We now proceed to deal with amendment No. 6 in the names of Deputies Mac Giolla, De Rossa, Sherlock and McCartan. Here a number of other amendments would seem to be related and, I suggest, should be taken together by agreement. The amendments to which I refer are amendment No. 7 in the names of Deputies Mac Giolla, De Rossa, Sherlock and McCartan, amendment No. 8 in the name of Deputy Barrett (Dún Laoghaire), amendment No. 8a in the names of Deputies Blaney and Gregory, amendment No. 9 in the names of Deputies Mac Giolla, De Rossa, Sherlock and McCartan, amendment No. 10 in the names of the same Deputies — Mac Giolla, De Rossa, Sherlock and McCartan, amendment No. 10a in the names of Deputies Blaney and Gregory, amendment No. 10b in the names of the same Deputies, Blaney and Gregory, amendment No. 10c in the names of the same Deputies, Blaney and Gregory and possibly amendment No. 20 in the name of Deputy Barrett (Dún Laoghaire). Is it satisfactory that we take the amendments, as I have outlined? Agreed.
Extradition (Amendment) Bill, 1987: Committee Stage (Resumed).
I move amendment No. 6:
In page 2, subsection (1) (a), to delete lines 11 to 27, and substitute the following:
"44A. —(1) A warrant for the arrest of a person accused of an offence under the law of a place in relation to which this Part applies shall only be endorsed for execution under this Part if a Judge of the High Court certifies that he is of the opinion that:
(a) there is a clear intention to prosecute or, as the case may be, to continue the prosecution of, the person named or described in the warrant concerned for the offences specified therein in a place in relation to which this Part applies, and
(b) such intention is founded on the existence of sufficient evidence.
(2) A Judge of the High Court shall only certify a warrant under this section when a request for extradition is accompanied by a statement of fact, by way of affidavit or statutory declaration, which satisfies the Judge that there are reasonable grounds for believing that an offence has been committed, and that the person sought committed it.".
The purpose of the amendments follow from the consequent loss of the vote in respect of the main issue impinging on section 2, that is the question of the introduction of the prima facie process or some analogous process. What we seek to achieve by these amendments, in particular the substantive one, No. 6, is to introduce improvements into the scheme of things, as proposed by the Government's Bill, and to ascertain whether there is Government agreement to meet our concerns as voiced in the course of the Second Stage debate and our reservations already expressed on Committee Stage.
For the purpose of the record I want to state what is intended. We are seeking to supplant the new section 44A of the 1965 Act, as contained in section 2 (1) (a) of the Bill, as circulated, by the substitution of the new section 44A prepared in our amendment No. 6.
Amendments Nos. 7, 8 and 9 are consequential amendments, substituting in three places in the Bill, the words "a Judge of the High Court" for the words "Attorney General". The basic proposition here is very much a second best for The Workers' Party but one we are now thrown back on in view of the weak approach of the Fine Gael Party to the whole question of safeguards and their non-support — here at least one has to give them credit for an element of consistency — for the notion of a prima facie case. Therefore we are thrown back to what we consider to be the next desirable position. We propose that instead of the Attorney General dealing with these matters a judge of the High Court would deal with them. We are concerned not so much from the point of view of the Constitution but that what is in the realm of judicial and quasi-judicial process, what requires adjudication and determination, should be undertaken by a member of the Judiciary so appointed under the Constitution with all the constitutional obligations that are imposed upon a holder of such a high office. A member of the Judiciary is obliged under the Constitution to take an oath to uphold the principles contained in the Constitution, principles that should be applied in the determination of a decision to act or not to act under section 2 of the Bill as proposed by the Government.
It is also a preferable arrangement because it does not throw on to the shoulders of any one person the very onerous responsibility being visited upon the Attorney General by the Government's scheme. We envisage that any member of the Judiciary available or appointed for the purpose will exercise the functions. We have drafted the amendment in a way that allows for that person to engage in the self same exercises and towards the self same ends as the Attorney General would be asked to do under the Government Bill.
Our amendment goes a little further in relation to establishing in subsection (2) what will have to be specifically before the judge when he or she deals with functions under our proposed amendment. We say that it should be by way of affidavit or statutory declaration involving a statement of fact to such an extent that he or she is satisfied that there are reasonable grounds for believing that an offence has been committed and that the person sought is the person who has committed it. We made this point in relation to the current scheme proposed by the Government. There is no indication as to what extent the Attorney General will have to go in regard to reaching a decision under the Bill. This is the second best option but one that is preferable to invoking the office of the Attorney General in this way. The reasons it is preferable have been advanced in the arguments earlier in this debate for a prima facie case.
We on this side of the House do not see any reason for the introduction of this legislation. During my Second Stage speech I mentioned that the arrangements that were in place when the Extradition Act was passed in 1986, now known as the Extradition Act, 1987, were quite adequate and could have worked quite well without having to enshrine them in legislation. What I have to say is based on that principle, that we do not feel there is a need for this legislation. I also covered in my Second Stage speech the reasons I thought this Bill was being introduced. I said at the time that it was being introduced solely to satisfy unrest among the Fianna Fáil Party as a result of the welcome decision of the Government to allow the Extradition Act, 1987, to come into force on 1 December. We are operating on the basis that we have legislation before us that was introduced for political reasons. There is no question in my mind that the reason the Attorney General has been chosen by the Government to perform the functions set out under the Extradition (Amendment) Bill, 1987, was to satisfy political unrest. Let us not put a tooth in it; That is the reason this Bill was introduced.
Part III of the 1965 Act was inserted because at that time Britain had not ratified the 1957 Convention on Extradition. To date they have not ratified it. The indications are that the British Government intend proceeding with legislation to remove from their Statute Books the prima facie requirement. My clear understanding is that if we were to insist on a prima facie requirement being inserted into this legislation or into the 1987 Act we would be forced to withdraw from the 1957 Convention on Extradition.
I respect the views of The Workers' Party and of the PDs who consistently argued throughout the debate in 1986 for a prima facie requirement. The PDs have since changed their position and have produced a different amendment today. During the course of Deputy McCartan's contribution he made it quite clear that he did not see anything wrong with Ireland having to withdraw from the 1957 Convention on Extradition. That is where The Workers' Party and the Fine Gael Party immediately part company because we have no intention of bringing about a situation where this country would be seen to be withdrawing from the 1957 Convention on Extradition. Of all the countries that need help at this time this island does. We are plagued with acts of violence and terrorism and it would be strange if we gave the impression abroad that we were not too keen to co-operate with others to deal with that horrific problem of violence and terrorism. Therefore, it is in our interest to have the closest co-operation possible with our neighbour, Great Britain, and with other European countries to see to it that people who commit these crimes of terrorism and so on are brought to justice and are dealt with fairly in the course of whatever country has to deal with them. We should not be afraid to state our position quite clearly.
Suppose, for argument sake, that the bomb that exploded in Enniskillen had exploded in Cork city, Dublin city or Limerick, how would we feel if the person or persons involved in that horrific act were safely across the Border in Northern Ireland and that because of changes in legislation in that part of this island it became more difficult to have them brought to the South to face justice? How would we feel about co-operating in pursuance of the Anglo-Irish Agreement if we saw that happening in either Great Britain or Northern Ireland? That is another question we should ask ourselves. For that reason I do not see why the administrative arrangements that were outlined by me and by the Leader of my Party last night, which built in as a result of the passing of the 1965 Act, could not have proceeded along the lines intended without having to be enshrined in legislation.
We have heard all the arguments, this morning, this afternoon, for the last number of days about whether this legislation is constitutional as a result of inserting the requirement that the Attorney General, before he gives a decision in relation to a warrant, must have sufficient evidence. That does not arise if there is a clear understanding between two governments that certain procedures will be followed before a warrant is sent over her for execution; we do not face constitutional problems. These things can be dealt with by two friendly countries operating and co-operating together to deal with a common purpose, the horrific problem of terrorism and violence and other severe crime. Once we get into the area of legislation we have all these constitutional problems and a feeling abroad that perhaps we are making it more difficult to extradite people who may or may not be responsible for an act that none of us would agree to. That is the reality of the situation we are now faced with.
Therefore, we have tabled this amendment substituting the Director of Public Prosecutions for the Attorney General. Lest there be any fear that this is some new idea, I would argue that it is far more consistent with the attitude of the Oireachtas ever since the Prosecution of Offenders Act, 1974 was passed. The function proposed by the Attorney General in this Bill should be accorded instead to the Director of Public Prosecutions. We decided that back in 1974. It is not a new idea but in this Bill we are now loading on to the Attorney General additional responsibility before he can make a decision. I do not profess to be a lawyer or a constitutional expert but this, in my opinion, puts the Attorney General in a judicial or quasi-judicial role which could be contrary to the Constitution. I am not in a position to say any more than that; I just have to listen to the advice I get from various people. Having listened to various experts one tells me that it could be; another tells me that it might be and others say it is not. For that reason, we tabled an amendment which we accept was ruled out of order and, as Deputy McDowell said, may not have been the correct thing to do. But at least it afforded this Parliament the opportunity to debate the issue and seek the views of the Taoiseach, the Minister and his Government on the issue. We make no apologise whatsoever for that.
I do not feel it is reasonable to ask the Attorney General to take on the role that this Bill sets out for him and which puts him in an extremely awkward position. Whether we like it or not, there is a perception outside that the Attorney General is a political figure. He is appointed at the same time as the Government, by the Taoiseach. He is very close to his colleagues in Government and to the person who appointed him. He is, whether we like it or not, regarded as a political figure. There have been cases in the past where Members of this Dáil have been appointed as Attorneys General. The professional lawyers say that the Attorney General behaves in a professional manner, does his duty as the legal adviser to the Government and will not in, any way, be influenced by any representations, hints, nods or winks from anybody. That may be so, and I do not for one moment suggest that the present incumbent of that position would act in any way not in keeping with the standards his predecessors have set. I am not suggesting that the Taoiseach or any member of his Government would make representations to or approach that person but that is not the issue. The issue is that the great public outside have a feeling that this person can be got at. When I say that I mean no disrespect to the holder of the Office, to those who may follow him, or to those who have gone before him but that is the position, and for that reason it is far more satisfactory to replace the Attorney General with the Director of Public Prosecutions in this Bill because, again, the public perception is such that the Director of Public Prosecutions is not regarded as a political figure or as somebody who is close to the Government of the day; he is not a person appointed by the Taoiseach or any member of his Government, and he is not a person that people would consider making representations to. For that reason we feel that it is perfectly logical and understandable that the public would have more confidence if they saw the Director of Public Prosecutions fulfilling the role the Attorney General is being asked to do in the Bill now before us. That is a perfectly acceptable argument on our part. I urge the Government to accept, in good faith, the reasons we are putting forward that amendment.
There are a couple of other points I would like to make in relation to the amendment. The suggestion is that the Director of Public Prosecutions must have reason to believe that there is not a clear intention to prosecute before he agrees to endorsing a warrant. That is far more acceptable and a better way of wording than what is presently there in relation to the Attorney General. We also feel that it is better that we word our amendment in such a way that the Director of Public Prosecutions shall be of the opinion that there is a clear intention to prosecute. Therefore the Director of Public Prosecutions is not required to satisfy himself of that intention, nor is he required to consider any particular information or facts.
People may say that we are soft, that we are not looking for safeguards. My argument would be that if that amendment were accepted it would, without doubt, remove any possibility of a constitutional challenge, and it would also leave room for the Government of the day to continue with other administrative arrangements with the British authorities just as are there at present, without having to include in legislation the need to be satisfied that there is sufficient evidence. There is no reason whatsoever that two soverign governments cannot get together on the basis of a new Act which specifies certain requirements with, in addition, a clear understanding that before a warrant is sent here for execution the British Attorney General or the Crown Prosecution Service would be satisfied that there is sufficient evidence to prosecute. That is a perfectly understandable and logical stand to take because, whether we like it or not, all extradition treaties between countries are based on trust. We assume that a country we enter into an agreement with will act in good faith. We should have no reason to believe otherwise. Similarly, the British Government should feel that we will act in good faith in respect of warrants we send to them for execution.
What I am afraid of is that if this legislation is passed in its present form we will bring about a situation in Great Britain and Northern Ireland where there will be an insistence that their Act, which sets out the arrangements at present for the execution of warrants, will also be altered. That is something we have to consider, and it is reasonable that we should take that into account. Therefore it will be equally difficult for us to bring to justice here somebody who may have committed an atrocity in this jurisdiction. It is not all one way traffic. To listen to some of the contributions here today, one would think that it was all one way traffic. It can happen, and it has happened in the past — and I sincerely hope for all our sakes that it will not happen in the future — that people have come here and planted bombs and killed and maimed people who are citizens and residents in this country. We must consider what is likely to happen in the future. We do not want to be in a situation where the Government we are dealing with are putting obstacles in our way to bringing somebody into our jurisdiction to face justice. I would urge those who feel that this is all one way traffic to think again.
We have also heard that there is a danger that Irish people extradited to Leeds or Scunthorpe or wherever may not get a fair trial. I, as a layman, would say that the longer we keep talking like that the greater the chance in the future that Irish people facing juries in Great Britain will not have their chances of getting a fair trial improved.
If we give an impression abroad that we do not trust the British public to give a fair trial to an Irish citizen, we are putting many obstacles, many dangers in the way of innocent people who are at present living in Great Britain and earning a living there. We are not improving their chances. We should be very careful of the language we use because, at the end of the day, there will be 12 men and women sitting on a jury, and their impression of what the Irish might think of them might be coloured by some of the dangerous statements that have been made on this issue over the last number of days.
I urge every Member of this House to recognise that we entered an agreement with the British Government back in 1965 when we inserted Part III into the Act. I do not, for one moment, object to safeguards. They are needed.
The Deputy is very shy about them at the moment.
I am not shy about them. The reality is that in 1986 the then Minister for Justice, Mr. Alan Dukes, outlined to the Dáil that it was intended to tighten up the administration arrangements whereby a warrant for the return of a fugitive would not be sought unless the Director of Public Prosecutions in Northern Ireland or the Crown Prosecution Service in Britain had considered the evidence and was satisfied that it was sufficient to ground a clear expectation of prosecution. We, for our part, have made a reciprocal decision that we would continue our existing practice of having our warrants assessed for evidence by the Office of the Director of Public Prosecutions before they are sent for execution in Northern Ireland or Great Britain.
I challenge anybody to tell me what has changed in the last 12 months that we urgently need legislation. Has that not worked? Can the Taoiseach or the Minister for Justice outline to us a number of examples where the present administrative arrangements have not worked that there is now a need to bring in legislation to force other people to do things? Is it just a question of satisfying members of Fianna Fáil, Members of the Oireachtas and members of cumann throughout the country because it is an emotive issue? If people are not given the real facts, if they are not led properly, they will have an impression foisted upon them by certain public representatives for their own purposes. Certainly as far as I can see from what I have read in the newspapers there is nothing that has happened over the last 12 months which would suggest an urgent need for legislation which must be passed within the space of three or four days. I cannot discover one case where as a result of the present administrative arrangements this legislation is needed.
I hope that in putting forward our reasons on this side of the House for substituting the Director of Public Prosecutions in place of the Attorney General and in putting forward our wording, we show that we are as concerned as anybody else with regard to safeguards. We are also practical. We realise that there are difficulties and that the more you try to put into legislation, the more problems you can create for yourself. In the end, we could have a constitutional challenge as a result of a case appearing in court and may find ourselves in the position of its taking 12 months before anybody could be extradited. Perhaps Part III of the 1965 Act, also could be deemed to be unconstitutional. We could find the country being terrorised. We could be unable for a period of 12 months to extradite somebody for perhaps a very serious crime, be it in Northern Ireland or in Great Britain. There are other consequences of this legislation. The more one tries to build into it, the more difficult it will become.
If you are going to enter into a treaty or agreement with somebody, there must be good faith on both sides. You must assume that both sides will behave responsibly. Surely in 1987 we can expect that two civilised countries can have arrangements whereby the case of somebody who is clearly capable of being prosecuted for a particular offence can be examined to see if there is sufficient evidence to bring about that prosecution and that this can be agreed upon without having to produce legislation to make certain that it does happen. Every time we enter into negotiations on anything with anybody, be it across the table in Europe on agriculture or in any other area, we assume that people are acting in good faith and for a common purpose, for the betterment of the citizens of the European Community and the betterment of the citizens of our own country.
I fail to see, first, why we need this legislation. I fail to see why we should revert back to putting the Attorney General in a position in which he can be suspected, perhaps without any foundation whatsoever, of making a decision which could ultimately be regarded as having been made, one way or the other, for political reasons. That is wrong; it is unwise. I would urge the Taoiseach, the Minister for Justice and his colleagues to think again and accept in good faith that we are putting forward this amendment to avoid the office of the Attorney General being dragged through the political mud, with accusations perhaps being made against him in the future, totally unfounded, but which will demean that very high constitutional office that he at present holds. I have also outlined other reasons why we should think again about being so——
The Deputy is doing well.
I shall let Deputy Blaney contribute in a second. One thing that I admire about Deputy Blaney——
Deputy Barrett, continue your case.
I may disagree with Deputy Blaney but——
I have been here since 3.40 p.m. I have been sitting here all that time.
I sat for three and a half hours listening to the legal eagles and I did not interrupt them at all. I am taking 25 minutes to put my very genuine case which I am entitled to do and I intend doing so.
Deputies
Hear, hear.