Amendments Nos. 1, 3 and 5 are clearly related and, by agreement, could be debated together.
Extradition (Amendment) Bill, 1987: Committee Stage.
In relation to that proposal I wish to raise a certain reservation with regard to amendment No. 4. I would ask that amendment No. 4 also be taken with amendments Nos. 1, 3 and 5. I read your communication this morning addressed to Deputy Mac Giolla in relation to amendment No. 4 where you advised that that amendment would be outside the scope of the Bill.
The amendment in the names of Deputies Mac Giolla, De Rossa, Sherlock and McCartan has been deemed out of order, being outside the scope of this Bill, and on that basis it may not be discussed at all. I have communicated that information to you.
I do not seek to challenge your ruling.
If it is out of order it cannot be taken.
I do not seek to challenge that. As I understood it, the guiding indicator for the purpose of any Bill is its Long Title. The Long Title of this Bill, if one wants to call it that, is: "An Act to amend the Extradition Acts, 1965 and 1987". There is no restriction——
I am sorry Deputy McCartan; you are seeking to challenge the ruling of the Chair in respect of a clear decision made. I am quite satisfied about my ruling in respect of amendment No. 4. It may not be discussed now and there is no way it can be included.
The purpose of amendment No. 4 was to underscore the points——
Whatever the purpose may have been, it is deemed out of order. It is clearly outside the scope of this Bill so far as the Chair is concerned. I have nothing further to add and the Deputy may not pursue it.
There is one point I want to ask your guidance on a Cheann Comhairle. I know the time in relation to the Bill is very confined and your ruling was received just before the House sat this morning. I want your guidance as to how this matter might be raised before the Committee Stage is concluded because there is——
If the Deputy wants any further clarification in respect of this ruling of mine, my office will be of the utmost assistance to him but it may not be discussed now.
Can I be assured——
That is the end of the matter Deputy.
Can I be assured that your office will be available to The Workers' Party so that we can clarify this matter? We have made the point that whatever provision toprima facie or to any other requirement is agreed by this House should apply to all extraditions and not just to our relationships with Britain.
The Deputy had better take up the matter with my office.
What do you propose in regard to amendment No. 2 which relates to section 1 of the Bill? If we do as you suggest, we will have debated section 2 before we will have dealt with an amendment to section 1. With respect, could you also take amendment No. 8 in conjunction with the other amendments you have just mentioned as it also relates to the main principal of the Bill which relates to section 2.
At this stage I am considering the admissibility of the amendment and I have not taken a decision as of yet. I will be in touch with the Deputy shortly about the matter.
I suggest that amendment No. 8 be taken with amendments Nos. 1, 3 and 5 because they all deal with the preliminary procedure before a backing of warrant takes place.
Is the Deputy suggesting that amendment No. 8 should be taken also?
Yes, on the basis that amendments Nos. 1, 3 and 5 are there suggestions as to what should happen before a warrant is backed. You propose to take those together and as amendment No. 8 is a fourth suggestion, it seems sensible that all of them should be on the table together.
Is that satisfactory?
Amendment No. 8 deals with a different issue altogether. Amendment No. 8 should be taken with amendments Nos. 6, 7, 9, 10 and 20.
My office have indicated also that amendments Nos. 6, 7, 8, 9, 10 and 20 should be taken together.
There are two issues dealt with in amendment No. 8. First, there is the question of the person who is going to be involved in this procedure. Our suggestion is that it should be the DPP. I accept that that issue has a bearing on the amendments mentioned by the Minister. Also dealt with in the amendment is the state of mind that is expected of the person who makes the decision. In our amendment we propose to reverse the procedure that is now contemplated in section 2. Section 2 requires the Attorney General to issue a directive unless he is satisfied that everything is in order. Effectively our amendment proposes to reverse that and say that a directive would only be issued if he is satisfied that there is something amiss. It would seem logical to debate that when the preliminary procedures contemplated by section 2 are before the House. I suggest that it should be possible——
The Deputy will appreciate that there is no agreement that amendment No. 8 should be taken in the manner he has outlined. My formal proposal to the House is that amendment No. 8 be taken with amendments Nos. 6, 7, 9, 10 and 20.
With respect, may we have some indication as to the amount of time to be spent on amendments Nos. 1, 3 and 5 because at the end of the evening we could find that we have not reached our amendment, No. 8, which is the principal one we have tabled?
That is a matter for the House.
The question of time could be discussed with the Whips.
I do not think Fine Gael deserve an opportunity to discuss their amendment.
It is apparent, even at this early stage of the Committee Stage debate, that the House will not have anything like sufficient time to have any sort of a reasonable discussion or debate on this Stage between now and 1 p.m. tomorrow. The Taoiseach and the Minister for Justice since they came to office knew they were entirely dissatisfied with this matter and it is quite unreasonable of them to bring this before the House in this rushed fashion. I respectfully suggest that the Taoiseach and the Minister for Justice should reconsider the time allocated for Committee Stage and extend it considerably.
I should like to advise the House that the business before us is in accordance with the order of the House of Friday last, 27 November, providing for Committee Stage now and, if not previously concluded, for it to be brought to a conclusion at 1.30 p.m. tomorrow, Thursday, 3 December.
I fully appreciate that and I do not have any objection to Committee Stage being taken now but I am suggesting that if the amendments and the sections of the Bill have not been reasonably debated in Committee by 1 p.m. tomorrow the time allocated for that Stage should be extended, and extended very considerably.
I respectfully suggest to Members that the sooner we get down to the business of discussing the amendments before us the better. Let us utilise the time as expeditiously and effectively as possible.
Has the Minister anything to say in response to my request?
Having put in an amendment early to facilitate the Bills Office we could now find ourselves in the position that, because the business has been ordered in a certain way, our main amendment to the Bill will not be reached. It is only reasonable and fair that we should be given an opportunity to state our case. This was not our fault but it arose because somebody decided the Order of Business differently. We would like some type of guarantee that we will be given an opportunity to debate our amendment.
I appreciate the point made by the Deputy and in order to allay undue anxiety perhaps the Whips will have a look at the position as soon as possible to see if the fears can be allayed.
I fully agree with the sentiments of the last two speakers. I should like to point out how extraordinary the position is from that of a year ago when the people on my left were in Government and were rushing their Bill through while the people on my right were claiming that time was too short. Now the shoe is on the other foot. Perhaps there is a lesson to be learned there and that there should be an extension of time.
The House should get down to discussing the amendments. We are taking amendments Nos. 1, 3 and 5 together.
I move amendment No. 1:
1. In page 2, before section 1, to insert the following new section:
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.".
The purpose of this amendment is to seek to substitute some reasonable and simple procedure which would take place in an open courtroom for the convoluted and complex procedure that is being put forward by the Government in section 2 and which will take place in secret in the office of somebody who is not a judge but who will be required to make a decision in regard to the extradition or otherwise of a person who will not be present, who will not know what is alleged against him and who will have no opportunity to make any representation or observation on the matters that are alleged against him. In my view it is perfectly reasonable that such an amendment should be put forward and that such an amendment should be accepted. The Bill deals only with our extradition relations with Britain and Northern Ireland. Amendment No. 1 has been drafted as closely as possible to the provisions of Article 8 of the Irish-US Extradition Treaty, signed in Washington in 1983. In 1986 the United Kingdom and the United States entered into a further extradition treaty which was ratified in that year after a lot of delay by the US Senate. That treaty contains very similar provisions to what is in the Irish-US Treaty.
The fact of the matter is, therefore, that both Ireland and Britain, acting independently, have agreed on an extradition procedure of this type with a common third party. I fail to see how, therefore, Ireland or Britain can reasonably object to operating a similar procedure as between themselves. If it is good enough for them in their dealings with the Americans it is, I suggest, good enough for them in their dealings with one another. It has not been alleged in the course of the many legal and other views that have been expressed here, to the best of my recollection, that this proposal of ours in any way contravenes either the extradition Convention of 1957 or the Convention on the Suppression of Terrorism of 1977 nor is it in any way incompatible with the Extradition Act, 1965, or the 1987 Act. It is perfectly workable from that point of view and it is also clearly constitutional.
Many claims, assertions or allegations of unconstitutionality have been made in the course of this debate inside and outside the House but nobody has claimed or alleged that the procedure that is set forward here is unconstitutional. I fail to see how it can be unconstitutional if it is accepted, and was accepted by the House, as part of the Irish-US Extradition Treaty. It seeks to use the court in the spirit of the Constitution but, at the same time, it does not try to confer on any non-judicial personage any judicial activity or judicial function. I have heard at least one commentator say it is the most sensible of the various suggestions that have been made to try to overcome the difficulties that relate to this whole matter.
So far as this amendment, and the others associated with it, and amendments generally are concerned — we now have 26 of them — it is noteworthy, and this is something that should be said early in the debate, that there are no amendments from the Government. One is entitled to ask why, in view of the relatively diffident speech made by the Minister for Justice last night, in which he was holding himself open to all kinds of possibilities for changes or amendments. Will amendments be made at the instigation of the Government and, if that is the case as one might suspect from the end of last night's debate, will they be Fine Gael amendments? If so, I wonder which amendments they are. It might shorten this debate very considerably if we were to know what the position is in this regard.
It seems remarkable that, for a Bill the Government seem to be so tentative about, they should put forward no amendments or give any clear indication of what amendments they will accept, other than what we got last night at the end of the speech by the Minister for Justice. I had the text in front of me when he was making his speech, but the most interesting things he had to say were not in the text. They were the parts he added at the end. He scrapped the last page or two of his printed text which he had circulated and talked about one or two Fine Gael amendments, including the amendment about reviewing this Bill at the end of 12 months. If I heard him correctly he said he thought there did not seem to be any great difficulty there.
Looking at this amendment today I see that this Bill will go out of effect after 12 months. I wonder if that will be the case? If the alleged safeguard which is contained here, the one we are trying to replace by what I think is a better safeguard, is such that it will be allowed to go out of effect after 12 months then it cannot be much of a safeguard. Is it necessary to have this legislation enacted just for 12 months in order that the pressure under which the Government find themselves, internally or from behind, can be overcome and that then we can get back to what many people might call normality? If it is a 12 month safeguard it seems to be not just an illusory safeguard but a very temporary one indeed, and it is one the Fianna Fáil backbenchers, among others, might well put their minds to at present.
It is difficult to debate this amendment which goes to the very root of this Bill without adverting to the context in which the debate is taking place. Last night I found it disturbing at this time of the existence of the Anglo-Irish Agreement when, on the face of it, Anglo-Irish relations should be at their best, to find salvos crossing the Irish Sea between Westminster and this House, between the British Prime Minister and the Irish Minister for Justice. I am not blaming the Minister for Justice for the rather limited amount he said, but it is a regrettable regression to the bad old days that Anglo-Irish dialogue appears to be carried on once again in terms of public recriminations.
The Anglo-Irish Agreement has been in existence for two years. One of its several purposes was to allow disputes and difficulties between the two Governments to be sorted out on a daily basis within the machinery set up for the resolution of such difficulties or disputes. My information is — and it is not a sudden flash of light or anything because it has become increasingly clear over the past six months — that the day-to-day working of the apparatus of the Anglo-Irish Agreement, which should be used to sort out this type of problem, has largely fallen into disuse, that the agenda is getting shorter and shorter——
I am sorry to interrupt the Deputy, but I must remind the House that this is a Committee Stage debate. I must dissuade Members from embarking on what seem to be Second Stage speeches. The Anglo-Irish Agreement has little to do with this matter.
It has everything to do with it.
It should have.
The Second Stage of this Bill has been completed and we are now on Committee Stage. I ask Members to advert to the amendment before us.
I was putting the amendment which is central to this issue because it is proposing a much less objectionable provision for an objectionable provision. I said we have to do this in the context of the Anglo-Irish climate which, unhappily, has deteriorated. We hear all these recriminations, and I heard more this morning on radio. If we try to view this purely from a British point of view, we can see why they are dissatisfied and unhappy about this provision in section 2 which we are trying to change. They may be unhappy with what we are trying to substitute as well, but it is very regrettable that things have come to this.
Last night Deputy Dukes said he thought the Anglo-Irish Agreement was being adopted by the Government and was being used by them, and he sought to be as helpful to the Government as he could to try to prevent any great falling out with regard to this Bill. I have to say to him and to others that the truth is that the Anglo-Irish Agreement has been gradually let run down. You can kill something with a knife or let it die gradually through malnutrition.
I must dissuade the House from discussing the Anglo-Irish Agreement now. A fleeting reference certainly may be relevant.
I will come back to the details of the amendment.
A Second Reading speech on Anglo-Irish relations is not in order.
As I said, the amendment deals with the necessary application to our extradition law — Article 8 of the Irish-US Treaty. Article 8.4 reads as follows:
When the request for extradition relates to a person who has not been convicted, it shall also be supported:
(a) by the original or an authenticated copy of the warrant of arrest, or equivalent order, issued by a competent authority of the Requesting State;
(b) by the original or an authenticated copy of the complaint, information or indictment; and
(c) in the case of a request emanating from Ireland, by a statement of facts, by way of affidavit or statutory declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it.
We have adapted that concept and feel it should be adopted here because by anyone's standards it is reasonable. It is reasonable as far as the British are concerned because they have been working it for a long time. It is reasonable as far as we are concerned because we are working it also with the Americans. Since both of us are working it with the Americans, there is no reason why we cannot work it with one another. It is not suggested that it conflicts with any of the treaties or conventions. It is compatible with our existing law and practice.
On the other hand, the proposal which it seeks to replace is constitutionally very dubious; it is very doubtful also if it is workable. The point made by my colleague, Deputy McDowell in regard to it the other day was not replied to last night by the Minister for Justice or anyone else. The point was that in section 2, which we seek to replace, there is no obligation on anybody to bring any such application for extradition before the Attorney General. The section is drafted in a most convoluted way which tries to prevent a review of it by the courts and one of the traps into which it has fallen as a result is that there is no obligation to have it examined by the Attorney General. What safeguard is there, therfore, for anybody if it is possible to ignore the Attorney General if it so suits the authorities at any given moment? How can it be argued by anyone here that this constitutes a safeguard if you do not have to go near the man who is supposed to make the decision as to whether you will be extradited?
The Minister said in his speech that they would all have to go to the Attorney General.
The Minister can say all he wants in his speech but that makes no difference. The provisions of the Bill and, ultimitely, if they are passed in the Act, are the only things that count. A person whose extradition is sought cannot go down to the Four Courts in a couple of months' time and argue that while the Act does not make it necessary to go to the Attorney General, the Minister for Justice on 1 December in Dáil Éireann said it was. A person would get short shrift if he tried that argument. I am amazed, in view of the fact that this was pointed out by Deputy McDowell several days ago that no effort was made by the Minister to try to cover this point.
It seems there is not a great desire to make this work or to make it permanent. The real desire is to get over the political hump which the Government see facing them at present. If they can get through the next week or so in relation to this and placate those behind them they will be happy and will have achieved their objective. They do not greatly care whether this Bill, when passed, complicates the situation, provides a safeguard or becomes a happy hunting ground for all kinds of complicated litigation. That is all immaterial to them; they will have achieved their political objective in the short term. Unfortunately, that to a great extent is what it is all about as far as the Government are concerned.
I am disturbed to find the Fine Gael Party going to the lengths they are to try to ease the Government's situation in this regard.
Why should the Deputy be surprised?
I am surprised that they are making it as open as they do because, unfortunately, the question of constitutionality, workability, safeguards or anything else of that nature is secondary to the anxiety at least of Fine Gael to ensure that nothing is done that will rock the boat electorally. Their electoral preservation takes precedence over any other consideration that might be relevant. That is not the way to approach this or any other Bill. If something is wrong — and there seems to be almost universal agreement that section 2 and the use of the Attorney General in this judicial fashion is wrong — then it should be replaced by something that is (a) fair, (b) workable and (c) constitutional. Our amendment meets all those points.
I do not want to get into a long legal argument, because it is a bit sterile, in regard to the whole question of the constitutionality of this but I notice that Deputy Kelly spoke yesterday and that his arguments were adopted last night by the Minister for Justice. What the Minister perhaps did not have time to put into his script last night was the fact that Deputy Dukes, on behalf of the Fine Gael Party, very gently and politely repudiated the views expressed yesterday by Deputy Kelly, as well he might, as do a very high proportion of lawyers in so far as the constitutionality of this Bill is concerned.
It is always possible that the Supreme Court will stand on its head in so far as its recent decisions are concerned. If it does not stand on its head in so far as several of its recent conditions are concerned, then this provision in section 2 which I seek to remove must be found unconstitutional. It is always possible that the Supreme Court, composed of fallible human beings, will act on some occasions otherwise than in accordance with common sense. We had a recent example in this regard when three of the judges in that court upset the ratification of the Single European Act on constitutional grounds. That sort of decision could always happen again and law is an imprecise science. One is always floundering to some extent in a grey area. You can never speak with absolute certainty. You can only speak with a feeling engendered by what has happened in recent years in respect of matters of this kind. There is no question that what has happened in the High Court and in the Supreme Court in recent years in regard to matters of this kind makes it abundantly clear that it is most unlikely that the superior courts would uphold the procedure proposed there. It does not make it certain — nothing is ever certain in that regard — but it makes it most unlikely that they will uphold the procedure proposed by the Minister for Justice. If he is that committed to it, it is fair for us to ask why he is prepared to envisage a period of only 12 months existence for this Bill.
In fairness to myself and many others, I should make a brief reference to Deputy Kelly's remarks yesterday. I do not want to labour the point but he said that the proper test of whether something would be regarded as a judicial function is the historical test and that one should look at historical precedent. He thought there was no reason, therefore, to suggest that bringing in the Attorney General to make this decision as to whether there was aprima facie case or sufficient evidence to warrant extraditing someone was unconstitutional. He also said that if a thing was done in a particular way for a long time it must be assumed that it is non-judicial if it is done by somebody other than a judge.
I respectfully remind him of a case decided last year — the State Clerkv. Roche known as the Senezio case because that was the name of the defendant. A District Court clerk in Dublin had been issuing summonses for countless decades, as his predecessor had done for countless decades before that — back to the Petty Sessions Act, 1851 — was found by the Supreme Court at the end of 1986 to be acting in a judicial manner by issuing a summons for dangerous driving. The Supreme Court found that it was necessary for the clerk to weigh up whether or not there was sufficient evidence before he would issue the summons and since he was not a judge he was not allowed to do that because it was a judicial act. If that trivial matter of issuing a summons for a traffic offence was held by the Supreme Court within the past 12 months to be a judicial act, how, in God's name and in all common sense can the Supreme Court hold otherwise than that the activity proposed for the Attorney General in section 2 is a judicial act? It is about 100 times more serious.
(Limerick East): That was changed here in the House.
That is exactly it.
(Limerick East): The point is that it was a judicial act under the 1851 Statute and not under the Constitution, and the House is empowered to change it.
(Limerick East): It was the wording of the Act. It was not a statutory thing. It was not a constitutional question.
It certainly was. It was decided that the procedure was contrary to the Constitution.
(Limerick East): How could the House change it if it was?
The House has since had to say that it is no longer a matter such as that. We are deciding that it is purely administrative.
(Limerick East): But we did not change the Constitution to achieve that. We simply changed the Act.
Of course we did not change the Constitution.
(Limerick East): Then that is not evidence that this is not constitutional.
You are, therefore, saying this is the same as a District Court clerk issuing a summons, that it is an administrative act and that a summons is issued by pressing a button on a computer and they come out by the thousand.
(Limerick East): No, we are not.
What safeguard is that? You cannot have it both ways.
(Limerick East): That is not the reason that it is unconstitutional. That is what we are saying.
In this case that I have referred to and which interestingly Deputy Kelly did not refer to yesterday——
It is certainly not in the script as supplied. The Supreme Court in that case made it clear that the assessment of evidence, which is much less than the assessment which is required of the Attorney General, is in the words of Chief Justice Finlay inescapably a judicial function. In this respect that case clarifies an issue which was left undecided by the Supreme Court in an earlier case to which Deputy Kelly referred. Citing the Costello case Deputy Kelly neglected to draw attention to or overlooked the fact that the Supreme Court decided that the very act of sending someone for trial based on sufficient evidence was a judicial function. I do not see any real difference between that and what is proposed here.
Another point made by Deputy Kelly but which I do not want to overplay because he was clearly in error in this was his reference to the power of the Attorney General to bring into the Special Criminal Court if he was satisfied that the ordinary courts were inadequate. The Attorney General has no such power. It is brought in by order of the Government and it does not purport to be an administration of justice and at the same time compatible with the Constitution. There is a specific provision under the Constitution to enable the Government to do that and to enable the Attorney General subsequently to send people for trial before the Special Criminal Court. It is recognised in the Constitution that those activities would be unconstitutional if a special provision was not made in respect of them and, of course, the special provision is in Article 38 where a special allowance is made for the existence of the Special Criminal Court at particular times and for this use.
The use of any form of non-judicial personage in this capacity will not succeed. I see no point therefore in the substitution, as Fine Gael propose, of the Director of Public Prosecutions for the Attorney General. While the Director of Public Prosecutions may be more independent and more acceptable from the general point of view because he is not politically involved, the constitutional invalidity of seeking to grant judicial powers to a non-judicial person remains no matter how acceptable he may be as an individual.
There is also the practical point that if we were to appoint the Director of Public Prosecutions to perform these functions, we could not appoint him without his consent. Is that consent fortcoming? Has it been sought? The Director of Public Prosecutions was appointed to an independent statutory office as a civil servant of the State and not as a civil servant of the Government, subject to various conditions. The conditions did not include performing any functions under this Bill. We cannot thrust functions of this nature on him without his consent. It is futile and rather academic to discuss whether or not he can be given these functions if he has not indicated his willingness to accept them. I have not spoken to the Director of Public Prosecutions perhaps since his appointment but I doubt very much that he has been asked or has indicated his willingness to have these powers thrust upon him. Even if he had, his constitutional invalidity is just as great as the Attorney General's.
The one proposal that has been put forward that will avoid these difficulties and will still allow us to retain a workable system of extradition which we have an international duty to retain, and which we have a duty to ourselves to retain, is this proposal. Our proposal will not complicate things or clog them up. It will not make extradition unworkable as a much more detailed procedure would and there is no real danger of its being in conflict with the Constitution. Our proposal affords a reasonable degree of safeguard of a kind already in operation without objection from this country or from Great Britain and therefore it should be acceptable to both. Our proposal is simple and straightforward. It is public; it is fair; and it is not open to the very serious objections that the alternative provisions proposed would be open to. For that reason I ask Members of the House to forget about their various prejudices and pressures and agree to this as a reasonable proposal which reasonable people can reasonably agree to.
A Cheann Comhairle——
I am calling Members in relation to the amendments tabled. There are three amendments before us now, amendments nos. 1, 3 and 5. I am calling Deputy Taylor.
The thrust of amendment No. 3 has a fair measure in common with the amendment moved by Deputy O'Malley but it differs from it in one major respect. Our amendment provides for a hearing before the District Court, as does Deputy O'Malley's amendment, but it also provides that the statement of facts which he refers to is to exhibit within it sworn statements of the witnesses. That is a very reasonable provision. Before a person is extradited the basis on which he is to be extradited must be shown to a court at first hand, not at second hand. I do not accept the format that a statement of facts is furnished saying what witnesses may or may not say. If witnesses are on hand who can set up a case let their statements be put on oath, let them be exhibited in the affidavit of the British Attorney General and submit it. Let a judicial authority, the judicial institutions set up under the Constitution, namely, the courts — in this case the District Court — look at them.
The concept of the Attorney General doing this job I find quite remarkable and unacceptable. The more I have read this Bill and the sections the more I despair of it having any hope of working in an acceptable manner. It is full of inconsistencies and difficulties. Quite frankly, if it ever comes to be operated, I pity the poor Attorney General.
The Minister told us in the course of his remarks — although it is by no means clear from the Bill itself — that all warrants must be referred to the Attorney General with such back-up information as there may be for them. That is by no means clear from the Bill, as drafted. If the Minister says that all warrants are in the same category, what is the meaning of the words "or not required" in line 33 of the Bill? That seems to show that there are two categories of warrants, those where the direction is required and those where it is not.
So the Attorney General, then, receives all warrants — the Minister tells us — in the privacy of his room and he looks at them. I do not know what else he is going to look at. For example, will he look at a letter from the British Attorney General? Will he look at statements of witnesses? Will he look at a statement of facts? Will he have a telephone conversation with his counterpart in London? Will he have a discussion about the case? What will he do? Nobody knows and nobody will now. Yet extradition orders will be made or authorised by him or not authorised by him. Even assuming everything was one hundred per cent and that he operated in a completely independent, objective and judicial manner, even assuming that in fact all that happened, the big difficulty is that nobody will know that. Nobody will know that it was all above board, even if it was above board. People will suspect, people will comment. The media will comment and say it is very strange that an extradition order was made in this case, or very strange that an extradition order was not made in this case. He is not going to be able to answer for that to the media. I will tell the House where he will have to answer for it. He will have to answer for it in court. It seems to me that in every single case the unfortunate Attorney General will be amenable to be brought into the District Court and put into the witness box. There will be the pressure. "Mr. Attorney General, take the oath;""I swear by Almighty God" and so on, and he will be amenable there to the examination and cross-examination of solicitor and counsel for a person who is sought to be extradited.
The Minister is correct, of course, in that he who asserts must prove. If he wants to assert about the Attorney General he willsub poena the Attorney General in every single case. I ask the House if it is an acceptable spectacle, that the Attorney General of the country should find himself in the witness box in every single case? The sorts of questions that will be put to him will be: what papers did you examine, Mr. Attorney General? What intention did you form? What was your opinion as to the British Attorney General's view of the evidence? Did you satisfy yourself that the British Attorney General will continue with the case? On what basis did you satisfy yourself that the British Attorney General will continue with the case? I contend that that is a totally unacceptable situation.
We are here dealing with evidence, be it the Attorney General making the decision or be it the District Court making the decision. In section 44B (b) one is talking about sufficient evidence. Therefore, the question of the sufficiency of evidence comes into play. If this goes through, one way or another, the Attorney General will have to make a decision as to what is or is not sufficient evidence. He will be asked about every single warrant, about what papers were produced to him. He will find himself in an impossible, unacceptable position. Why put him in that position? It is totally wrong. It may well be unconstitutional. It is totally unfair to a high legal officer of the State to put him in that position when there are already set up a team of judicial officers, namely, district justices, whose job it is to examine the evidence in cases of this nature.
Questions have been raised here about the constitutionality of the Bill. There have been arguments put forward that it is constitutional or is unconstitutional. The truth of the matter is that none of us here can pass any definitive opinion on that. It would require a decision of the Supreme Court to determine whether this Bill is constitutional. We are talking about a completely new situation. Precedents may be helpful — and precedents have been cited here on both sides of the House to argue for or against the constitutionality of this Bill — but none of them covers the case exactly. We are dealing with a new situation. If this goes through I have no doubt that the matter will be referred to the Supreme Court for determination. I will give my opinion for what it is worth: probably it is constitutional but, by no means, would I bet my bottom dollar on it, far from it; one could not be certain about that. None of us here in this House, giving our opinions and quoting law cases, could be certain of it by any means. It is a completely new situation, a completely unwarranted situation. At the very least there must be a fair chance that it would be held to be unconstitutional. Whether it is unconstitutional or otherwise, the point of the matter is that the scheme of operations set up here is totally unacceptable, totally unworkable. It will lead to the Attorney General being in the witness box in the District Court and/or in the High Court in every single case.
How will we operate an extradition system on any basis if we find ourselves in that position? How will we operate an extradition system in which the whole legal minefield of cross-examining the Attorney General as to what was in his mind, what he examined, what decision he came to is up for grabs?
This Bill is a misnomer, the Extradition (Amendment) Bill. Somebody here ought to be proposing an amendment to the title, perhaps something like the constitutional and criminal lawyers endowment and enrichment Bill might be altogether a more appropriate designation. I would imagine that the constitutional and criminal lawyers down in the Law Library must be rubbing their hands with glee at the prospect of the litigation to which this will give rise. The purpose of it all is to provide safeguards — of course that is essential — but the concoction, the cocktail that is produced here — as I said in the course of my Second Stage remarks — is an attempt to find a compromise position between the requirements of the Fianna Fáil backbenchers on the one hand and the British authorities on the other. It would appear that the Bill has failed dismally on both counts. Certainly the British are far from satisfied with it and, by all accounts, the Fianna Fáil backbenchers do not seem to be happy about it either.
We say simplicity is the essential requirement in an extradition position. There is a basic, fundamental decision that has to be addressed here. I want the Minister to address himself to this. Does he regard this function, the decision of the final arbiter on extradition — yea or nay as to whether a person is to be sent out or not — a political decision or a judicial decision? We ought to know that. Is it a political decision or is it a judicial decision? If it is a political decision the Minister himself is the political officer. He already has the power under section 44 of the 1965 Act to withhold warrants, not to back warrants. In addition, he has the power to refer the matter to the High Court for determination. If it is a political decision why bring in the third element of the Attorney General? What does that add to the procedure? If political decisions have to be made as to whether or not warrants should be backed, then let the political officer concerned, namely, the Minister, exercise the powers that he has and has always had under section 44 of the 1965 Act. The Attorney General is also a political officer. He is the adviser to the Government. He is appointed by the Government and can be sacked or removed by the Government if they are so minded. He is caught up in a political situation.
We know that the present Attorney General and any other Attorney General would do his best to apply an independent mind to any decision that was put upon him, unwillingly put upon him, I would imagine. Nonetheless, he has a close political affinity and that will be seen and called into question in the public eye. Therefore, it is a political decision. There is no need to involve the Attorney General. It should be left to the Minister to deal with it. He is the political personagepar excellence on this issue. He already has that power. He can give a directive under section 44 that a warrant should or should not be backed. I believe it must be a judicial function and that it is not in any way comparable to the types of decisions that are given in tribunals or by commissioners of income tax where decisions are given by people who are not judges. This is a different category altogether. It deals with assessment of prima facie evidence even the Attorney General's own function under the Bill puts a prima facie decision-making process up to him. He has to deal with whether or not there is sufficient evidence there. The Bill itself refers to sufficient evidence, and if you are talking about sufficiency of evidence you are talking about a prima facie situation.
The wordsprima facie have been bandied about. The Minister referred to what I said on that matter in 1986. In return I should refer to what he said on the issue in 1986. On 12 December 1986 in the debate on the Extradition Bill, 1986, column 2688, volume 370, the then Deputy Collins said of the Minister for Justice:
He must have been very upset later in the week when the Taoiseach on a visit to Galway, having flown from London with his batteries charged afresh by those he met in London, felt it necessary to take on the strong-arm approach again and say there would not be any surrender whatsoever in regard to theprima facie matter. I regret that.
Those were the words of the present Minister for Justice in 1986. Deputy Woods who was then Fianna Fáil spokesman on Justice said on the Extradition Bill, 1986, on 4 December 1986, volume 370, column 1389: "...we will be pressing for the requirement that aprima facie case be shown in extradition proceedings where appropriate”. On the same day Deputy Woods stated at column 1409: “The safeguards which were associated with the old prima facie rule must be restored.” There are many other examples not only by the Minister for Social Welfare and the Minister for Justice but by quite a gamut of Fianna Fáil backbenchers who argued the point.
The 1957 Convention was raised and the difficulties that would arise in that regard. That is a contractual arrangement between states. As we know the UK have not ratified the 1957 Convention and consequently there is no objection whatever to having some form ofprima facie requirement introduced to provide a very basic and bottom line safeguard before our citizens are extradited to the UK.
As I have said, the expression,prima facie requirement, has been bandied about but it can mean different things, and different conditions can be set to it. The Taoiseach, when he introduced this measure, proceeded on the basis that a prima facie requirement would mean statements of witnesses and the production of those witnesses from the UK or Northern Ireland or wherever, in the courts here. That does not necessarily follow. I agree that would be too untoward a requirement to have. We have deliberately avoided any question of a necessity to call prosecution witnesses in the District Court to enable the district justice to make his determination. We have provided that the district justice would look at the sworn statement of facts and the sworn statements of the witnesses that would be exhibited in the British Attorney General's outline of the facts. It is on those statements alone that the district justice would base a view as to whether a reasonable case was established.
Anyprima facie test, whether it be a full blooded one on oral evidence or simply based on sworn statements, is a very low level of safeguard. I would have little trouble in devising far more substantial safeguards than a prima facie requirement based on sworn statements of witnesses. I could devise a much stronger scheme than that. That is about the lowest scheme that one could devise unless one is to say that all that is required to extradite somebody is the request — that a warrant is sent and no reason or explanation is given. If anyone is advocating that kind of proposition, that you just ask for the person, receive him and deal with him thereafter, they should say so. However, if we are saying that a safeguard is required, what I and the Labour Party are suggesting in amendment No. 3 is the lowest possible form of effective safeguard. It is a basis safeguard. It is the bottom line and I do not see how we can pitch the matter lower than that.
Our citizens are entitled to that protection. We are entitled to know that the right person is being extradited, that there has not been some mistake in identity and that there is some basis in sworn statements whereby if the evidence in those statements stood up at a trial the person could be convicted. It may be that the witnesses who are making those sworn statements would be proven to be liars or unreliable, that their evidence would not be acceptable, and the person would be acquitted. At the very least it must be shown, where it can be seen in open court, that this is the person, that the identification is there and the evidence on sworn statements. The district justice looks at those statements and decides whether, if all the evidence and documents shown are correct, there is a case to answer. That is what district justices do day in and day out in every District Court up and down this country. For the life of me, I can see no basis for getting away from that established set up which is already there. We do not have to create or devise any new procedure for this purpose. It is not necessary. The whole establishment is set up. The judicial procedures are set up. It is well taken care of.
To come to this weird concoction of the structure of these sections, 44A, B, C and D, it is so convoluted that quite frankly what it will give rise to down in the District Court, the High Court and the Supreme Court just does not bear thinking about. I just cannot imagine that this will work in any way at all. The mind boggles at what the effect will be. With the negatives and the double negatives, the Minister's suggestion that every single warrant will now come to the Attorney General to be examined with goodness knows what material, goodness knows how he will look at it and in what context he will assess it. Yet he will be answerable in the witness box in every single case for what he did, how he came to various conclusions and were they reasonable. He may be asked if he telephoned the British Attorney General to see what else he had on offer, that perhaps the British Attorney General is "faxing" things over to him. Maybe he will do it all on fax machines, and we have seen how that system operates.
We want to be helpful on this issue. We do not want to see enacted into law a system that will bring the matter of extradition and our whole administration into disrepute, and I firmly believe there is a fair possibility of that. As it stands, the whole thing is totally unworkable. We want to be helpful on this issue. We want to devise a system under which extradition, in appropriate cases, can and will work in a straightforward, open and simple manner. What could be more simple and straightforward than a situation where the British authorities say they want to extradite Mr. X for an alleged offence, send over a warrant and statements which are examined in open court by the district justice who is trained in this job, and if he finds that there is a case, he makes the order which is seen and above board? I urge the House strongly to consider the amendment on that basis.
Deputy Pat McCartan whose amendment No. 5 is before the House.
I had hoped that amendment No. 4 would have been taken in tandem with amendment No. 5 or that I would have had the opportunity to approach you in your office.
I have pronounced clearly on that matter. It is out of order.
We were anxious, nevertheless, to be in a position to move both. I accept the ruling of the Chair for the moment and look forward to having an opportunity to speak to you about it.
Our anxiety was that in proposing and pursuing the cause ofprima facie case as a requirement in the extradition law it would apply not just to our affairs with Britain but elsewhere. The discussion here today can be simplified to some degree by moving only amendment No. 5 for the moment. Our proposal in respect of amendment No. 5 is to amend Part III of the 1965 Extradition Act to insert a new section before section 42 of that Act to provide for the following:
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 aprima facie case of involvement in the offence alleged.'.”.
The amendment reflects the proposal pursued by the party in the debate in 1986 when we were dealing with the European Convention on Terrorism and its implementation in our domestic law and again it affects the Private Member's Bill circulated with the agreement of the Government to Members of the House earlier in this session. For that reason it helps to illustrate the consistency that The Workers' Party have maintained on this issue, a consistency that is there simply because we are looking to first principles and to established principles in relation to a code of extradition law. We have not, as a party, engaged in efforts to introduce hybrid arrangements, new concepts or concepts that are wholly inappropriate to the judicial process of extradition that is being sought to be entertained here by the Government and, most surprisingly, by Fine Gael in so called constructive Opposition.
The amendment we are proposing should commend itself to the House for a number of very specific reasons. First, it involves a specific declaration of requirement and involves no play on negatives or double negatives, as is involved in the scheme of things under the provisions of the Government's Bill. In this regard we do not accept the obligation by implication that the Minister spoke of last night on the Attorney General to scrutinise all warrants seeking extradition of persons from this country to Britain.
Our amendment is specific in using the word "shall". We cannot see why, if the Government seek or want an active obligation to rest on the shoulders of the Attorney General, they cannot specifically say so. We are completely suspicious of the use of the double negative ploy that is involved in section 2 of the Bill as they propose it. Our reading of it, rightly or wrongly, is that there is no active obligation on the Commissioner of the Garda Síochána to convey any warrants to the attention of the Attorney General to seek his views on the matter at all.
Second, our amendment requires the procedures of establishment or not of aprima facie case to be taken in the District Court in the first instance. It is essential, if we are talking about safeguards of the liberties of innocent people, that that is done openly and in full view of all concerned. The concept of this being dealt with privately, however well intentioned, on grounds that will never be made known to us, in a context that will never be clear to us, is not an acceptable way of dealing with this matter. It amazes me that those persons within the Government party who are concerned about the introduction of safeguards could have accepted this as an effort to introduce a concept of safeguard.
Third, it introduces the notion of evidence. There is nothing in section 2 of the Bill that suggests what will be the standard of proof or what will be the equality of proof the Attorney General must or should be satisfied with before he acts under the provisions of that section.
Finally, there is the very clear regime that until all these matters are satisfied, no order for extradition should be made. Central to our amendment is the whole question of the desirability of theprima facie test. We have consistently pursued that as a principle of safeguard to be incorporated not just into our arrangements with any one country, in this instance Britain, but with regard to all countries. It is a standard, internationally recognised feature of extradition law. There is nothing new, untypical or unusual about it. It is employed world-wide. We fail to see why the Government, who less than a year ago argued so forcibly for such a concept, would now a short time later have abandoned it for entirely spurious reasons.
The Taoiseach in his address to the House when introducing the Bill on 27 November 1987, advanced two reasons as to why aprima facie case now would not be acceptable to Fianna Fáil. First, it would in some way or other involve us having to depart from the 1957 European Convention on Extradition. That, of course, is grossly untrue and is misleading this House, because Britain to whom we are addressing this Bill is not a party to that Convention. It may well be that they are contemplating it, it may well be that for some short time now they have recognised the trend of the deliberations and discussions taking place both at Anglo-Irish level and in the Dáil on extradition. It may well be that the views of Fianna Fáil and many others expressed in this House over a year ago have spurred them on in their efforts to seek accession to the 1957 Convention. As it stands at present they are not a party, and any introduction in our affairs or relationships with Britain of a prima facie requirement has no implication for us at present in regard to our ratification of the European Convention of 1957.
The second point raised by the Taoiseach in his address was that the introduction of aprima facie requirement would be, and I quote, “a major practical obstacle to extradition”. Again, we would refute that suggestion. There is no reason why a prima facie requirement should ever be seen as an obstacle, and to the extent that it might ever become an obstacle it would be so as a mechanism of safeguard that Fianna Fáil themselves so eloquently spoke about a year ago and have been so concerned about in the context of this Bill. If there is a balance to be drawn, we would say that if an extradition request is to be delayed and made more cumbersome in the pursuit of safeguarding the rights of an innocent person, then that is a desirable set of circumstances and the balance must tilt in favour of the innocent in this regard.
It is always a source of regret that major legislative reform, particularly in the criminal law area, is debated in the context of some major atrocity where the prospects of reasoned, measured debate is very limited because of the exigency of the moment. However, if one applies and stands by first principles in these debates, then I do not think we should get ourselves into the difficulties and contortions the present debate is presenting to us.
The Minister for Justice in his closing remarks took up substantially the Taoiseach's second point as to a reservation aboutprima facie presenting, and I quote, “an excessive restriction on extradition”. As I have stated, the prima facie requirement exists on a wide scale throughout international arrangements in regard to extradition and in all of those cases presents no obstacle or no excessive restriction than any of the practitioners or observers, academic or otherwise, on the working of extradition have ever identified or sought to state.
What are the reasons the Minister and the Government consider they might well represent an excessive restriction? It has been suggested that it may involve bringing forward witnesses or documentation and evidence that would make the process cumbersome. The Minister has stated:
It could or would also mean if the same level of protection were to be afforded as in an internal case, that witnesses from the foreign jurisdiction would have to be available to be examined upon their sworn depositions should they be called upon to do so.
Under the 1967 Criminal Procedure Act, the District Court engages in a preliminary investigation, so-called. It is laid down clearly what that investigation should be based upon, what documents should be produced and procedures established to deal specifically with that. Nowhere in the 1967 legislation are the words "prima facie case” used.
The section, if I recall it correctly, talks about the district justice making orders if he is satisfied there is a case to answer — that is often used in court parlance as amounting to a finding ofprima facie case. That term, as far as I understand, is nowhere legislatively defined, nor has it been given very clear judicial definition. It is a term loosely employed, probably wrongly, in the context of a determination of a preliminary investigation, but it is a concept well known, as I have stated, to extradition law, but again without clear judicial definition. There is nothing to stop the Government in relying upon it as a process or concept to make specific statutory definition or regulatory definition of it. There is nothing that makes it incumbent upon the Government, if they were to employ it in extradition law, to make it similar, analogous or as extensive as the requirements under the Criminal Procedure Act, 1967.
The Workers' Party in proposing the concept of aprima facie case in the context of extradition make no case that it should be as extensive, as involved, or to use the Minister's terminology “as cumbersome as” the procedures under the 1967 Criminal Procedure Act. We are seeking to establish that the cause for the warrant of extradition is subtended by sufficient evidence and that that adjudication is made in open court by a member of the Judiciary. That is all we ask for. If that can be done, and I have no reason to believe otherwise, on the basis of documentary evidence, so be it. If it involves the restriction on the calling of witnesses, so be it.
The Government under the Criminal Law (Jurisdiction) Act, 1976, brought in an amendment to restrict the working of the 1967 Act procedures, whereby a district justice, where he or she is of the opinion that a witness called for by the defence is outside of the jurisdiction and it would be impracticable to call them, may rule and dispense with the calling of such witnesses. That happens on a daily basis in our District Courts.
As I have said, the proponents of theprima facie requirement in extradition law make no case that it should be the same regime as applies to the procedures under a preliminary investigation in the terms of the Criminal Procedure Act, 1967. We are contending for open deliberation by a judicial person, where the individual concerned has the right to be represented, to be heard, and to question.
The Government and the Taoiseach, in particular, sought to underscore the importance of this Convention of 1957 and warned those who talked about aprima facie case that if they advocated the prima facie requirement we should be absolutely clear that that is what it would mean, namely, departure from the 1957 Convention. Even if that were so, we would seek to argue that the consequences of that are not as disastrous as the Government, or anybody, would like us to believe they would be. There are many procedures available to the Government in the context of the 1957 Convention. There is nothing to stop us from denouncing, under the Convention, our membership and seeking to renegotiate, or indeed under the terms of our ratification to seek an amendment, or a further delcaration or reservation, to that ratification. On close examination of that Convention, looking at the various positions of the parties to it, one wonders whether the Convention, was ever necessary. Clearly, it was a desirable development in so far as it got countries talking and agreeing and, for example, it may well have been the vehicle that prompted us to bring in our 1965 Act in the first place, because within a short number of months of that, in 1966, for the first time we ratified the Convention.
Let us look very briefly at some of the positions of our partners in Europe under that Convention. Let us see what they have achieved in the protection of their citizens and other persons, how they have sought to implement the terms of that Convention. Austria, for example, requires that where a provisional warrant is sought it should be accompanied by a short statement of facts. That country will not, for example, extradite people to countries where there are special courts established, or where the death penalty may or will be imposed. Austria, consequently, under the Convention would not extradite persons to stand trial in this country before a Special Criminal Court for a capital offence.
Cyprus will not extradite its own citizens or nationals and again will not extradite for an offence involving the death penalty. Denmark will not extradite persons to stand trial before special courts, and has a special reservation that it can consider the age, health and other personal reasons of the person sought before it will agree to the extradition. It has a very important reservation that goes far beyond that ofprima facie. I shall quote it because it is worth looking at what countries are prepared to do and are doing under this universal European Convention on Extradition. It has a reservation under Article 12 in regard to the area of prima facie evidence and I quote:
The Danish authorities may require the requesting country to produce evidence establishing a sufficient presumption of guilt on the part of the person concerned. Should such evidence be deemed insufficient, extradition may be refused.
The Deputy might reasonably have read the first part, as well.
There we have a position where Denmark, a party to the 1957 Convention, has, in effect, aprima facie requirement built into its agreement to and participation in that Convention and does not, as a consequence, have to depart from, or leave the Convention. Why cannot Ireland work to achieve that?
The Federal Republic of Germany, for example, makes a requirement that when the documents are sent from a requesting country they should be in the German language, not in the language of the country asking for extradition. France will not extradite people under the Convention to a country which is trying people before tribunals that it considers do not respect the rights of the prisoner or person in the dock, or that do not respect the proper rights of defence. It will not extradite its nationals and requires a short memorandum of facts to support the request for a provisional warrant. That does not involve France having to depart from the Convention. This is a position they negotiated under it.
Iceland reserves the right to request evidence to be produced to support any request for extradition. Italy refuses to extradite for capital punishment, or with regard to an offence involving capital punishment. Liechtenstein does the same.
The Aran Islands, Tory Island.
Luxembourg states that it will reserve its right——
——to extradite where it is concerned on humanitarian grounds and, again, will not extradite its own nationals. Norway has a specific requirement that aprima facie case be established and, again, it is not called into question with regard to its membership of this Convention.
Spain refuses to extradite to a country where the trial will take place before a special court. It is quite interesting to consider this. We have agreed to the Convention under which, if the perpetrator of Enniskillen, or whoever has committed a terrorist offence in this country, finds his or her way to Spain, we will not be faciliated in an application for the extradition of that person back to our jurisdiction because Spain reserves that right not to extradite to special courts. I wish to underline that, in all, upwards of seven of the countries with which we have negotiated this Convention reserve the right to refuse to extradite people back to stand trial before courts like our Special Criminal Court.
Sweden, most strongly of all countries, reserves not only the right to question the basis for extradition to stand trial, but the right to question the actual trial, conviction or sentence imposed by a requesting country. Even if the person is a fugitive from conviction in another country, Sweden can say that it is not happy with the way in which the trial was conducted, that it feels the verdict was perverse, or that the sentence is unreasonable and may refuse to return a person back to meet that conviction, or serve that sentence. Yet Sweden is a member of the Convention but has no difficulties whatsoever. The same applies to Switzerland, in regard to refusing to send persons before an "extraordinary court or tribunal", the terminology used. Israel requires sufficient evidence. Finland refuses to extradite for trial before special courts.
The point that I am coming to is this: the bland statement of a threat from the Govenment to those persons who pursue the cause ofprima facie evidence that it has some serious implications for us in regard to our international obligations abroad is doubly wrong, first, because Britain is not a member of this Convention in the first place and, secondly, even if it were, there is nothing to stop us from renegotiating our position, drawing ourselves into line with the positions adopted by countries which are parties to that Convention. We would certainly not be out of step. If anything, even if one takes a brief review or overview of the positions of the other countries, Ireland was very dilatory in 1966 when it negotiated its ratification of the Convention without having any regard to proper safeguards and adopted a position where by it abandoned, for the first time, the long-established principle of prima facie evidence was a precondition to the extradition of any person from our country.
It was never part of our law.
More recently, our agreement with the United States contains the clause "reasonable grounds for believing" that the person sought was responsible for the crime under investigation or pursuit. What is so exceptional about our ratifying the Convention of 1957? The amendment we have tabled relates only to Britain. It is open to us to pursue the cause for aprima facie requirement independent of the considerations of the 1957 Convention. I hope the Government do not look to the provisions of that Convention as an aid or source of inspiration in trying to put down the cause for a prima facie case.
I hope the Government will not advance the argument that aprima facie requirement would be a gross interference or an excessive obstacle. If the Government are abandoning the case they made less than a year ago, they will have to admit they are doing so for other reasons. Those reasons may well be found within the confines of their deliberations with Britain as to how their relationship will progress in the future in the context of cross-national and cross-Border security co-operation and the Anglo-Irish Agreement. It is quite clear that the Government in drafting this Bill had received no commitment or agreement from the British authorities to co-operate with our Attorney General in the exercise of the functions he may have under this Bill. Because there will be no positive duty on the British authorities to convey the document to the Attorney General's Office and because the old arrangement under the 1965 Act where the document was forwarded from one police commissioner to another still stands, it is quite clear that there has been no promise of co-operation with the British authorities.
It is not made clear in the Bill as to what documents the Attorney General will consider in the course of making his deliberations and there has been no promise or agreement received from the British authorities as to what documents they will send. In the McGlinchey extradition debacle, the Supreme Court was convened at short notice to sit late into the evening following which McGlinchey was sent across the Border to meet a case in which clearly there was insufficient evidence against him. We then had to seek his return to this country to meet a charge where there was clearly sufficient evidence against him. All this was done in consultation with and on the advice of the Attorney General.
No other case illustrates better the pitfalls and dangers that will creep into the process under this Bill than the McGlinchey saga. There is no doubt the Attorney General was involved on a day-by-day and a minute-by-minute basis in what had happened then and that he advised the Government on it. At the end of the day can we say that he as a law officer and as an independent legal mind gave due consideration to better or proper procedures in that case? I doubt it. I have no doubt that in the future similar situations with equally important political considerations will arise and that equally foolhardy and unsafe decisions will be made if this procedure is allowed to continue.
I thought this House might address the comments which are being made by British political commentators but I am more prompted to address a comment which I heard from the Fine Gael benches a few months ago which seemed to suggest that theprima facie requirement was not known to our law in regard to extradition prior to 1965. I see Deputy Birmingham nodding his wise head slowly in agreement.
You do not know George like I do.
I refer him to any of the basic standard textbooks on extradition. The one I have to hand is not by Mr. Ford which is the one everyone else seems to be relying so heavily on but even he accentuates the point which I would like to make and perhaps in the first instance I will refer to what he said, namely, that the vast majority of extradition arrangements throughout the world contain someprima facie evidence requirement. We supported the argument, which I put forward earlier, that it is open to each country in the context of each agreement to establish what it considers to be sufficient for the prima facie process when he said what precisely is meant by a prima facie case depends on the very terms of the legislation and the treaty in question. Therefore, there is no hard and fast rule which says it must be what is envisaged under the 1967 Criminal Procedure Act in regard to domestic proceedings.
This morning on radio we heard Mr. Ivor Stanbrook, QC, who is an MP for the Conservative Party. He is very concerned about what we are doing in this country. His textbook on extradition published in 1980 underlined the fact that from the inception of the extradition procedure as a phenomenon in criminal practice arrangements between countries, Britain and Ireland — we were then a party to the jurisprudence of that country at the time of the Extradition Act of 1870 — inserted in their arrangements with Commonwealth and foreign countries that in addition to the formal matters which must be proved, the evidence taken as a whole must proveprima facie guilt of the crime being evidence which would justify the committal for trial of the accused person if the crime had been committed in England. Section 10 of the Extradition Act, 1870, established in statutory form internationally accepted principles with regard to extradition and they were equally applied in this country. He also dealt with the relations between Commonwealth countries and said that the same considerations applied.
The point has been made that the reason Britain never ratified the 1957 Convention was that it wanted to reserve a position of superiority over its erstwhile colonial countries. It was repugnant to their notion of the great empire that a former colony could look for one of its citizens to be sent for trial for crimes committed in the colonial country without that country establishing aprima facie case or rule. That was why they never entered the 1957 Convention. That is why they did not want to be tied by the basic principle of that Convention and why they reserved to themselves and have done so to this date in their relationships with many of their former colonies, the requirement of the prima facie rule.
The Workers' Party have from the outset of this debate argued thatprima facie is nothing unusual. It is typical of extradition relationships and order. It is standard to this type of jurisprudence because it enables the requesting country to safeguard its citizens or those persons found within its territorial bounds in the tradition of asylum. While the PDs' amendment in substance and in the majority is non objectionable, for some curious reason it is confined to Irish citizens. That may well be because they borrowed it substantially from the Washington agreement. Perhaps they will consider before the debate concludes whether the wording “being a citizen of Ireland” should be deleted from their amendment. We fail to understand why the rights sought to be introduced here in a code of extradition should be confined to Irish citizens with a consequence that a person who, particularly in the context of the EC or whatever, is residing here but is not a citizen of this country would not be entitled to the same standards of proof as we would seek to introduce for our citizens.
I must make it clear before I sit down that we find the position of the Fine Gael Party, utterly contemptible in the whole debate on safeguards. Deputy Barrett sought to imply that the high water mark of their contribution to this debate is to transpose the Office of the Attorney General with the Office of the DPP and there it ends. Unfortunately, it does not. In amendment No. 14 they are suggesting that at no stage, once the DPP gets hold of it and makes his ruling, will any court, district, high or elsewhere, have any right, good, bad or indifferent to comment, review or examine that direction or finding. It is unbelievable in the context of safeguards that they want to take away from our courts the right to have any function. Even the Fianna Fáil Bill in all its imperfections concedes that where the Attorney General takes action it is open to court review, but the Fine Gael Party are denying all that in pursuing amendment No. 14.
In amendment No. 15 they are restricting substantially the right of representation to the Attorney General. By implication they accept their defeat on the issue of the DPP in preference to Attorney General because further on in section 2 they say that the Attorney General cannot be represented to for and on behalf of a person whose extradition is being sought and who is subjected to the direction.
I said, "or the DPP". The Deputy reads only what he wants to read. It is better to ignore these remarks and gibes.
Are they not prepared to address the desirability ofprima facie as a safeguard?
He is talking up in the clouds.
In fact they are coming more to the aid of this Government in seeking to restrict any form of review by ultimately taking away from the court in particular the right of comment. It is incredible from a party who profess any element of opposition——
Proper constructive opposition.
—— in their brief and work within parliamentary debate. For those reasons The Workers' Party propose amendment No. 5 and commend that amendment to the House as a meaningful way of introducing an element of standard international procedure and practice into our domestic law with regard to extradition for all the reasons advanced here on Second Stage. I ask the House to support the amendment.
Deputy McCartan has made a persuasive case for the general admissibility of theprima facie requirement in international extradition arrangements. We would not be as rare as Easter Islanders or anything of that sort if our extradition arrangements contained a prima facie requirement but all that argument, eloquently though it was presented, is entirely beside the point.
Our arrangements under the 1965 Act and under the Act which came into force 36 hours ago do not contain such a requirement. It is central to this whole discussion that the regime of extradition we have had with the British for the past 22 years by itself completely gives the lie to what Mrs. Thatcher is reported as having said in the British House of Commons yesterday. Far from the British being the least favoured nation, they have been for 22 years — at least in every respect except that of the political offence until lately — the most favoured nation. They are the only nation or state in the world in respect of whom a simplified, streamlined extradition procedure has been provided here by Statute.
There is no need for a treaty between ourselves and the British; nor has there been since 1965; whereas every other state must go through the negotiation of a treaty with all the built-in provisions, affidavits, requests and so forth. That is not and has never been necessary in arrangements between ourselves and the North or between ourselves and Britain. It has been a purely administrative police procedure, rightly or wrongly, whereby a warrant issued by the British or Northern Ireland police authority is endorsed and executed here andvice versa. No other state in the world has got that treatment and, for Mrs, Thatcher when she finds the first obstacle thrown in her path, to speak petulantly as she did yesterday is out of place.
The procedure here has been, rightly or wrongly, an administrative procedure. When I hear complaints about this Government, admittedly due to their own internal political actions in order to try to keep happy people whom their ludicrous posturing for a number of years on these matters has disposed to be difficult, let me say that at least they are trying to undo the damage which they themselves caused. When this Government try to interpolate something which they represent as a safeguard and which I accept they intend as a safeguard, which does not go very far but goes far enough in giving us a fair chance to be certain that the intention to prosecute is there and is reasonably founded, to have the insinuation cast in the House of Commons that we are now going to make it easier after all for this country to harbour terrorists reflects the very bad advice the British Prime Minister was getting from somebody.
I am speaking as a member of a party who presumably are keen to see the Act which came into force yesterday stay in force. We passed it against a lot of opposition which I will not go back on and raise weals about now. We passed it and presumably we still believe in the principle of it and we are anxious that not only should it have come into force but that it should stay in force. If a certain price has to be paid in order that that should happen I, for one, am not unwilling to pay it. I would have hoped that the British Government would take enough interest in what goes on here to understand that there were only two alternatives. Everyone who has followed events in this country for the last month must realise that. Either this safeguard, such as it is, or something like it, is inserted in order to keep the bulk of the Fianna Fáil backbenchers happy or we will not have any additional Act at all.
I have no doubt in my mind whatever, and I had no doubt from the moment when the Government Press Secretary floated his absurd chestnut about the British Ambassador twisting arms, that the intention that side was to bring resolutions into this House and the Seanad to prevent that Act from coming into force. Events made them change their minds. I respect anyone who changes his mind for a good reason, we should be glad that they changed their minds. If the price they had to pay in their own ranks for changing their minds was this Bill that should dispose, some of us at least, to see what can be said in favour of the Bill and making it as easy as we can. That would not lead me to say something I did not believe. I would stay quiet or stay out of the House rather than that.
I genuinely do not share the apprehensions expressed from that corner of the Chamber in regard to the impropriety of creating this additional function and vesting it in somebody who is not a judge. A member of the Garda Síochána or a private citizen when initiating a prosecution has to make up his mind in his own humble way as to whether there is a sufficiency of evidence. This is for his purpose, namely, will he make a fool of himself by launching a prosecution which nothing can be got to support. If he is a member of the Garda Síochána he must ask himself whether he will run the State into needless expense by launching a clearly baseless prosecution. Everybody has to make decisions — civil servants and other officials have to make decisions all the time but that is the decision a member of the Court has to make for himself. That does not make it a judicial decision but if I were to believe the Progressive Democrats, the Labour Party of The Workers' Party, it does. A member of the Garda Síochána is in the same position in that regard as the Director of Public Prosecutions or as, until 1974, the Attorney General was. They, too, have to make up their minds whether there is sufficient evidence there to ground a prosecution. I hope I do not need to labour this point to any lawyer in the House.
There is a difference in quality — in concrete terms it would be difficult to explain it to a layman — between the degree of certainty, the degree of conviction that you are required to carry in your mind between the amount of evidence you believe you can produce, and which you feel will justify you in launching and conducting a prosecution, and the amount of evidence which, if you were up on a bench, would allow you to feel justified in convicting someone. Do not ask me to weigh on a diamond scale the difference in the weight of these two volumes of evidence. I cannot do that but the function of deciding whether you have enough in the dossier to justify the expense, the trouble and the possible humiliation and public annoyance of prosecuting someone if you fail is a different legal and intellectual function entirely from the function you would be discharging if you were a judge or a member of a jury or a member of the Special Criminal Court sitting and trying to decide whether beyond reasonable doubt somebody is guilty.
I cannot see that there is any serious difference between the function the Attorney General is sought to be given by this Bill and the function which until 1984 he had in regard to deciding whether there was sufficient evidence to prosecute someone. He was not required to decide whether the person was guilty. All kinds of slips can happen between the time when a decision is made to prosecute and the moment when the judge or jury must find a verdict. All kinds of things can go wrong. There can be thrills and spills all along the way, technical, factual and everything else. That was not the Attorney General's job. It is not the job of the Director of Public Prosecutions and it is not the job of a member of the Garda Síochána to decide whether there is sufficiency of evidence. All he is required to make his mind up about is whether, for his purpose, for the purpose of the operation of his cog in the machine, there is enough evidence to justify him in doing what he is paid to do, namely launch a prosecution.
In another jurisdiction.
The fact that this function is incorporated in an extradition process is not the same as saying that the Attorney General will send someone out of the country. That is not the case. The Attorney General, if he were to address his client on the question of whether somebody should be extradited, in discharging the function which this Bill proposes to give him would be actingultra vires. He would be completely exceeding his function and to that extent I think that what was said by Deputy Taylor an hour ago is correct. He did not make this point but he did make the point that there is a political discretion in the Act, in the first subsection of section 44, vested in the Minister and that is where it should be vested. The Attorney General is not given that discretion. If he allowed his modest and limited function under this Bill to be overborne, to be distorted or to be reflected by considerations of whether he should extradite someone, he would be doing something over and above what the law here — if it becomes law — will entitle or authorise him to do. He is required——
He needs the backing of a warrant.
The consequences of what he may do cannot affect the jurisdiction which is confined within four corners. He is required to decide only two things; whether there is an intention and whether there is sufficient evidence to support that intention. He may be bitterly opposed for personal, political or for all kinds of reasons and he may have his own ideas about the policy of extraditing a person. If he allows these matters to influence him he is stepping ouside his lawful authority. I am not so naive as to suppose that it will be easy to pin that on an Attorney General who misbehaves. What I am saying is that the sections which are proposed to be interpolated into the 1965 Act give the Attorney General one function and one function only, that is, to make up his mind, under two heads, in accordance with section 44B. He has no function whatever to decide in that context whether an extradition is desirable. It would be completely incompetent of him to decide because he is not supposed to have any knowledge or official understanding of the degree of proof which a particular court is likely to require. Possibly he should be given that discretion and if he were, there might be stronger substance in what we hear from that side of the House. I have no objection to it one way or the other.
If he has not the discretion would the Deputy not agree that there is therefore no safeguard?
He has got a discretion which is like that of a policeman. He has got no more than that. When I was speaking here yesterday I did my best to say, and I said over and over again, as every Deputy here tends sometimes to do, that there is no such thing as being positive about this. If I am wrong about this and shown to be wrong I will say I am sorry. All I can do is say how it appears to me now.
As I said yesterday, there is no such difficult and obscure area anywhere in public law as the question of where the judicial power begins and ends. I do not believe I will be able to produce a better description of it than anybody else has succeeded in doing, back to Chief Justice Kennedy in the first decade of the State. I will not attempt it. Therefore, I am perfectly open to the possibility that this Bill, if it becomes law, may be shot down. It will not in the least amaze me if it is. I am not trying to belittle the arguments I am hearing. I can see the substance in them. For my own part I think they are wrong and I say so without any special arrogance or pride. There is no certainty in these matters. I have every possible objection to the history of the Fianna Fáil Party, back to its foundation, in regard to the whole area of national existence and I have lambasted it here, time out of number. I would do so again except that I am anxious that we would all understand that we are all to some extent in this boat together economically, politically in regard to the North of Ireland and in regard to terrorism and savagery also. There must be a limit and an end to the old style politics. I know that one's supporters do not like it if one is not weighing in to the Opposition non stop but there will have to be an end to it sooner or later or we will find that we are talking away as the Cuban's are landing. We are going to have to climb out of the cock fight pit that we have been occupying here ever since I can remember. Maybe this is not a bad time to do it.
The Fianna Fáil Party are entirely to blame for the exigency in which they now find themselves. They probably are anxious to make a go of the Anglo-Irish process. I do not think they would want to have it said that they wrecked it. Neither do I think that the voters would thank them for wrecking it. The voters would not thank Fianna Fail for letting it be seen that the agreement had fallen down because of flaws in their background and temperament. While they are entirely to blame for the exigency in which they now find themselves, we have to understand that we are in the difficulty, too. That would not lead me to say something I, did not believe about this function but it does oblige me to say whatever I think can be said in favour of this proposal while it is going through this House.
I listened with interest to Deputy McCartan's contribution but I must confess I did not understand the second last point he made about the Attorney General and his responsibility for what happened in the McGlinchey case. My understanding of the McGlinchey case is that Mr. McGlinchey sought the assistance of the superior court on the question of whether he was being charged with a political offence and that the Supreme Court ruled unanimously that the activity with which Mr. McGlinchey was being charged did not, on the definition they introduced into the law, constitute a political offence. I do not know what Deputy McCartan was alleging the Attorney General had to do with it one way or the other.
I was rather amused, listening to the contribution of Deputy Taylor, when he referred to the double negatives and the allegedly convoluted nature of section 2 of this Bill. It is not so long ago when Deputy Taylor was on this side of the House that legislation which was not only convoluted but inexpressibly bad and wrong and quite incomprehensible was passed through this House with the acquiescence of the Deputy and his colleagues, often with the verbal support of Deputy Taylor and his colleagues. If the Deputy wants me to give him examples I have a list with me of legislation which went through this House on which Deputy Taylor contributed at length. I am convinced from looking through the Official Report in respect of that legislation that nobody knew the meaning of some of the sections in it, least of all Deputy Taylor.
I will come back to that in a minute.
Where is the list?
He is not referring to Deputy Spring but to Deputy Taylor.
The argument has been made here that there is no obligation to refer this matter to the Attorney General. It seems to be quite clear on the face of the Bill that, of course, there is an obligation to refer the matter to the Attorney General.
This is a procedural matter and it is quite clear to anybody who looks at the Bill and reads it in a reasonable fashion that what the Government proposal is doing is inserting one more step into the procedure, namely, the formation of an opinion by the Attorney General. That is all the legislation proposes to do. I do not think anyone can argue reasonably that on the occasion the next warrant comes from Great Britain, the Garda Commissioner will go ahead and back that warrant without referring the matter to the Attorney General. The Garda Commissioner, being a reasonable person, knows from just looking at this Bill that the Attorney General has to consider the matter and has to refuse to give a direction that the person should not be extradited. If the Attorney General considers that matter and does not give that direction, then the matter will go ahead in the ordinary way under the terms of the 1965 Act.
If that is the intention why not clearly say so? It is a very simple thing to do.
That is quite clear and Deputy Taylor knows very well that if the Garda Commissioner purports to go ahead and backs a warrant without the intervention of the Attorney General, without the matter being referred to him, the Government will come back here the day after and amend the law. The Garda Commissioner knows that, Deputy Taylor knows it and I know it.
I am conceding that perhaps the legislation could be drafted in a different way, not necessarily in a better way. There are various different ways of saying the same thing. I am quite happy and I am sure the Garda Commissioner will be happy that the misgivings of Deputy Taylor and others are totally and completely unfounded in this regard.
I suggest that you address yourself to the Chair rather than to Deputy Taylor.
Forgive me. Deputy O'Malley referred to the Senezio case. He stated quite clearly in this House and in various media over the weekend that that case is authority for the proposition that the issue of a summons by a District Court clerk is a judicial act. I suspect that Deputy O'Malley knows — I will be disappointed if he does not — that that case is authority for no such proposition. The Senezio case decided that the issue of a summons by a District Court clerk under section 10 of the Petty Sessions of Ireland Act, 1851, is a judicial act. That decision by the Supreme Court is right. There was good reason for it. The Supreme Court came to that conclusion because section 10 of the Petty Sessions of Ireland Act, 1851, gave certain functions to a justice. It envisaged the situation where a matter is put before a justice and he has to decide whether to continue the process. That function is judicial because the Petty Sessions of Ireland Act, 1851, created it as a judicial function and gave it to a judicial person. Because the legislation created that as a judicial function, the Supreme Court held — and in my opinion they were perfectly right to hold — that it was not open to an administrative person, namely, a District Court clerk, to perform that function because by Statute it had been created judicial.
Deputy O'Malley quoted from the judgment of Chief Justice Finlay and I submit that his quotations from that judgment were selective. Chief Justice Finlay stated that he was satisfied that on the terms of section 10 of the 1851 Act — and that is the key phrase — it was an inescapable conclusion that the issue of a summons upon the making of a complaint was a judicial as opposed to an administrative act. If that was not enough for Deputy O'Malley, Chief Justice Finlay further on in his judgment said:
Consideration, therefore, it seems to me, should be given to replacing ss. 10 and 11 of the Act of 1851 with statutory provisions more suitable to the modern District Court which could include the procedure for the issuing of summonses, in criminal cases at least, as being an administrative procedure only....
In other words Chief Justice Finlay envisaged that District Court clerks could issue summonses in circumstances other than in the circumstances contained in section 10 of the Petty Sessions of Ireland Act, 1851. Something has just been brought to my attention. I notice in the first page of the case that the person who appeared for the defendant in that case was a Mr. Michael McDowell. I do not know how many Michael McDowells are practising in the Law Library but if this Mr. Michael McDowell is the same Mr. Michael McDowell who sits over there on those benches I would urge him to take Deputy O'Malley to one side and explain Chief Justice Finlay's decision to him in simple terms.
Deputy Kelly, in the course of his Second Stage speech, quoted the various authorities but I do not propose to go over that ground again. In the Shanahan case of 1961 or 1962 the terms of section 62 of the Courts of Justice Act, 1936, was under consideration by the Supreme Court. That section allowed the Attorney General to intervene where a District Court had decided not to send a person forward for trial on indictment. In other words, the Attorney General was empowered to ignore, in effect to overrule, the preliminary decision of the District Court. The Supreme Court found unanimously that that power in section 62 was not unconstitutional.
That decision has been overruled.
There is a recent unreported High Court judgment of Mr. Justice Barron, the State (Calcul International Ltd.)v. the Appeal Commissioners and the Revenue Commissioners.
There is a Supreme Court decision that expressly overrules the Shanahan decision.
In the last case I referred to the functions and powers of the Taxation Appeal Commissioners were under consideration. Anybody who has had occasion to appear before the appeal commissioners will know that a hearing of the Taxation Appeal Commissioners resembles that of a court hearing. People on both sides make their case and there is an adjudication. Indeed, the decision of the appeal commissioners can have far-reaching and profound consequences on the livelihood of the individual tax-payer appearing before them. Mr. Justice Barron concluded that the functions of the appeal commissioners, as set out in the Income Tax Act, 1967, were not judicial functions but were merely administrative functions. Looking at all the cases, and considering what has been said — law is an imprecise science — I cannot understand how anybody who is reasonably skilled in the use of the English language or who is reasonably cognisant with the meaning of ordinary words can come to the conclusion that what we are proposing is a judicial as opposed to an administrative function.
Deputy O'Malley went on to propose an amendment along the lines of what happens in the United States but I must point out to him that this is a different jurisdiction to the US with a different legal tradition to that of the US.
We have not a different legal tradition; it is the very same legal tradition.
The Deputy should cease interrupting. If one Deputy interrupts a speaker that person will then claim the right to interrupt that Deputy when he is contributing.
It is entirely inappropriate for Deputy O'Malley to suggest we should have a similar provision to the US. I do not have any first-hand knowledge as to how such a provision works in the US but I do not think a similar provision could work here. Opposition Deputies are not united in their views on the type of safeguards we should have and that is why there are so many amendments before the House.
Are Fianna Fáil united on this?
That illustrates to me that there is room for a number of different views as to the type of safeguards we should have. However, there is unanimity — I give the Opposition the benefit of the doubt in regard to this — that we should have some safeguards. It is an extremely difficult balance to find. Some Opposition parties have suggested that such a hearing should be in open court but to me that seems to imply, like Deputy O'Malley's reference to secret proceedings and secret decisions implies, that the Opposition do not trust the Irish Attorney General. If that is the case, and we must be inescapably driven to that conclusion, it is very sad. The various Attorneys General who have served as legal advisers to successive Irish Governments, including Deputy Kelly, have been people of the highest integrity. In many cases they have been promoted to the bench. It is very sad if the Opposition parties do not trust the Irish Attorney General.
District justices have no particular monopoly of wisdom or knowledge. The Attorney General is the best placed person to make the decision we are requiring him to make. Deputy McCartan argued long and eloquently for theprima facie case and there is much merit in what he has said. I would prefer if we were presenting the option of a full blown prima facie hearing but we must remember we are talking about an administrative procedure, the extradition procedure between Ireland and the United Kingdom. That procedure must be workable. While I can see powerful arguments for the prima facie case, the problem is one of workability. Deputy Taylor has said that the prima facie safeguard is probably the least there is. He and I could devise better safeguards, but we are concerned now to have legislation that is workable and to have some form of safeguard so that a person will not be simply transferred to the tender mercies of the courts in Britain and Northern Ireland. The amendments before the House today illustrate to me, as they must to all people outside the House, that it is a very difficult task to perform, a very difficult balance to strike. In my view the Government have just about stuck the right balance.
What is at issue here is seeing that there is in place a workable system of extradition but a system of extradition that provides proper and adequate safeguards for those whose extradition might be sought. Since we are concerned primarily with extradition between this country and the neighbouring jurisdiction then, obviously, the view is taken by the jurisdiction that might be making those requests is relevant. Already in the course of the debate there has been some comment on the views expressed by the British Prime Minister, Mrs. Thatcher, in the House of Commons yesterday. If she is correctly reported as being of the view that the Bill will have the effect of placing Britain in a less favoured status then I find that quite extraordinary. As Deputy Kelly said, the factual position is that we treat Britain more favourably than we treat any other country. Britain also treats this country more favourably when it comes to extradition requests than they treat any other country. As I understand the position,prima facie is a normal feature of British law and at the moment Britain seeks that a prima facie case be made out in their dealings with every country other than this one. That has put us in a most favoured nation status and we in turn, in the 1965 Act, have differentiated Britain from everybody else in that we have been satisfied to operate a backing of warrants procedure there while in the case of every other jurisdiction we have required formal extradition.
No matter what shape the Bill is in when it has passed through the Dáil Britain will continue to enjoy a privileged position and there is a logic why that should be so. It is so because of the volume of traffic that takes place between our jurisdictions, because of the ease of travel and the fact that no documentation is required, no passports or visas. Deputy Kelly said he found it strange that Mrs. Thatcher should make such a comment and wondered if she had been adequately advised. I have to say — it may be that I am being unduly Machiavellian — that it seems to me likely that she was very well advised indeed and that she made that intervention in the belief that it would do the Taoiseach no harm at all in attempting to sell these measures to his backbenchers. Backbenchers might be told by their comhairle ceantair that the safeguards amount to very little but if they were able to tell those raising the point that it was apparent they were enough to cause disquiet to Mrs. Thatcher they might find the fig-feaf a bit more substantial than would otherwise be the case.
We are concerned about whether we are in a position to ensure that we will have in place a workable system of extradition. That was our concern 11 months ago when we were on the benches opposite. On that basis we opposed amendments — even to the extent of putting the Government's existence on the line as we defeated three amendments on the casting vote of the Ceann Comhairle — that would have resulted in insuperable obstacles or obstacles that would have been difficult to surmount and we opposed the concept of the introduction into our law of aprima facie requirement. I want to repeat that prima facie has not been part of our extradition tradition. I invite Deputy McCartan or any other Deputy to find any extradition treaty to which this country is a party where we have made it a requirement, before responding to a request, that a prima facie case be made. There is no such treaty in existence at the moment, by definition not with Britain or with any Part II country.
As I said, we opposedprima facie 11 months ago essentially for two reasons: first, because it would provide us with treaty difficulties and that it would be incompatible with the 1957 Convention on Extradition; and, secondly and more substantially, because on the merits it does not stand up and the introduction of a prima facie case is incompatible with an effective operating system of extradition. I say that second ground is more substantial because if it was established to my satisfaction that by putting aside or entering a reservation to the European Convention we were doing something worthwhile and useful, I would be prepared to pay that price, but I am far from so satisfied. I believe the introduction of a prima facie requirement would mean effectively that extradition would come to a stop.
Let me remind the House of the present position. The present position at least so far as extradition between this country and the neighbouring jurisdictions are involved is that the Act contemplates a very streamlined system, indeed, a simple backing of warrants procedure. Yet, we can all think of how many cases have gone wrong in recent years even with that simplified procedure in place. It does not require any imagination to work out that, if you start introducing additional elements, opportunities will be provided for those whose business it is to see that extraditions do not take place.
In referring to the difficulties which occurred to date even with the simplified procedures I mean no criticism of our courts or of those who have been ingenious enough to point out the flaws. I made clear on Second Stage exactly where I believe the blame rests. I believe the blame rests very firmly with the British authorities who have shown a remarkable ineptitude and slovenliness when it comes to taking account of the proper requirements of our courts.
Twelve months ago we set our face firmly against aprima facie requirement and we do so again today. The PDs have tabled an amendment which I understand they present as being something of a half way house. They feel it would achieve something of the perceived advantages of a prima facie requirement, but without giving rise to the difficulties which they now accept, 12 months on, that a prima facie case would involve.
It seems that one of two things is the case. The scheme would operate as they intend, in which case it would provide no safeguard whatever. Indeed, it is fair to say it would provide a lesser safeguard than that now offered by the Government with the Attorney General or what is already in place, because of the obligation, undertaken in good faith, on the British Attorney General to satisfy himself about the position. If it really is the case that all that would be required for extradition would be this simple statutory declaration, what is the value of that? If it is a statutory declaration which cannot be challenged, and which has to be accepted at face value, what possible use is that to anyone?
We are told one of the advantages is that someone could proclam their innocence in the press. If someone whose extradition is sought finds himself confronted by a statutory declaration or affidavit which makes various contentions in relation to his behaviour, establishing that he committed an offence, and finds the only remedy open to him is to protest his innocence and hope it may be reported in the following night'sEvening Herald he might reasonably wonder to what extent a safeguard had actually been provided by this House. I do not think that is the way it would work, because I do not belive the courts would be satisfied to leave it simply on the basis of saying you put in your declaration and that is the end of the matter. Once the declaration was presented, the issue of the sufficiency of evidence would become justiciable and we would be into the prima facie ball game and very substantial pre-trial procedures with all the difficulties that would entail.
Deputy O'Malley said the one thing to be said for his amendment was that no one could say there was any constitutional doubt about it. Let me say there is at least a possible constitutional doubt about it. His amendment reads:
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 crossexamined thereon in the course of any proceedings under Part III of the Principle Act.
My recollection of the decision of the courts in the case re Padraic Haughey — the case arising from investigations by the Committee of Public Accounts — was that the courts established that where someone was being inquired into in circumstances which put his position analogous to that of a defendant, he had a right to cross-examine and to be represented by counsel.
If someone who is simply at an inquiry as a witness, albeit a witness to whom very searching questions are being put, is entitled to cross-examine and test any evidence presented against him, it would be hard to uphold a section which suggested that someone whose liberty was at stake, who was facing immediate expulsion from the country, was in any less precarious a position than a witness before the Committee of Public Accounts. I have to say that the Progressive Democrats' amendment is suspect. I concede that it is an attempt to make progress but I do not believe it achieves it. I also do not think it is compatible with the 1957 Convention in that Article 12 of the Convention stipulates the documents that can be required to accompany a request. Nowhere in that list is there provision for this substantiating declaration which the Progressive Democrats contemplate.
I suppose they would say in answer to that, that is their reason for confining the provision to Irish citizens but, for the reasons given by several speakers on Second Stage and which featured prominently in the debate 11 months ago, any attempt to differentiate between the way we treat our citizens and other citizens who find themselves involved in extradition proceedings would be quite invidious and I do not see any particular merit in that.
All these amendments have been put forward as alternatives to the role of the Attorney General. All the people contending for it have raised arguments about the constitutionality of the Attorney General provision which is proposed by the Government. That was put most strongly this morning by Deputy O'Malley and it has been answered with considerable vigour from these benches by Deputy Kelly. It seems to me that both Deputy O'Malley and Deputy Kelly overstate the position. It is not true, as Deputy O'Malley contends, that the Supreme Court would have to stand on its head for this Bill to be free from challenge. It is not true either for Deputy Kelly to suggest that what is involved is as simple and straightforward as a Garda sergeant forming a view that he has enough evidence to prosecute you for not having a light on your bicycle or whatever. The reality falls somewhere in between. It is a grey area, as Deputy Kelly said and, for that reason, we are very keen that the constitutionality of the measure would be referred to the Supreme Court by the President because there are overwhelming advantages in having this constitutional issue tidied up one way or another, here and now.
I venture to suggest that if anybody goes down to the Four Courts today and takes a poll among senior counsel who specialise in constitutional law there would be a split decision as to the likely outcome of a constitutional challenge because we are in a very fine area of administrative and constitutional law and it is by no means clear what the decision would be. On that point, Deputy O'Dea, in supporting the case that the Bill would be constitutional, relied on the Shanahan decision, which is the Singer stamps case and it is less than frank to rely on a decision which has been expressly overruled by the Supreme Court in a reported judgment on the basis that that power to send forward for trial vested in the Attorney General or the Director of Public Prosecutions did constitute an interference with the judicial function. The Shanahan case, to which he referred, is expressly overruled in the case of Costellov. the Director of Public Prosecutions, reported in the 1984 Irish Reports.
We are dealing with a Bill of doubtful constitutionality. I do not mean that in a pejorative sense, it is a Bill about which serious arguments can be made. Let us consider how those arguments can be resolved. They can be resolved if the President sees fit by a reference to the Supreme Court under Article 26. If that happens, a time limit is set down by the Constitution within which the case is heard and within which judgment is delivered. If that happens to the Act and if it is approved of by the Supreme Court and signed by the President, it is immune from further constitutional challenge. We will all know where we stand. If it does not happen that way, what are the alternatives? It is inevitable that the first person whose extradition is sought will seek to bring a case first to the High Court and will appeal it all the way to the Supreme Court. That means that extradition will come to a standstill for perhaps 12 months because, while that case is before the courts, everyone else whose extradition might be sought will, inevitably, seek to make the same points as the person who first raised the case.
If, eventually, the Supreme Court decides that the case is constitutional we will still have been faced with a situation where for 12 months or so our extradition procedures will have been put in abeyance. If the Supreme Court finds the Act unconstitutional, a consequence will be that it will order the release of whoever the individuals are who challenged it and they may prove to be people of very little merit indeed. I suspect that very few people in this House would be happy if those sought for the atrocity at Enniskillen and who, under existing law and that of many years past, would be liable to be extradited, were to seek to challenge this Act in the courts and because they succeeded on a fine point of constitutional law were able to evade extradition and avoid facing trial for that atrocity. That would be a very unhappy consequence.
There is a further possibility, although I do not believe it is likely, that a court in striking down this measure would bring all or part of the entire extradition legislation down with it. However, even if the court takes the view that this measure is unconstitutional they are quite capable of severing it from the rest of the extradition procedures. A doubt arises on that point which was referred to by Deputy Desmond O'Malley on Second Stage. For that reason as well, it is desirable that the doubts should be resolved as soon as possible.
The effect of each of the three amendments would be to place difficulties in the way of effective extradition. For that reason, none of these amendments will find favour with us.
Will the Minister give us his considered opinion on the proposals made so far?
On a procedural point, we put down an amendment to section 1 which was to insert a subsection saying that this Act come into operation on such day as may be fixed by order of the Minister for Justice. It went on to say that the Minister shall not fix a date earlier than the date on which judgment has been given by the Supreme Court following a reference of the Bill to it by the President pursuant to Article 26 of the Constitution. For all the reasons which Deputy Birmingham has just outlined, it would be exceptionally useful if the Minister or the Taoiseach could indicate to the House whether the Government would indicate that they have no objections to the Bill being referred——
The President has a discretion——
Of course the President has a discretion. We passed legislation before in this House——
——and an indication was clearly given by this House——
I will enter the point of order. The amendment to which you refer was disallowed because of the fact that, in accordance with Article 26 1. 1º of the Constitution, it could be prejudicial to the discretion of the President in referring matters. That is the position and there is no point in pursuing it.
I do not wish to argue with your ruling——
We will make a statement about it later.
Before it has been made clear that the will of this House is that the Bill would be referred and the President has not taken umbrage, I just want the Minister or the Taoiseach to indicate that the Government have no objections to the President referring this to the Supreme Court.
It is quite clear, from what the Leader of Fine Gael, Deputy Dukes, stated last night, that you could not write an amendment into legislation asking the President to refer a Bill to the Supreme Court. That power given to the President in the Constitution is to be exercised totally at his discretion. However, it would be extremely helpful, given the ill effects that could fall on the whole extradition process, if the Attorney General provision was found to be unconstitutional, if the Taoiseach or the Minister for Justice would indicate to the Dáil that it would be their wish that the Taoiseach would refer it——
That is what I asked for.
That is quite different from writing it into a Bill, which would be unprecedented. All parties would welcome that because it would be very helpful.
I am not pursuing my amendment for that reason.
On almost every occasion on which this House has indicated to the President that it would desire him to refer a Bill to the Supreme Court, the President has acceded and it would be extremely helpful on this occasion if a representative of the Government, preferably the Taoiseach, were to do so. The Government up to now have not conceded that there may be any doubt about the constitutionality of the measure before the House.
I should like to make one or two other points. First, I should like to clear up a matter which has arisen in the reporting inThe Irish Times today of the position of the Progressive Democrats. It stated that we are proposing the prima facie requirement. I did not state that in the House yesterday: I was incorrectly reported. I went out of my way to say that at the parliamentary party meeting we had spent a considerable time examining other safeguards which would be short of the full blown prima facie requirement. We eventually came up with the idea that a district justice should look at the extradition process in line with the Irish-American Treaty of 1983. After all the talk by lawyers in the House this morning and at various stages of the Bill, I should like to pose one question. As a lay person, would you prefer that your demand for extradition was looked at secretly by an Attorney General who is the political officer appointed by a Government or would you prefer it to be looked at by an independent district justice in the court? I would prefer the district justice, who would be making the extradition warrant anyway, to examine the extradition process.
That is not what you are proposing.
We are proposing in detail that the defendant should be allowed to go before a district justice in open court and that the district justice would be supplied with a short set of facts, either in the form of an affidavit or a statutory declaration, from the country requesting the extradition.
Or by a person nominated by the Minister.
I do not understand that.
Your amendment reads:
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 person or classes of persons who may swear an affidavit or make a statutory declaration...
So the Minister will decide, anybody, a clerk in his office, could go down and swear the affidavit.
The same regulations——
The Deputy objects to the Attorney General doing it and he is giving power to the Minister to nominate anybody to go down and do it. That is what the amendment means.