view of the time constraint so I will be as brief as I can. I want to deal first with the Taoiseach's intervention. The only reason I deal with it is because the Taoiseach made it, and it might appear to have some significance as it was his only intervention at this stage. The Taoiseach made great play of paragraph (3) of our amendment No. 1 as if it were something of tremendous significance. In fact, it is purely procedural in relation to the rules of procedure in the court.
I hesitate to interrupt the Deputy but I wish confirmation from the House that the proposition from the Minister of State, Deputy Vincent Brady, in respect of taking the amendments at 5.20 p.m. is agreed. Agreed.
What we are proposing in paragraph (3) is purely procedural. I feel sure the Taoiseach knows that even though he seeks to suggest that the making of regulations or orders by the Minister under this Bill as proposed would be in some way enormously significant. The Taoiseach sought to give that impression which, of course, would mislead anyone who did not know what was the position. Under section 3 of the Bill the Minister has power to make regulations but there is nothing about that. I have been looking at the other two Acts. In the 1987 Act, the one that came into force yesterday, the Minister for Foreign Affairs is given power to make regulations about one aspect of that Act and the Government are given power to make regulations about another aspect of it. There is no question of anything secretive or unusual being done. In section 8 of the 1965 Act there are no less than eight separate references to powers given to the Government to make orders and regulations. Of course, the Government from time to time, acting via the Minister for Justice, have done that and there is absolutely nothing unusual in it. It could just as easily be done by the District Court Rules Committee and, in fact, it is similar to the District Court Rules on Extradition which I see were made by the committee on 7 September 1971 by four of them, two district justices and the other two either solicitors or District Court clerks. I concurred in the making of the rules on 23 September 1971. It is routine, a thing which is done every day of the week and it is only an attempt to mislead the House to suggest something sinister or unusual in this.
It is interesting, Sir, that the only point in relation to our amendment, which is relatively lengthy, which the Taoiseach felt that he could or should make was this rather hollow point in regard to the rule making powers of the District Court. He did not raise any point in relation to the substance of the amendment. The substance of it stands and is perfectly valid. It is certainly short of the full prima facie procedure which has been suggested by some others — I do not deny that but one must try to achieve a balance between protection of rights and workability. This has workability; it is not open to challenge in the way that the Attorney General procedure is.
What Deputy Taylor has said about bringing the Attorney General even into the District Court is probably right. He certainly can be brought into the High Court and asked to account for his decision. One cannot give him an unreviewable discretion in relation to matters of personal liberty of this kind. In addition to bringing him in personally and his being examined in this regard, it is open to the party whose extradition is sought when he is challenging this in the High Court, as he has a right to do under the 1965 Act, to ask for discovery of documents. That would not arise if our procedure were followed. The only document in question would be the affidavit which he would have anyway and he would have nothing else to get. He can do some very lucrative fishing, I suggest, with an application for discovery of documents in relation to what the Attorney General reads privately in his room in Merrion Street.
The documents will, in the nature of the thing, consist for the most part of police reports from some police force or other in either Britain or Northern Ireland. I was going to say if that becomes the norm, but if it happens even once the whole thing will dry up because what police force in Northern Ireland or in Britain will send documents down here to the Garda Commissioner and the Attorney General if as a result of an application for discovery of documents they are going to be paraded down in the High Court?
Surely these documents will be privileged?
The Deputy is the person who considers them to be privileged. How could they be privileged?
It would raise the question of security.
I cannot see how they could be privileged.
You can read them on the B & I, if they are still there.
It is another example of why this proposal in section 2 is not going to work. A point was made, I think by Deputy Birmingham, and it is an absolutely valid one. As we have all said, the first person who will be extradited under this law will challenge it. He will go the whole way through the three courts — the District Court, the High Court and the Supreme Court. All extradition procedures will stop for about a year until those three courts have been gone through. It will take the best part of a year, even with unusual expedition, to get the same case decided in those three courts. That is a frightening possibility for us. All those difficulties can be overcome. There will be fairness and some reasonable degree of safeguard if our amendment is accepted. The other proposal is wide open and because it seeks to exclude the courts and to exclude the power of review, it seems that they will fall over backwards in trying to establish the right to protect the individual concerned. It would be much better if the procedure were reasonable and straightforward as in our amendment. I have listened now for quite a while to all the arguments——
The Deputy has not answered them.
I am absolutely convinced from all I have heard that what we propose here is the superior method. It is not open to the same objections and it cannot be used to obstruct legitimate extradition in the way that the other rather grotesque procedure will be by being challenged in order to obstruct extradition.
In conclusion, I should like to point out to the House, and invite the Taoiseach and the Minister for Justice to take on board once again, the point that Deputy McDowell made the other day and which has not been replied to. This is if you read section 2, that there is no obligation on anybody to submit any of these cases to the Attorney General. There is nothing you can do about it because by section 44C, there is a presumption that the order was not made and that it was not required to be made. That very presumption strenghtens what I am stating, that there is no obligation to submit any of these warrants to the Attorney General. It is one of the consequences of the way in which this is drafted. It is drafted backwards for the purpose of trying to exclude that. If this is not going to be dealt with and if it is not going to be denied, we are entitled to assume that it is as we say and that is quite ridiculous.
(Interruptions.)
A Cheann Comhairle——
I call Deputy Cooney.
Age always wins.
I have a question for the Minister arising out of the last point that Deputy O'Malley raised. It is something which occurred to me on reading the section. In the event of a warrant being received, being endorsed and not being referred to the Attorney General for whatever reason, does the Minister consider that that is then a valid warrant?
The Bill considers it valid.
Every warrant will have to go to the Attorney General.
That situation, as outlined by Deputy Cooney, will not arise.
There is no obligation there.
I shall be brief. That was one of the points I felt must be clarified. I am very concerned and I want to make my concern known. Perhaps about 10 per cent of the membership of the House have taken a detailed interest in this Bill. The Bill itself is confusing. When the Explanatory Memorandum arrived some days after the Bill, I must say sadly that it was confusing rather than the reverse. At 5.20 p.m., if the Minister for Justice holds the line which he is at present holding, we shall make a serious error in terms of the law which is going to be implemented. Recently, one of our Supreme Court judges said that law in this country is coming into disrepute. I believe that we are actually going to help that process now because we are going to pass into law something that even the 10 per cent of us who have taken an interest in this Bill are absolutely uncertain about. I cannot find in either the Bill or the Explanatory Memorandum the obligation to which the Taoiseach has just referred. From reading the Bill and consulting people in the profession, I cannot see the absolute obligation that every warrant has to be transferred to the Attorney General. Perhaps the Minister in replying might get an opportunity of actually spelling it out to us. We are entitled to know.
We may all be wasting our words here. I think that this will be discussed in a relatively short time at another venue because we can all be certain that this Bill will be challenged. It is obvious from comments that have been made by lawyers outside this House that they think it has weaknesses. Obviously, that is the process which has to be gone through. In relation to the office of the Attorney General, I would argue with the Minister and the Taoiseach present in the House that what we are proposing to do is an absolute disservice to that office. Anybody who has served in Government in this country knows the pressure and the strains on the office, of the Attorney General, particularly in relation to the preparation of legislation. If the obligation which the Taoiseach says is there is, in fact, there, we are piling the burden on to that office in terms of the preparation of legal advice, in terms of consultation with the parliamentary draftsman, in terms of preparation of legislation, which is an ongoing process. I have as much respect as any Member of this House has for the present incumbent of the Attorney General's office who is and has been a good servant of the State but we are doing a great disservice to his office. It is not in the best interests of the Government to do so. Even if it means having consultations and discussions with the Opposition parties in relation to the amendments we should find another way.
Perhaps the Minister could give us some of the background as to where this idea came from. Did the idea come from the office of the Attorney General, did it emanate from the Department of Justice or did it come from outside lawyers as is commonly believed? Perhaps, the Minister would give us some insight into the legal advice he is operating on. There is a depth of confusion among most of those Deputies on this Bill and this is not doing a service either to this House, the people we are trying to protect or to the efficacy of law. This matter will probably have to be clarified in another venue which may well be the European Court rather than our own courts.
It is ludicrous that the highest legal officer in the State is going to be a witness, possibly on an every day basis, in the District Court. It is ludicrous that the Attorney General is going to be both a defendant and a witness in court cases. That is not in the best interests of the office he holds. The Taoiseach has intervened on one occasion and seems to feel with a certain degree of certainty that there is an obligation to transfer every warrant to the Attorney General's office. I do not see that in the Bill nor is it clarified in the Explanatory Memorandum. It would be of some assistance if the Minister could do that even though I fundamentally object to what is being proposed in this section.
Even at this late stage I urge the Minister to reconsider what we are doing because it is not in the best interests of this House nor in the interests of making legislation which is our primary function. It will not stand the test of time. The amendments put forward in Deputy Taylor's name on behalf of the Labour Party offer better safeguards and the Minister has given us no reason why they cannot be taken on board by the Government.
A Cheann Comhairle——
Is the Taoiseach intervening?
I am deliberately not intervening because I do not want either the Government or myself to take up too much time but this point has been specifically put to me by Deputy Cooney and others and I want to answer it.
Section 43 in this case.
The Government are totally convinced that the wording of the proposed sections 44A and 44B is such that the Attorney General must by this Statute examine every warrant. Section 44A says that such a warrant shall not be endorsed if the Attorney General so directs. There is an obligation implicit on the Attorney General in that to examine every warrant to see whether or not he will direct. Section 44B says that the "direction of the Attorney General shall be given... unless the Attorney General is of opinion". Again, clearly there is an obligation implicit on the Attorney General in that to look at every warrant to see whether he should come to such an opinion.
The answer may possibly be found in section 43 of the Principal Act which says that the commissioner shall, subject to the provisions of this Part, endorse the warrant for execution. The section which is now being put to the House is contained within that Part. Clearly, the commissioner would have to have regard to that section.
A Cheann Comhairle——
Was the Deputy rising on a point of order earlier?
I appreciate the contribution made by Deputy Cowen to the debate. To those who will say at the end of this debate that we have not answered the observations which were made from the Government benches I would like to say that the procedures proposed by the amendment advanced by the Progressive Democrats, the Labour Party and The Workers' Party are preferable for one simple reason and that is because they provide for a determination to be made in open court where justice will not only be done but will be seen to be done. That is fundamental to our objections to the procedures proposed by the Government. So far as The Workers' Party are concerned, that is not to be taken as a reflection on the integrity on the office of the Attorney General or on the constitutionality of his functions if ultimately he assumes them. That is not what is sought. What we are concerned about is that active and proper safeguards in any judicial process are ones which are dealt with, pursued and exercised in open court by judges appointed for that function and where the parties have an opportuntiy to be heard. Therefore, when it comes down to all other matters, that one remaining factor is the one which convinces The Workers' Party that such a procedure is far more preferable.
Deputy McDowell.
May I ask a question?
A question from Deputy Taylor.
Would the Minister agree that the Attorney General would be compellable and amenable to the court as a witness on review of his decision?
While the Minister is considering his reply to that question let me say that is a point which occurred to me independently this morning. Proceedings will issue and they will either be plenary proceedings or proceedings in the District Court. Although Deputy Cowen is right in saying that there is a presumption in this matter it is a rebutable presumption and it is open to somebody to seek to rebut it by all legal evidence. It is not simply a matter of serving a sub poena on the Attorney General. A sub poena duces tecum will also be served on him so that he will have to bring everything on how he reached a decision with him to the District Court. He would have to queue up there with the drunks of last night waiting to be heard on an extradition——
I hesitate to interrupt the Deputy but I am concerned about the time factor. A question has also been put by Deputy Taylor and the Taoiseach or the Minister should be afforded an opportunity to reply before the appropriate time arrives to put the question.
Is there anything in this Act to immunise the Attorney General from being amenable to the courts as a witness, bringing all his records with him, and from the process of discovery? I believe there is not and that this will be the single measure which will destroy the Office of the Attorney General, if implemented.
On a point of information, if the logic of the Opposition is correct why is it that the DPP is not being asked to justify every prosecution? In the same way, in relation to this office which happens to have an international dimension, why should the Attorney General be asked to go to the court? If the DPP had to justify in court every prosecution, Mr. Eamon Barnes would be in court day in and day out.
Because there are no statutory rules governing how he makes his decisions.
The Government would see no objections or, at least, would welcome the President referring this Bill to the Supreme Court because——
That is the next thing.
I have sat here all day, Deputy McDowell, you have already done your business in court. I am entitled to ask a question. We are not all legal eagles in this House. We represent ordinary people.
It is the President's sole discretion——
It is not the President's sole discretion as everybody in this House knows.
You have accepted far too little once again.
In a couple of Bills which have been put through this House the Government made it quite clear that they would welcome the President's decision to refer the matters to the Supreme Court so there is precedent for that.
I must alert Members to the fact that the time is running out. If they wish the Taoiseach or the Minister to respond, now is the time.
We will deal with that point later.
The point raised by Deputy Barrett will be dealt with shortly when we will have moved on from deciding on the batch of amendments which are before us. Undoubtedly, there is consensus among us that we all want safeguards. The Government are satisfied that we have struck the right balance between the rights of the citizen and what is required to make extradition work. The suggestions we have heard here today during the course of the discussion on the three amendments would upset that particular balance and, therefore, make the extradition procedures unworkable. We cannot afford that and that is why we are more than satisfied that the approach adopted in the Bill is the right and proper one.
Is the Attorney General compellable?
In accordance with the decision of the House earlier I am not putting the question——
With respect, may I have 30 seconds for an answer to that very important question? Is the Attorney General compellable as a witness? It is very important to answer that before the question is put?
The Chair is in the process of putting a question and may not be interrupted.
A Cheann Comhairle——
It is not as if we are reaching the end of Committee Stage. I am putting the question.
You are doing a disservice to the procedures of this House.
(Interruptions.)
I am putting the question. I am on my feet. In accordance with the decision of this House earlier I am putting the question now, the time having arrived. The question is, "That the new section be there inserted."
(Interruptions.)
I would like some clarity——
Deputy Spring——
I am asking you, Sir. You are not doing a service to this House.
Deputy Spring, I must insist on you resuming your seat.
On a point of order——
I will not accept a point of order while I am putting a question.
A Cheann Comhairle——
I repeat, Deputy Spring, you will resume your seat. Please do so.
I always do what the Chair asks eventually.
Lest there be any ambiguity about the procedure and the attitude of the Deputy in question I repeat that in accordance with the decision of this House a short time earlier it was decided that at 5.20 p.m. the question would be put. I am putting the question and the Deputy is not entitled to disrupt the Chair in putting the question.
I never wanted to do that.
Deputy, resume your seat.
Will you allow the Minister for Justice——
Most certainly not.
You are not doing a service to this House.
Deputy Spring, I resent that kind of tactic from you. I will not accept it. I am merely doing my duty as ordained by this House and I afforded the Minister for Justice an opportunity of replying in the prescribed time. I am putting the question.
It is a very important question.
It is——
It should be answered.
——and it is important that a decision of this House be implemented by the Chair; otherwise the Chair could be challenged.
Question put: "That the new section be there inserted".
The Committee divided: Tá, 29; Níl, 79.
Tá
- Bell, Michael.
- Blaney, Neil Terence.
- Clohessy, Peadar.
- Colley, Anne.
- De Rossa, Proinsias.
- Desmond, Barry.
- Gibbons, Martin Patrick.
- Gregory, Tony.
- Harney, Mary.
- Higgins, Michael D.
- Howlin, Brendan.
- Kavanagh, Liam.
- Keating, Michael.
- Kennedy, Geraldine.
- McCartan, Pat.
- McDowell, Michael.
- Mac Giolla, Tomás.
- Molloy, Robert.
- O'Malley, Desmond J.
- O'Malley, Pat.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quill, Máirín.
- Quinn, Ruairí.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Wyse, Pearse.
Níl
- Abbott, Henry.
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Matthew.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John.
- Burke, Ray.
- Byrne, Hugh.
- Calleary, Seán.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Mary T.
- Cowen, Brian.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Doherty, Seán.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam.
- Fitzpatrick, Dermott.
- Flood, Chris.
- Flynn, Pádraig.
- Foley, Denis.
- Gallagher, Denis.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Haughey, Charles J.
- Hilliard, Colm Michael.
- Hyland, Liam.
- Jacob, Joe.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lynch, Michael.
- Lyons, Denis.
- McCarthy, Seán.
- McCreevy, Charlie.
- MacSharry, Ray.
- Mooney, Mary.
- Morley, P.J.
- Moynihan, Donal.
- Nolan, M.J.
- Noonan, Michael J. (Limerick West).
- O'Dea, William Gerard.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Rourke, Mary.
- Power, Paddy.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Swift, Brian.
- Treacy, Noel.
- Tunney, Jim.
- Walsh, Joe.
- Walsh, Seán.
- Wilson, John P.
- Woods, Michael.
- Wright, G. V.
Tellers: Tá, Deputies Harney and Kennedy; Níl, Deputies V. Brady and Briscoe.
Question declared lost.
Amendment No. 4 not moved.
NEW SECTION.
I move amendment No. 5:
In page 2, before section 2, to insert the following new section:
"2.—Part III of the Principal Act is hereby amended by the insertion before section 42 of the following new section:
`42.—Where a request is received for the extradition of a person under this Part, the requesting country shall be required to provide, before the District Court, evidence as to the commission by the person claimed of the offence for which extradition is sought, and extradition shall not be granted unless such evidence produced establishes a prima facie case of involvement in the offence alleged.'.”.
I had an amendment to this section but I understand it was ruled out of order, a ruling I accept.
There are Members in the lobby who are not interested in the debate and they should leave the Chamber as quietly as possible.
I accept the ruling of the Chair in regard to my amendment but I must point out that moving that amendment would have afforded the Minister the opportunity to tell the House if the Government would welcome a decision of the President to refer the Bill to the Supreme Court in accordance with Article 26 of the Constitution. I do not claim to be a constitutional lawyer but, having listened to the debate for many hours and to the many legal opinions put forward, I am sure that in the Law Library there is a 50/50 split on the issue. Deputy Birmingham mentioned this morning that if the Bill is not tested in the Supreme Court, following a decision by the President to refer it to that court, the chances are that the first time it will be tested will be when the first case is brought before the District Court after the passing of this legislation, if that happens. It would be wiser if the President saw fit to refer the Bill to the Supreme Court for their ruling rather than having somebody who may be as guilty as hell walking free from a court after winning a constitutional case in the Supreme Court. In my view the Minister should avail of the opportunity to state publicly whether the Government would welcome a decision by the President to refer the matter to the Supreme Court.
I should like to say in reply to Deputy Barrett——
On a point of order, may I take it that the Chair will be taking amendment No. 3 when we reach section 2?
Yes, we will. In reply to Deputy Barrett I should like to say that the Chair gave his decision in respect of Deputy Barrett's amendment because the constitutional position to him is quite clear. It would remove the discretion of the President under Article 26.1.1º of the Constitution to refer a Bill to the Supreme Court.
(Limerick East): On a point of order, as the Chair proceeded to put section 1 to the House I noticed that the Taoiseach indicated he wanted to speak on that section. I am sure he is in order to speak before section 1 is dealt with.
Section 1 is before the House.
I sincerely welcome the Chair's observations about the role of the President. It must be understood in the House, especially since the Chair has made it clear that one has to be a member of the Law Library to understand this basic point, that the President's power to refer a Bill under Article 26 of the Constitution to the Supreme Court is his decision and his decision alone. This House would exceed itself and trample down a basic constitutional convention if it started at any stage during any discussion on any Bill to contemplate preempting the President's total discretion in this matter or obliging him by political pressure one way or another to exercise what is his function under the Constitution as a last guardian of the Constitution. The point I should like to make is that any party who comes to the House with an amendment like that proposed by Deputy Barrett — thank heavens it has been ruled out of order — seems to misunderstand the function of this place. We are here to bring in legislation that is good and is constitutional. We are not here to throw up legislative balls in the air and then pop them at the President and see how he will react to them. We have a duty as legislators to bring in legislation which we believe in our hearts is constitutional. If Deputy Barrett, or any Member of the Fine Gael benches, has any doubt about the Bill let them vote against it at Second Stage, Committee Stage, Fourth Stage and Fifth Stage. They cannot opt out, do a con job or a snow job on this. If they have a constitutional doubt about this Bill they should say so in public and vote against it. They should not put it up to the President and try to use his last ditch safeguard as a way of getting them off a hook.
We do not want to get off any hook.
Are we debating an amendment that has been ruled out of order?
I must point out to Deputy McDowell that I have ruled out of order the amendment in question. Consequently we ought not to debate it in the House.
(Limerick East): Deputy McDowell arrived in the House ten minutes ago after spending the entire day in the High Court.
Deputy McDowell has devoted most of his time to an amendment I have ruled out of order.
On a point of order, I do not think we need to spend time at that. Deputy McDowell was not in the House on two previous occasions when the House made its views clear, with the utmost respect to the President, nor was he here during the course of the debate this afternoon. It ill behoves him, and it ill becomes him to talk about opting out or copping out.
A Deputy is entitled to make an observation on section 1, as Deputy McDowell did.
The House has a deep duty — I will not be barracked out of saying this — to enact constitutional legislation. It is a total misunderstanding of our function if we are to say that we will have a flier at a Bill, rush it through the House and then expect the President to save us from the consequences of our own folly. That is not what the Oireachtas is about. The President is part of the Oireachtas as is this House.
The Deputy is again adverting to an amendment I have ruled out of order.
I appreciate that but it must be understood that the House has a duty to do its best. If there is any Deputy in the House who believes that section 1, or any other section in the Bill, is unconstitutional that Deputy has a duty to vote in accordance with his or her views and not to indulge in gimmickry, nonsense and intellectual flim flam for the benefit of the journalists who observe our proceedings. That is what is going on; it is a con job and I am determined to expose it.
Where was the Deputy all day? He has a neck coming in here at this time lecturing us.
This will be a brief intervention on my part because the House has agreed that these votes should take place now so that we can get on to discussing other amendments as fully as possible in the time available. This is all by the way because what happens after legislation leaves the House is something over which we have no control. I do know, however, that there is some dispute among constitutional lawyers as to whether a reference by the President to the Supreme Court is a good thing. In one way, as I understand it, it brings certainty into the matter and from then on everybody knows exactly what the law is. On the other hand I know, because I have been a member of the Council of State, that there is another argument which says that in regard to any piece of legislation which should only be tested ad rem, it should only be tested in relation to a particular set of circumstances when all the arguments are marshalled properly which, to some extent, they might not be under reference provisions.
It is a matter for lawyers to make up their minds as to which is the best procedure. As far as we on this side of the House are concerned we want to be very careful about this matter. We fully recognise that it is the right of the President, totally in his own jurisdiction, in the exercise of his constitutional powers to decide whether there should be a reference. In all cases, however, he has to consult with the Council of State first but then it is a matter for him after that whether he refers something to the Supreme Court. I do not think it would be appropriate for the Government when legislation is going through the House to say whether they would wish the President to exercise his exclusive constitutional powers. The Government are in a special position in this regard. However, it is open to any Deputy to say that in regard to this piece of legislation, he/she would like to see it referred. This is perfectly legitimate. I do not think it is a matter for the Government sponsoring the legislation to say whether we would wish to see it referred.
Within the bounds of propriety I am permitted to say this: if the President in exercise of his constitutional powers so decides, as far as we are concerned, there will be no objection and we would not view that with any reservations or doubts, or anything of that kind. As far as we are concerned, as a Government sponsoring this legislation, we will leave it entirely to the discretion of the President in the exercise of his constitutional powers and as far as we are concerned we would have no objection if he does so. On the other hand, we could not have any objection if he does not. I think that is a fair statement.
(Interruptions.)
The last President to resign was forced to do so——
(Interruptions.)
Question put and agreed to.
Amendment No. 2 not moved.
Section 1 agreed to.
NEW SECTION.
I move amendment No. 3:
In page 2, before section 2, to insert the following new section:
"2.—Part III of the Principal Act is hereby amended by the insertion of the following section after section 44:
`44A.—(1) Where a request is received for the extradition of a person under Part III of the Principal Act the requesting country shall be required to provide before the District Court, evidence as to the commission by the person claimed of the offence for which extradition is sought, and extradition shall not be granted nor shall an order be made under section 47 (1) of the Principal Act unless such evidence produced establishes a prima facie case of involvement in the offence alleged.
(2) Where the request for extradition relates to a convicted person the production before the District Court of the original or an authenticated copy of the judgment or conviction shall be deemed to be sufficient prima facie evidence as to the commission by the person claimed of the offence for which extradition is sought.
(3) Where the request for extradition relates to a person who has not been convicted, the production before the District Court of a statement of fact by way of affidavit or statutory declaration, exhibiting statements of witness on affidavit or statutory declaration shall be deemed to be a sufficient prima facie case for the purpose of this section if the District Court determines that such affidavit or statutory declaration and the sworn or declared statements of witnesses exhibited therein set forth reasonable grounds for believing that the offence for which extradition is sought has been committed and that the person sought committed it.'.”.
Question put: "That the new section be there inserted".
The Committee divided: Tá, 29; Níl, 79.
Tá
- Bell, Michael.
- Blaney, Neil Terence.
- Clohessy, Peadar.
- Colley, Anne.
- De Rossa, Proinsias.
- Desmond, Barry.
- Gibbons, Martin Patrick.
- Gregory, Tony.
- Harney, Mary.
- Higgins, Michael D.
- Howlin, Brendan.
- Kavanagh, Liam.
- Keating, Michael.
- Kennedy, Geraldine.
- McCartan, Pat.
- McDowell, Michael.
- Mac Giolla, Tomás.
- Molloy, Robert.
- O'Malley, Desmond J.
- O'Malley, Pat.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quill, Máirín.
- Quinn, Ruairí.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Wyse, Pearse.
Níl
- Abbott, Henry.
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Matthew.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John.
- Burke, Ray.
- Byrne, Hugh.
- Calleary, Seán.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Mary T.
- Cowen, Brian.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Doherty, Seán.
- Mooney, Mary.
- Morley, P.J.
- Moynihan, Donal.
- Nolan, M. J.
- Noonan, Michael J.
- (Limerick West).
- O'Dea, William Gerard.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Rourke, Mary.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam.
- Fitzpatrick, Dermott.
- Flood, Chris.
- Flynn, Pádraig.
- Foley, Denis.
- Gallagher, Denis.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Haughey, Charles J.
- Hilliard, Colm Michael.
- Hyland, Liam.
- Jacob, Joe.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lynch, Michael.
- Lyons, Denis.
- McCarthy, Seán.
- McCreevy, Charlie.
- MacSharry, Ray.
- Power, Paddy.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Swift, Brian.
- Treacy, Noel.
- Tunney, Jim.
- Walsh, Joe.
- Walsh, Seán.
- Wilson, John P.
- Woods, Michael.
- Wright, G. V.
Tellers: Tá, Deputies Howlin and Bell; Níl, Deputies V. Brady and Briscoe.
Question declared lost.
Amendment No. 4 not moved.
NEW SECTION.
I move amendment No. 5:
In page 2, before section 2, to insert the following new section:
"2.—Part III of the Principal Act is hereby amended by the insertion before section 42 of the following new section:
`42.—Where a request is received for the extradition of a person under this Part, the requesting country shall be required to provide, before the Distract Court, evidence as to the commission by the person claimed of the offence for which extradition is sought, and extradition shall not be granted unless such evidence produced establishes a prima facie case of involvement in the offence alleged.'.”.
Question put: "That the new section be there inserted".
The Committee divided: Tá, 17; Níl, 79.
Tá
- Bell, Michael.
- Blaney, Neil Terence.
- De Rossa, Proinsias.
- Desmond, Barry.
- Gregory, Tony.
- Higgins, Michael D.
- Howlin, Brendan.
- Kavanagh, Liam.
- McCartan, Pat.
- Mac Giolla, Tomás.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quinn, Ruairí.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
Níl
- Abbott, Henry.
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Matthew.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John.
- Doherty, Seán.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam.
- Fitzpatrick, Dermott.
- Flood, Chris.
- Flynn, Pádraig.
- Foley, Denis.
- Gallagher, Denis.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Haughey, Charles J.
- Hilliard, Colm Michael.
- Hyland, Liam.
- Jacob, Joe.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lynch, Michael.
- Lyons, Denis.
- McCarthy, Seán.
- McCreevy, Charlie.
- Burke, Ray.
- Byrne, Hugh.
- Calleary, Seán.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Mary T.
- Cowen, Brian.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- MacSharry, Ray.
- Mooney, Mary.
- Morley, P. J.
- Moynihan, Donal.
- Nolan, M. J.
- Noonan, Michael J.
- (Limerick West).
- O'Dea, William Gerard.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Rourke, Mary.
- Power, Paddy.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Swift, Brian.
- Treacy, Noel.
- Tunney, Jim.
- Walsh, Joe.
- Walsh, Seán.
- Wilson, John P.
- Woods, Michael.
- Wright, G. V.
Tellers: Tá, Deputies McCartan and Sherlock; Níl, Deputies V. Brady and Briscoe.
Question declared lost.