Extradition (Amendment) Bill, 1987: Committee Stage (Resumed).


I move amendment No. 16:

In page 3, between lines 39 and 40, to insert the following subsection:

"(6) Section 2 of this Act shall cease to be in operation at the expiry of 12 months from the commencement of this Act unless a resolution has been passed by each House of the Oireachtas resolving that that section should continue in operation.".

I strongly urge the Government to adhere to our request to have a review of the operation of section 2 of this Bill after a period of 12 months has elapsed. Much has been said over the last few days and indeed, on Second Stage, regarding the possibility of having difficulties with the operation of this legislation. I do not know at this stage what will happen because there are a lot of question marks around a lot of things contained in this Bill. For that reason it would be wise of us, as a Parliament, to insert this provision so that we can have the opportunity after a period of 12 months to review the Bill's operation.

It may be that this will work exceptionally well. If so I will be only too delighted to co-operate and see that the Bill be renewed. On the other hand it may be that there are difficulties that none of us have foreseen at this point. What we propose would be an extremely worthwhile exercise and I urge the Taoiseach and the Minister for Justice to accept our amendment.

The amendment proposed by Deputy Barrett, in the name of Fine Gael, is one which is worthy of support. It would be a desirable feature of the legislation that in the period suggested, 12 months, we would have the opportunity available to this House to review the operation of the legislation. I do not fully accept the bona fides as to why the Fine Gael Party would like to review it in 12 months time. I have my suspicions that if they had their way they would dismantle this legislation, brick by brick for all its worth in 12 months' time or less, if they got half the opportunity. Nonetheless the principle is a good one. It is one we should support and it is one which the Government have indicated they will be actively undertaking. I see no reason, given the way in which this House has contributed to the debate on the whole question of extradition, we should not have the opportunity at the expiration of 12 months to review it. We have heard some far-fetched suggestions that because one person might challenge the proceedings we could have a situation in 12 months where there would be no extradition at all within this State of persons wanted for crimes abroad. I do not hold to that view. In each case it would be up to the individual concerned to challenge the procedures and to carry the consequences of having to wait in custody, or elsewhere, on strict bail until such matters are determined. Simply because one person challenges the procedures of the Act it does not mean that the Act and its provisions would not be implemented. A review procedure would be very worthwhile and would involve this House, 12 months down the road, in a debate of similar proportions. I do not think anyone has suffered from the debate we have had in the last day or two, if anything we have benefited from it.

I am delighted, though somewhat amazed, to see this amendment. I am even more delighted to understand, as we were given to understand last night, that the Government propose to accept it. Section 2, as suggested in this amendment, will go out of existence 12 months from the passing of the Act, unless separate resolutions are passed by each House keeping it in existence which, presumably, is not really intended by those who have dreamed this up.

Section 2 is virtually the Act. The remainder of the Bill is of no consequence whatever. Section 1 is only a definition. Section 3 allows the Minister for Justice to make certain rules if and when Britain ratify the convention on extradition which she may or may not do at some time in the future. Therefore, section 3 may never arise. Section 4 merely allows for a substitute to exercise the powers of the Attorney General if he is sick or away. Section 5 means nothing. It simply means that the Attorney General tells the Government in January how many people were or were not extradited in the previous year, which they probably know anyway. Section 6 is the short title. Therefore, section 2 is the Bill. What is proposed here is that, in effect, the Bill should cease to have effect after 12 months. This Bill was introduced, and this section in particular, to provide safeguards against all kinds of awful situations that were supposed to exist in Britain and Northern Ireland for people who might be extradited from here and tried. There are difficulties for certain types of people, certain types of crimes. One does not deny that. There is a certain apprehension in relation to a limited number of crimes, but if these safeguards are needed, why are they needed only for 12 months? If the situation is as serious and as difficult as we are led to believe, then such safeguards as are brought in should be brought in for all time. The situation will not change in 12 months time.

Indeed, if one looks at what is likely to happen, it is quite conceivable that nobody will be extradited from here either to Britain or Northern Ireland in the next 12 months for the simple reason that the first person who is brought up under the legislation, as it will be if this Bill is passed, will challenge it. He will challenge it initially in the District Court; he will then exercise his right to challenge it in the High Court if an extradition order is made against him, where he has 14 days in which to do so. The High Court will, as they would in cases of this kind, take several months in order to hear the matter, come to a decision and give judgment on it. It will be a very important case because it will be the first case under this section. Whoever loses that case will appeal it to the Supreme Court. One would be something of an optimist to say that all that procedure will be completed and out of the way in 12 months. Therefore the likelihood is that nobody would actually be extradited under this Bill during 12 months and the Bill, in effect, will fall after that time.

What safeguard is there in that situation? This underlines that fact that the whole purpose of this Bill is not really to give safeguards to anybody at all. The whole purpose is to get over the political difficulty the Government have with their own backbenchers and, allied to that, to get over the political difficulty which the Fine Gael Party have in their present state of paralysis and terror that for some reason there might be a general election in the near future.

Not half the fear the PDs have.

The combination of having to get over the problem posed by the 57 backbenchers expressing their views and the difficulties of Fine Gael in party and electoral terms, has led, as often happens in these matters, to an ideal compromise, which is this amendment. It suits both sides. We are going through the motions of producing legislation which will act as a safeguard. It actually will not. It will not arise and will virtually die the death in 12 months time. It will have safeguarded nobody; it will have really no effect; it will have generated during that 12-month period a great deal of litigation, of argument, of heat, but the whole thing will pass away. Both Fianna Fáil and Fine Gael, as a result of the passing of the Bill with this extraordinary amendment in it, will have got over the difficulties that each of them in their own respective ways face at present.

It is incredible to bring in a Bill and then for the main Opposition party to propose and the Government to accept an amendment which does away with the Bill, in effect, in 12 months time. It underlines and proves, if anybody needed proof, the reality of what we are doing here in these three or four days of this debate, that is, getting people over the hump, going through the motions of appearing to be concerned about these matters but doing things which will, in effect and in practice, cause the extradition system out of this country in the next 12 months to collapse in that time. Not having operated for 12 months, it will not be in existence after that. Is it not extraordinary and unwise if it is proposed to abolish this Bill in effect after 12 months to bring it in at all? That is a reasonable question. If these kinds of safeguards are needed, they are needed for all time. They are not needed for 12 months.

Is the Deputy going to vote against the amendment?

I am not; I am delighted. It is as good as voting against the Bill and, therefore, I shall support it. I am entitled to comment on it for the empty charade it is and that everybody knows it is.

The Deputy is like the little man who runs behind the crowd and keeps shouting, "Hit him, hit him". He knows he cannot be got at. If we are proposing something with which he disagrees, he should oppose it.

The Deputy's party are not proposing anything.

If the Deputy is opposing the Bill, why does he not vote against it?

All that Deputy O'Malley is doing is flexing his muscles.

Could we concentrate on the amendment? The amendment is quite precise.

I shall be voting against section 2 and presumably it will be taken immediately after this amendment is put. I invite the Deputy to vote with us against section 2 because logically it is the same thing.

Why does the Deputy not put in an additional amendment?

It is coming out in the open and nailing your colours to the mast rather than going through this charade that is being played out here at present. In his Second Stage speech last Friday, the Taoiseach gave the figures for the number of extraditions that have taken place from here to Britain and Northern Ireland since the passing of the 1965 Act. The figure is just short of 900, which is perhaps very much greater than many people might have expected. I should like to see a breakdown of that figure, because I should think that the number of extraditions in respect of terrorist-type offences, as they are now known, with which we are, ostensibly, primarily dealing here — although in fact we are covering everything — would be only about 5 per cent at most of that figure of around 900. We are entitled to consider the position of the 95 per cent who are extradited or sought to be extradited for things other than terrorist-type offences. The number is quite significant. The position of people potentially in that difficulty has not been considered at all in the course of this relatively lengthy debate. If they are to be entitled to safeguards, why is their right to these being abolished after 12 months?

This amendment is a crucial one. First, it totally emasculates the Bill and does away with the safeguards which it is supposed to bring in. More important than just what it does in relation to the legal position under the Bill, it demonstrates the political posturing and attitudes going on here and why there is this meeting of minds for quite different reasons but which just happens to suit both the internal problem in Fianna Fáil and the supervening difficulty of a paralysed fear of an election in Fine Gael.

Could I dissuade the Deputy from straying too far from the subject matter of this amendment and engaging in repetition as he is doing now?

This amendment is worth supporting because its effect is much the same as opposition to the section. The section is faulty. It will give rise to a vast amount of litigation. I do not think the Government have any confidence that it will not. They virtually agreed last night, in all but saying it formally, that the President should refer this Bill, if it is passed, to the Supreme Court under Article 26 because they have no confidence at all in its constitutionality. If it is not constitutional — and the Bill, in effect, is section 2 — the Bill should not be passed. If we have to compromise just short of not passing section 2——

We will come to section 2 later. We are now dealing with amendment No. 16. Let us confine our remarks to the amendment before the House.

What we are seeing on this amendment could be described as a ritual dance on the part of the Fine Gael Party and the Government. The position of the Fine Gael Party on this issue is clear enough. They do not want this Bill——

The position of the Labour Party has gyrated a bit over the past month.

I do not think so. We have been fairly consistent so far as this Bill is concerned. Our position has been consistent and quite clear.

Have you taken Deputy Stagg back in again to the party?

Deputy Stagg never left.

Was he censured for——

Let us hear the Deputy without interruption.

I will deal with the position of the Fine Gael Party first. I can understand their problems and their nervous laughter.

We have no problems at all. Everybody seems to be worried about our problems.

The gall which they are showing in their attitude reflects no credit on them and that will be clearly seen because they have no consistent position on the matter. Just look at thir statements. Yesterday, Deputy Barrett said that they do not see the need for this legislation. The Fine Gael Party spokesman on Justice, Deputy Barrett, for whom I have great respect and who I have known for many years, said that they do not see the need for this legislation. Yet they did not vote against it on Second Stage. That shows the approach of the Fine Gael Party to this matter. They do not want the legislation and they are not interested in safeguards. As far as they are concerned, if a request comes from Britain they say just send him off and let the British deal with him under their trial systems, such as they are. That is the position of the Fine Gael Party.

I would be grateful if the Deputy would come to deal with the amendment.

I am dealing with the amendment. That is directly referable to the amendment. They just want to send him off and say that they do not see any need for this legislation. That is a fair enough position to take up, but if you do take it up, vote against the Bill. The amendment which they have tabled is all right as far as it goes. The matter will die, very likely, after one year.

What is the Government's position? The Taoiseach and the Minister for Justice both made very lengthy speeches in the course of a prolonged Second Stage debate and on Committee Stage they argued with great intensity, force and determination as to how certain they are and how convinced they are that this is the way to deal with the matter, that they have devised with great care, thought and examination using all of the resources available to the Government what they think is the correct and proper approach and the correct procedure in applying safeguards in extradition cases.

They have proposed this arrangement. They stand over it and argue for it with force, notwithstanding all the probing, the examinations, the votes and the testing. They stand over it with great conviction and force. It is fair enough that they should do that but if they are that convinced and that sure that this is the correct and proper way, why then do they accept an amendment that will very likely lead to the fall of the Bill, because that is what it would amount to, in 12 months time? That is a strange response from the Government who have that degree of conviction that they are doing the right thing and have looked at all the possible options on this very difficult and tricky issue.

One would have thought that, if that was their position, their response would have been that it is nonsense to suggest, as Fine Gael have done, that the Government have conducted a detailed examination of such an important matter through the Attorney General and all the law officers, and having received the advice and expertise of the Civil Service, that there should be a rehash of this Bill in 12 months time both in the Dáil and in the Seanad. They should say that they could not accept that because they know they are doing the right thing and they have no doubts about this measure. I wonder do they have doubts about this measure or any doubts about what they are doing. Either they have or they have not.

If they have doubts about it they should not have introduced it and if they have no doubts about it they should not accept the Fine Gael amendment. Both cannot be right. An explanation is called for and that is what I mean, a Cheann Comhairle, when I say that there have been antics, gyrations and manipulations behind the scenes of this issue. An explanation is called for. We say that safeguards are necessary but not those proposed in this Bill. If as was signalled, the Government accept this amendment all I can say is that the doubts we have about this Bill are well-founded and the Government have some measure of doubt about it.

I am not too sure what Deputy Taylor is getting at. From the start of this debate I have made it absolutely clear that, as far as the Government are concerned, these new arrangements would be on trial for 12 months. That is a perfectly sensible approach. We are satisfied that what we are doing is right and that we are striking the right balance between the rights of the citizen and safeguards, on the one hand, and the workability of extradition on the other.

It is sensible and right to look at this matter in 12 months time to see exactly how the new arrangements are working and whether we should take a new view of them. I want to point out to Deputy Taylor that in my Second Stage speech I enunciated that view point very clearly and very specifically. I said that, if the arrangements are not adhered to, I know the Dáil and the people would expect me to come back and set the arrangements aside. That is exactly what I said in my Second Stage speech and that is exactly what I am saying now. That decision on our part applies from both aspects.

On the one hand, if the arrangements are not working satisfactorily, if there is not scrupulous regard for what is in the legislation and if the arrangements are not operated fairly both in the letter and in the spirit, then this House should look at the arrangements again and take a view of them. On the other hand, if it transpires that the new arrangement are unnecessarily cumbersome and are not working satisfactorily, we should also have a second look at them. All of the people I speak to who support what the Government are doing and who support the balance we are trying to achieve are also very anxious that we should give this additional assurance. We should give an assurance that we will look at the working of the Bill and the arrangements after 12 months to see whether anything more is required, or whether any changes should be made.

That is directly related to the other proposal in the Bill which has fairly widespread support in the House, that is, that the workings of the new arrangements should be strictly monitored and carefully categorised and that the Government should report to the House on exactly what has happened. I cannot see how anybody could quarrel with the conjunction of those two principles. On the one hand, we will monitor the workings of the arrangement and report to the House on them and, if any problems or difficulties arise either on the safeguards side or on the workability side then we will have another look at the matter in this House in 12 months time. The way to make sure the House looks at it in 12 months time is to do exactly what is proposed in the Fine Gael amendment or an amendment we will put down on Report Stage.

As everybody knows who has experience of these matters and the way this House works, if there is not such a mandatory provision compelling the House to do something about legislation after a certain period nothing will be done about it. The fact that we have in this legislation some provision of this kind compels us all in 12 months time to take note of the situation, to look at the arrangements, see if they have been scrupulously adhered to in the spirit and the letter and if they are working satisfactorily in so far as extradition is concerned and on the basis of that take a decision about the legislation. I cannot see how any honest, democratic parliamentarian can take exception to that proposal.

Why defer it to Report Stage? What is wrong with the amendment that is there?

I will propose on Report Stage, instead of referring to the section, to say "the Act". If we are going to review it, let us review the whole Act in 12 months time. I suggest to Deputy Barrett and to the House that if this amendment is withdrawn on Committee Stage we will bring forward what I hope will be a satisfactory amendment which will be in line with the principle here but will apply to the whole Act and it will have from our point of view a more satisfactory form of drafting. The principle is totally unassailable. Everybody knows that extradition is of fundamental importance from every point of view to civil rights and the protection of our citizens. In my Second Stage speech I said extradition is one of the legal weapons which enables us to fight terrorism. Therefore, we are making important changes in the legislation and simple, parliamentary common sense would suggest that we do something along the lines suggested in Deputy Barrett's amendment.

I thank the Taoiseach for accepting the spirit of our amendment. It is quite acceptable to us that this matter be left over to Report Stage. I would like to deal with one or two comments by previous speakers. Deputy Taylor was accurate when he said I had said I saw no need for this legislation, but he left out an important part. I also said I saw there was need for safeguards and the party on whose behalf I am speaking see a need for safeguards. We said that those safeguards are in place at present by way of an administrative arrangement but we questioned why those safeguards were not operating. We said also we saw no difficulty about enshrining those safeguards that are there at present in legislation if that is possible. That, in effect, is being attempted here.

We disagree and have question marks about the operation of section 2 of this legislation, but it is perfectly reasonable and understandable that on Committee Stage an Opposition party should seek to have a Bill amended. We have attempted to do that. We have circulated constructive amendments in order to generate debate on one occasion and on others to have adequate changes made that we regard as essential safeguards. I am prepared, and I think any reasonable person would be prepared, to accept that there may be a different point of view from the one I hold. If after 12 months I am proved wrong I hope I will be able to say I was wrong and that it is working well. On the other hand, we would be quite entitled, if after 12 months we find it has not been working, to say, "We told you so. You should never have proceeded." That is a halfway stand on an issue of this nature and for that reason I am pleased to hear the Taoiseach say he is prepared to accept the spirit of this amendment on Report Stage.

Is amendment No. 16 withdrawn?

(Limerick East): I would like to say a few words before it is withdrawn.

If the amendment is withdrawn by agreement we might proceed to other important business and deal with other aspects of the Bill.

(Limerick East): I would like to speak for three minutes and then I think we will withdraw the amendment. Our position has been made very clear in the past few days. We would have been quite happy with the 1987 Extradition Act that went through at midnight on Monday. We felt the statutory safeguards which were in position would have been adequate.


We are talking about administrative, non-statutory safeguards.

(Limerick East): Non-statutory. I know there is another view in the House which would demand statutory safeguards. I have heard eminent legal people inside and outside the House arguing on the relative merits of those safeguards being vested in the DPP or the Attorney General, an arrangement along the lines of the extradition treaty with the US or a full-blown prima facie provision. I have not really a strong opinion on the merits or demerits of any of those arrangements but that which makes extradition more difficult would be opposed by our party.

However, it comes down to this. If as this Bill operates when it becomes law people who clearly should have been extradited are evading justice that is not satisfactory. That is why we have put forward this amendment and that is why we are so pleased the Taoiseach has accepted it. I think none of us with a theory on the effects of these provisions will know whether they will act in the manner in which they are purported to act until the measure has been in operation for some time. The idea that we will see how it operates and then the Bill will lapse unless reactivated by a positive motion in this House is very good.

There has been some gibing about Fine Gael's position on this against the background of a promised or threatened general election. It would be very bad for this country if this Dáil was to fall on the matter of extradition. I am prepared to fight an election any day on unemployment, emigration, the economy and other matters, but the passions that would be released on an election which purported to be about extradition, at least in the early stage of the campaign, would be bad for our country and would have particularly adverse affects on the Anglo-Irish Agreement

The Extradition Act, 1987, arose out of the Anglo-Irish Agreement. The Taoiseach who had initially opposed the Anglo-Irish Agreement has now come around to working the Anglo-Irish Agreement as best he can. If the 1987 Act had not come into effect on Monday night, that would have dealt a devastating blow to the Anglo-Irish Agreement and would have undermined the confidence of many people in Northern Ireland in the bona fides of the government in working the Agreement.

It is a major move towards improving relationships between the two Governments that the Taoiseach decided, somewhat belatedly, that the 1987 Act would come into operation on Monday night and would not be inhibited. We are now in a position where the Taoiseach and his Government can work for the full implementation of the Anglo-Irish Agreement over the next 12 months. That would have been questionable if this Act worked in a manner which brought about a situation where people who should clearly be extradited to the United Kingdom or Northern Ireland were evading justice and hiding behind the purported safeguards of this Act.

If the Act does not inhibit extradition in that way, I think the way is clear for the effective working of the Anglo-Irish Agreement which I consider to be so important. This mechanism, accepted by the Taoiseach, in the Act which will enable this House to allow the Act to lapse if it does not work as it is intended to work is a very effective mechanism for getting over the difficulties which might arise in the next 12 months in the working of the Agreement.

The Agreement has done a number of things. I believe that the Unionist population in Northern Ireland traditionally had two vetos. First, they had a veto over British policy in Northern Ireland and, secondly, they had a veto by their very existence over the unity of this country. The Anglo-Irish Agreement has removed the first veto and the Taoiseach should now work through the Anglo-Irish Agreement towards a devolved Government in Northern Ireland and a restoration of peace and prosperity in that community. The second veto remains and it remains by the very existence of the large population in Northern Ireland who do not want to participate in a United Ireland. That remains the position.

I am sorry to interrupt the Deputy but it is obvious that he is straying pretty far from the amendment before the House.

(Limerick East): I think it is worth making these remarks because our attitude to this Bill is influenced in a major way by the possible effect it could have on the working of the Anglo-Irish Agreement. I would like to ask Deputies on my right to appreciate that fact. The former Tánaiste, Deputy Dick Spring, played a major role in negotiating that Agreement. The former Attorney General, John Rogers, played a major role in the implementation of the Agreement over the first 12 months of its operation.

Deputy O'Malley's party had their origins in a large way in the Anglo-Irish Agreement because the significant break with the Taoiseach's party occurred against the background of Anglo-Irish relations. The issue for us here is far larger than the set of safeguards which the Taoiseach is trying to put into the law on extradition in this country. We should reflect on what I have said in the House and we should stop the gibing about who is afraid of the electorate and who is not. That is not the issue so far as we are concerned. I am very glad the Taoiseach has accommodated our views and is taking this amendment on board.

Amendment, by leave, withdrawn.

There are two Government amendments of a textual kind of section 2 which I would like the House to consider. The first amendment proposes in page 3, subsection (1) (a), line 4, to delete the word "this" and substitute the word "the".

Is that agreed? Agreed.

The second amendment proposes in page 3, subsection (1) (b), line 12, to insert the word "by" before the word "the".

Is that agreed? Agreed.

Question proposed: "That section 2, as amended, stand part of the Bill."

I want to speak against the section as amended. I am happy to have the opportunity to do so and, in fact, it is the only opportunity I have had to date to speak on any matters relating to this Bill because unfortunately the time constraints involved are such that it is not possible for Deputies who are interested to make contributions. There are a number of things I would like to say about this Bill.

When the Whips met last week to discuss the timing arrangements for the taking of this Bill I sought to have the Committee and Remaining Stages of the Bill taken next week because I felt the House would need some time after Second Stage to reflect and consider the kind of amendments that would be appropriate. Deputy Howlin, for the Labour Party, agreed to this but because of the support for the Government proposal by the Fine Gael Party that was not possible. Last night when we sat down to reconsider the arrangements I suggested again that the Report Stage might be put back until next week. I am sorry we did not agree to that because this morning we have seen already some change of heart by the Government who are prepared after 12 months to allow this section effectively to go out of operation until a motion to the contrary is passed by both Houses of the Oireachtas. If we had left the matter until next week perhaps it could have been agreed that the whole Bill could go out of effect and we might have been able to start drafting a more appropriate Bill to meet the circumstances.

This section is the fundamental matter involved because it gives specific powers to stop or not to stop the extradition of citizens to Northern Ireland and Britain. There are a number of things I would like to say about this. The unilateral decision by this country, which is now a party to the Anglo-Irish Agreement, to proceed down this road is very dangerous, indeed. That decision in itself has caused enormous problems in Anglo-Irish relations. The comments we have heard from British politicians over the past few days re-enforce my view that irreparable damage has been done to that Agreement.

We are in a unique position — a position we were not in until two years ago. We now have an Anglo-Irish framework whereby the Government of this country, representing the people of this country and the Nationalists in Northern Ireland, and the Government of Britain, representing for the time being the majority in Northern Ireland, can sit together in a political structure and work out their differences. It is tragic that safeguards of this kind, or whatever kind, could not have been agreed within that Anglo-Irish forum. When Deputy Blaney was told the 1987 Extradition Act would wither away he said: "In my view we are allowing the Anglo-Irish Agreement, unfortunately to wither away." Unless the two Governments are prepared to negotiate and discuss with each other through that Anglo-Irish Conference, there is absolutely no point in pretending that we have an Anglo-Irish Agreement that is effective and working.

The bringing forward of this legislation in the circumstances in which it was brought forward and the manner in which it was brought forward and the background against which it came about in the first instance — the fact that we sought in the first place to try to insult the British Ambassador and implied that he was doing all kinds of strange things — have all led to difficulties. It is regrettable that we are now in a situation where things are so bad that we are trying for PR reasons — and in particular the Fine Gael Party — to find some way out, hoping that in 12 months time the thing will fade away, that there will be no motion before the House, that people will not bother, just as there was no motion before the House as we ran up to 1 December.

We all know that 12 months is a long time in politics; six weeks is a long time in politics. Six weeks ago we would not have thought of considering this Bill; I do not think we would have ratified the 1987 Act but circumstances changed and a lot of people changed their minds. I have no doubt that circumstances will change again. If our courts make certain decisions in regard to warrants for extradition under this legislation after tomorrow afternoon people may change their minds again. We seem to form our attitude to such matters on the basis of one episode or another and I do not think that is satisfactory.

According to the Fine Gael amendment this section will cease to be in operation at the expiry of 12 months unless a resolution to the contrary has been passed by both Houses of the Oireachtas. In other words, as Deputy O'Malley said, the provisions in the Bill will collapse because they all hinge on that section. The Taoiseach told us that he made it clear last week that that would be the case. The Taoiseach did not make that clear. In the course of his contribution the Taoiseach said:

This legislation will provide that in future the Attorney General will have a statutory obligation to prepare and submit to the Government an annual report on the operation of extradition arrangements and the cases that have taken place under these arrangements in the previous 12 months.

That is fair enough but the Taoiseach went on to say:

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

To say "if the arrangements are not working satisfactorily after 12 months" is very different from saying that automatically this provision will go out of operation after 12 months.

There are two aspects to it. The Deputy should quote my speech fully. I said on either side or the other.

I accept on either side or the other, that if it is too free and people are being sent forward who should not be extradited or that if it is too restrictive the Taoiseach will bring forward proposals in 12 months but that type of review of legislation is very different from accepting an amendment and writing into the legislation a provision that allows a section to fall and go out of operation in 12 months time. They are two separate matters. As a result of the House accepting the Fine Gael amendment we are saying that the Bill stands for 12 months. I am not a lawyer but having spent a week listening to lawyers from all parties I have come to the conclusion that the one thing they have in common is that they all differ. Fianna Fáil lawyers or lawyers who are members of Fine Gael, Labour or the Progressive Democrats all differ on this issue and that view seems to change from day to day. However, one thing they all have in common, with the exception of Deputy Kelly, is the belief that this issue will be found by the courts to be unconstitutional. At best some of them feel that its constitutionality is so dubious that they would not put their money either way. Obviously, the person not being extradited will not challenge this issue in the court, he or she will be happy enough, but the person whose extradition is proceeding will challenge the legislation and while that challenge is underway — it could take 12 months or two years and tie up many people in the litigation process — there will be no extradition from this country to Britain or Northern Ireland. As Deputy O'Malley said, if the Bill is found unconstitutional Part III will fall with it because the two are tied up.

Are we so crazy in the House that we are prepared to take a chance, to have a period of 12 or 18 months, or even six months, when there will not be effective extradition between this country and Northern Ireland and Britain? If that is the case is it any wonder that people in Northern Ireland throw untrue allegations at us that hurt. What can we expect if we are prepared, having heard all the legal advice available to us, to have no extradition from this country to Britain or Northern Ireland for an unspecified period of time? It is dangerous and irresponsible and it would be wrong of Members to abstain in the vote on this section later on the basis that a trivial amendment will be written into the Bill later on. Let us not pretend that, on the one hand, we want extradition that is workable and then behind the scenes to write in provisions for PR purposes, so that we can go out and sell them as safeguards or protections.

I should like to refer to the provision in section 2 about the lapse of time. That provision states:

"(bbb) by reason of the lapse of time since the commission of the offence specified in the warrant or the conviction of the person named or described therein of that offence, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under section 47, or",

However, in accepting the Fine Gael amendment last night a further clause will be added, "any other exceptional circumstances."

As well as the lapse of time.

I listened to the Deputy without interruption and he should permit me to continue.

The Deputy should quote the provision carefully; she is being mischievous.

Amendment No. 12 which was agreed by the House last night states:

In page 3, subsection (1) (b), line 19, after "offence", to insert "and other exceptional circumstances".

What are "other exceptional circumstances?"

As well as the lapse of time.

Is it the case that five or ten years from now the people who were involved in the atrocity in Enniskillen will, by virtue of "other exceptional circumstances" or the lapse of time be allowed to escape extradition? More appropriately, will the people who placed the bombs in Dublin in 1974 because the event occurred 13 years ago and because of "other exceptional circumstances" remain in Northern Ireland or Great Britain? It is wrong to support an amendment that permits that. If an atrocity is committed and people are wanted for serious crimes it is not good enough that by virtue of a lapse of time and other exceptional circumstances — I do not care what they are — they should be allowed to escape.

Is the provision being written into the Bill so that we can serve some people in a political way, so that we can say that "X" and "Y" are okay because an event occurred ten or 15 years ago and they need not worry? It was highly irresponsible of the House to fail to vote for the Progressive Democrats' amendment to delete that section from the Bill and to make the position worse by adding the Fine Gael proposal. I fail to understand why a party who seem so committed to the whole principle of extradition, to making it as workable and as easy as possible, should seek to introduce an amendment like amendment No. 12.

My few friends left in the Fianna Fáil Party tell me that 57 Deputies and Senators spoke about this issue and I understand that most of them did not want the 1987 Act to be implemented on 1 December. It seems extraordinary how those people can be silenced by this rather irrelevant Bill. It is either unconstitutional if, as Deputy Birmingham and others say, it is giving certain judicial powers to the Attorney General or it is no safeguard at all if it is merely an administrative matter, as was proposed last year by way of administrative arrangements. At least then nobody pretended that there were any great safeguards. I wonder how so many people can be silenced by the Bill but what is more extraordinary is that the people who bought the principle on the basis that there were safeguards can remain silent when told it will go out of operation in 12 months time. Where are they now? Where is Deputy O'Dea and all the other Deputies who were so vociferous over the past few months? Many of them do not support the idea of extradition — in some way if you are involved in the cause you should not be extradited. It is extraordinary that this section which will cease to be in operation 12 months from now — and that is an amendment proposed by Fine Gael which the Government are quite happy to accept — should not have any opposition from within the Fianna Fáil Party whose Deputies were responsible for this Bill being introduced.

This section is the kernel of the Bill. People who believe the Bill is constitutionally dubious, as Deputy Birmingham and others have said, or who believe it is inappropriate that the Attorney General for whatever reason should not be given these powers — I might add we have been served very well by our Attorney General: it is nothing to do with the people involved, it is to do with the Office — or people who believe that safeguards are so vital and this is a marvellous safeguard which will go out of operation in 12 months, represent 90 per cent of the Deputies in this House. If all these forces combine, which they are obliged to do if they believe these things, then obviously this section will not stand. If this section does not stand, there is not much point in having this Bill because all the other sections are either incidental to this section or so accidental to this section that they do not really matter.

I hope the Opposition parties who have made such a song and dance about giving these powers to the Attorney General in particular — the Fine Gael Party, the Labour Party, The Workers' Party and the Independents — will be here in force when we are voting in the next few minutes to defeat this section. We should not let this go into our legislation. The responsibility will be on our heads if this section proves to be unworkable, as I believe it will. It will be unworkable from the point of view of the safeguards and from the extradition point of view. On both counts we have a responsibility to defeat this section and that is why we are opposing it.

I have not had an opportunity to express my views on this Bill.

I would remind the Deputy he has two or three minutes.

On a point of order, the order agreed deals with the amendments as numbered. The question, whether section 2 be agreed, is not among those amendments. My reading is that there is nothing to require us to terminate a discussion of this section by 12.45 p.m. I think we can carry on with this debate because this is a very important stage in the proceedings.

The Deputy will appreciate that in respect of amendments already dealt with there was an assumption that the questions would be put on the amendments and that would mean we were discharging the section. While the Deputy can argue technically that that does not apply here, he will accept that in accordance with the timetable agreed — and however restricted this may appear — these are the constraints within which we are expected to operate. I ask Deputy McCartan to accept that, to let me put the question and then proceed to section 3 to which he has an amendment.

The next amendment is in the name of The Workers' Party and I would be prepared to give some of the time ordered for the amendment to this section because Deputies should be heard at this stage since this is the kernel of the Bill. I would be happy to let the debate proceed until 12.15 p.m., allowing 30 minutes for amendment No. 17.

I regret that on the first occasion I have called Deputy Fitzpatrick to contribute it has not been possible to allow him to proceed.

I do not think anybody wants to be bloody-minded about this. If amendment No. 17 is not going to be pressed or discussed——

No. Amendment No. 17 is very straightforward and could be disposed of in about 15 minutes.

Perhaps we could continue with the debate on this section until 12.15 p.m., on condition that the question is put at 12.15 p.m.

I am happy with that.

Is the House happy with that?

Deputies who wish to contribute should be given an opportunity to do so.

We have to be more specific. Am I to take it that there is agreement that the question will be put at 12.15 p.m.?

Yes, and no contribution will be longer than five minutes.

I appeal to Deputies to be mindful of the fact that there are other Deputies who wish to contribute. I am calling Deputy Fitzpatrick and I know he will set the headline.

This is the first opportunity I have had to contribute to this debate. I have very definite views on two aspects of this Bill. First, I regard this as a very important Bill. It is important in this age of rapid travel and, having regard to the particular circumstances of this island, we should have extradition available because nobody wants to have our jurisdiction a haven for serious criminals. Secondly, I believe that there should be adequate safeguards for suspected persons who are threatened with extradition.

I do not believe section 2 is satisfactory. I do not have very much time at my disposal but I do not think I could summarise the Bill, or this particular section, better than by using the words of an eminent senior counsel, Mr. Hugh O'Flaherty, who said in last Sunday's Sunday Press:

This legislation is experimental but it is worth a try. If it does not prove satisfactory then something else can be tried.

That sort of thing is entirely unsatisfactory when we are dealing with something as serious as extradition.

I do not believe section 2 is satisfactory because I do not accept it is proper to leave the decision whether a person is to be extradited to the Attorney General. I want to make it perfectly clear that when I am speaking about the Attorney General I am not speaking about an individual. I am speaking about the constitutional Office of the Attorney General. The Attorney General is not, in my opinion, an independent Office. He is appointed by the President on the nomination of the Taoiseach. Therefore, he is a political appointee, so are judges but they have fixity of tenure.

It is also stated in Article 30 that the Attorney General shall not be a member of the Government, the Attorney General may at any time resign from the Office by placing his resignation in the hands of the Taoiseach for submission to the President. The Taoiseach may, for reasons which to him seem sufficient, request the resignation of the Attorney General and if the Attorney General does not give him his resignation, he may then terminate his appointment by advising the President to terminate it.

We are asking an office holder who is appointed by the Taoiseach of the day, and who can be removed from office by the said Taoiseach without giving any reasons, to perform judicial functions. For the purposes of my argument let us presume that if section 2 is constitutional — I do not think it is — then the Attorney General is not a suitable person to ask to adjudicate on this. I am not referring to any individual holder of that office but if we cannot discuss the office without being accused of being personal, we cannot conduct a reasonable debate in the House. It is well known — and has been accepted down through the years — that unless the holder of Office of Attorney General falls foul of the Government of the day, he is usually offered one of the highest posts in the land, a judgeship, on a permanent basis. That is something we cannot put out of our minds, I do not have to labour it further. He is not an independent person, he is a political appointee and it is wrong that the freedom of a person should be in the hands of such a political appointee.

Maybe it is a case of fools rushing in where angels fear to tread, but I am convinced that the proposal is not constitutional and that it will be held to be unconstitutional to authorise the Attorney General to sift the evidence, to decide whether there is sufficient evidence and to give him the right to issue a direction that a person should not be extradited. If he does not give any direction, the failure to do so is a finding by him that there is an intention to prosecute and that there is sufficient evidence to warrant that intention. That is a judicial finding and, in order to make up one's mind whether it is a judicial function, one must bear in mind that three Acts are involved, the 1965 Act which introduced the court proceedings, the 1987 Act which dealt with political offences and the Bill now before the House. The court must have regard to each and every one of those statutory Acts when considering whether a person is being legally extradited.

One of the most important matters to be decided is whether there is an intention to prosecute and, more important still, whether there is evidence to ground such an intention to prosecute. Whether there is sufficient evidence to warrant that is the one thing that is being taken away from the courts and handed over to a non-judicial person because, whatever else the Attorney General is, he is not a judge.

I wish to remind the Deputy that the two Deputies whose co-operation made it possible for him to speak——

I am nearly finished.

You did not give that impression.

I have no doubt that it is unconstitutional and I hope it will go before the Supreme Court very shortly.

We in The Workers' Party, at the conclusion of the debate on section 2, are very disappointed with the response of the Government to our representations. We sought to advance a case for an improvement in the scheme the Government were advancing. We made the point that the feature of proceedings in open court with the opportunity of persons to be heard, the important right of a person to argue and to make representations, was absent in their scheme. We accepted that the vote on that aspect of the debate went against us and our further proposal in regard to a judge of the High Court again with the active duty of intervening in the process — which has not yet been resolved to our satisfaction — a judicial person, with the element of independence about which we were so concerned through the debate, was rejected. For the benefit of Deputy McDowell — who is not here — I should like to state that we made all our points and that, although we lost the first round, we still supported the Progressive Democrats. It is a pity that the Progressive Democrats could not discuss the prospect of second preference with us, perhaps in relation to a High Court judge or the notion of the Director of Public Prosecutions. We were prepared to go that distance to see if an agreement could be arrived at in the House because our job here is to try to find at least some common ground on which we can agree.

The Bill proposed by the Government — even if our amendments were not successful — would have been given very serious consideration but what really changed our mind to the extent that we will oppose section 2 was the unbelievable and unholy alliance founded between the Government and Fine Gael. The most sinister move in all this is the proposals embodied in amendment No. 14, to take away from the courts any function whatsoever of review, even of the limited scheme of the Attorney General proposed by the Fianna Fáil Government. The suggestion by the Government that they would give fair consideration to that provision and bring in, in collusion with Fine Gael on Report Stage, something that would accommodate the two parties, is sinister.

I address myself to those members of the Fianna Fáil Party who were told that the Attorney General's scheme contained an element of safeguard which would be looked at, protected, reviewed and examined by the courts. Their understanding was that whatever the Attorney General did would be available for discussion, review and comment by the courts when eventually the person sought would be brought there for extradition.

What the Taoiseach is seeking to do in collusion with Fine Gael is to take out of their scheme, with all its imperfections, any notion of judicial review, any notion of judicial concern about what might not or might be done by the Attorney General. The Taoiseach is cleverly doing this behind the backs of his own party members who are not here to listen to him. I am addressing those members now and I urge them to sit down with the Taoiseach before Report Stage and ask him what exactly he is doing in collusion with Fine Gael. In the view of The Workers' Party they are seeking to set at nought the whole notion that what is being proposed in this Bill will offer any safeguard to persons who might be sought for extradition purposes. For that reason The Workers' Party are exceptionally concerned and are not prepared to support this section.

We have only 15 minutes remaining. With the co-operation of the House I will call Deputy Taylor now and ask him to give us his thoughts in five minutes. I will then call Deputy Birmingham to do the same and the Minister will have five minutes to conclude.

While we in the Labour Party may comment on what appears to be collusion between Fine Gael and Fianna Fáil in this debate, we differ from The Workers' Party in that we will not let that factor alone affect our decision on this Bill. We look at the merits of the Bill to see if it will provide what we regard as bottom line safeguards.

In the long debates taking place here we have tended to overlook the context of what happened on 1 December. The Extradition Act, 1987, was passed quite a long time ago and its coming into operation was deferred until 1 December 1987. We should recall why. That was an unusual circumstance for a particular purpose. I would refer back to a speech by Deputy Dukes who was then Minister for Justice on 4 December 1986 as reported at column 1379 of the Official Report when he referred to the fact that the coming into operation of the Extradition Bill was being delayed for almost a year and said that this was subject to certain things being done and to certain things happening in that year. Deputy Dukes said that was why he was leaving open the possibility of the coming into operation of that Act at all.

One of the things he said was that it would depend on

... seeking measures which would give substantial expression to the aim of underlining the importance of public confidence in the administration of justice.

At column 1381 Deputy Dukes said:

What has been achieved or foreshadowed so far in these areas does not measure up to the level envisaged when the Hillsborough communique was issued but the Government are firmly of the view that we can now have a reasonable expectation of satisfactory progress over the next six months.

We should consider whether these expectations about the British side have come to pass. They have not. Therefore, the context in which that delay in the coming into operation of the 1987 Act comes into question. It is interesting that further on in the same column Deputy Dukes referred to a quote from the Leader of the Opposition, Deputy Haughey, when he said:

The leader of the Opposition, Deputy Haughey, was quoted recently as having said that one would have thought that the appropriate way of dealing with this matter would be to postpone legislation on extradition until the necessary progress had been fully achieved.

The Deputy is a lawyer. He should not fall into the trap of hearsay evidence.

I am just quoting what is in the Dáil Official Report.

You are quoting what somebody else said I said.

True, but it is on the Dáil record. Extradition depends on trust between two countries. If there is trust between the two countries all sorts of things may be possible; all sorts of administrative procedures may be possible and very little may be required for extradition. Does that degree of trust exist here as to the administration of justice in the UK and in Northern Ireland? That is the nub of the matter. If the answer is yes all sorts of considerations would be possible and procedures would be satisfactory all round, but it is fair to say that that degree of trust does not exist. Consequently, statutory procedures with an adequate degree of safeguard are required. That requires the sort of set up envisaged by the Labour Party amendment. Our proposal has not been accepted and in those circumstances we will oppose section 2 as amended.

The section which is about to be put to the House is much improved on the original section. I will mention the differences that now exist. The first and most substantial difference is that we now have the agreement of the House to the fact that this entire Bill will lapse in 12 months time. We have been concerned lest what are intended as safeguards would represent unrealistic obstacles, perhaps insuperable obstacles——

That is not in the section.

It is an amendment to section 2 accepted by the Government.

No, it is not.

We welcome that and regard it as a major step forward. In some measure our concerns about the Attorney General have been met in so far as it will now be an offence to make representations and seek to influence the actions of the Attorney General in deciding whether or not to issue a direction. That is a Fine Gael amendment to this section. We are pleased too that its workability and flexibility has been improved by the willingness of the Government to accept our amendment that the decision by the Attorney General can be revoked if fresh information comes to light. For those reasons the section is significantly improved.

I do not take pleasure in the extent to which Fine Gael and the Progressive Democrats find it necessary to disagree with each other in this House. However, the performance of the Progressive Democrats on this issue has been highly irresponsible. They were a party formed, they said, because of their concern for the Anglo-Irish Agreement. Last year time after time they sought to insert into the Bill provisions which would have made the Bill absolutely unworkable. They did that because they were hijacked by a number of their back-room advisers, some of whom were on an ego trip. They have maintained that irresponsibility in the course of this debate.

It is with particular regret that I single out for mention the contribution of Deputy Harney, a Deputy for whom I normally have the highest respect. The remarks made by Deputy Harney with regard to the lapse in time section of this Bill are mischievous. The danger in them is that they can be picked up elsewhere and misrepresented by people who wish this House, this Government and this legal system no good. It is not the case, as Deputy Harney suggested, that people who committed attrocities at Enniskillen or in other places will be able to say: "I have been at liberty for a number of years; you cannot extradite me."

The section as it was first introduced required the court to have regard to all of the circumstances, and what circumstances would be more relevant than the gravity of the offence? The effect of the Fine Gael amendment was to put beyond doubt that a lapse of time alone would not be sufficient to justify the court refusing extradition. There would have to be some additional factor, some additional extraordinary circumstance, to warrant that. We welcome the decision of the Government to accept that amendment.

As I understand it, the section, in large measure, reflects a decision of the former Chief Justice, Mr. T.F. O'Higgins, when he dealt with circumstances in which a group of people escaped from the Maze at the same time. Some were picked up, pre-McGlinchey and, when their extradition was sought, the court said they could not be extradited because the offence was political. Others were picked up after the McGlinchey case and might otherwise have been extradited. The court said: it would be unfair to extradite you and to treat some of you differently from the others. That seems to me to be an eminently reasonable position and one to which I would have thought the section would give effect.

The Fine Gael amendment makes it quite clear that lapse of time, of itself, would not be sufficient. I regret very much that Deputy Harney should have intervened in the way she did because I cannot but believe that there will be people who will go through these debates and who will find in those remarks, particularly in that intervention, the opportunity for considerable mischief.

In calling the Minister I must remind him that he, too, must suffer the time limitations that have been imposed.

I agree wholeheartedly with what Deputy Birmingham said with regard to the unbelievable, most reckless, statement made by Deputy Harney on the lapse of time safeguard. It is quite obvious to everybody who listened that she completely misunderstands what is in the section because, if she did understand it, there is no way whatsoever she would have said what she said. We will probably hear more about that statement. I fear it will be used against us, that it will be used by those who, for their own reasons, want to belittle what we are trying to do in this House and State in regard to maintaining and improving our security position in the State. I fear they will try to use it to belittle our efforts in what we are doing under the terms of the Anglo-Irish Conference.

I regret that again this morning Deputy Desmond O'Malley took it upon himself, the second day in a row, to try to say that the Anglo-Irish Conference is not working. Nothing is further from the truth. I thought I had cleared that up totally for Deputy O'Malley yesterday afternoon when I read for him part of a statement made by Mr. Tom King, the Secretary of State for Northern Ireland, during the course of an address he made in Oxford University in recent times. It is a pity that such recklessness is the order of the day for the Progressive Democrats. I say that with deep regret. I bear in mind as well an interview given by Deputy Desmond O'Malley, as Leader of that party, on BBC 2 "Newsnight" at the beginning of last week when, in casual throw-away remarks that were petulant and petty, he belittled the efforts of this country in doing what this country is committed to do, that is to fight terrorism in every way possible. I regret that very deeply. Since that interview I have read reports of what was said. If Deputy O'Malley's aim is to feature in the British tabloids, then so be it, let him be known for that.

This section makes provision for four separate matters. Its principal effect is to provide for a new safeguard in Part III which deals with extradition to Britain and Northern Ireland, under which the Attorney General is empowered to direct that warrants shall not be endorsed for execution in the State. Briefly, the new procedure which is provided for will — subject to an exception mentioned later — mean that each time a warrant for the arrest of a person accused of an offence is submitted to the Garda Commissioner for backing by the British police or the RUC that warrant will be referred to the Attorney General before being endorsed by the Garda Commissioner under section 43 of the 1965 Act.

In the case of each warrant the Attorney General will consider two matters: first, whether there is a clear intention to prosecute or continue a prosecution for the offence specified in the warrant and, second, whether that intention is founded on the existence of sufficient evidence.

The exception I have mentioned arises where a judicial authority in the relevant jurisdiction has already ordered the person concerned to stand trial following examination of the evidence. In all cases, apart from those covered by the exceptions to which I have referred, the Attorney General will direct the Garda Commissioner not to endorse a warrant for execution unless he is of opinion that there is a clear intention to prosecute and that that intention is founded on the existence of sufficient evidence. Where such a warrant is given no further action will be taken on foot of the warrant in this jurisdiction. The Attorney General will also have power to revoke a direction. That power will enable him to take account of changed circumstances.

In addition to this change the section also makes provision for a new ground on which the High Court may order the release of a person arrested under Part III of the 1965 Act, under section 52 of that Act. That would arise where, having regard to all the circumstances, it would be unjust, oppressive or invidious to order the delivery up of the person concerned by reason of the lapse of time since the offence was allegedly committed or the person convicted and other exceptional circumstances. The section provides for certain procedural questions in relation to the proof of certain matters in proceedings.

Finally, the section provides that the new procedure and amendments referred to will have effect only in respect of warrants which have not been endorsed before the passing of the Act.

I commend the Bill to the House.

It is now time to put the question to the House. The question is: "That section 2, as amended, stand part of the Bill."

Question put.
The Committee divided: Tá, 77; Níl, 30.

  • Abbott, Henry.
  • Ahern, Bertie.
  • Ahern, Dermot.
  • Brady, Gerard.
  • Brady, Vincent.
  • Brennan, Matthew.
  • Brennan, Séamus.
  • Briscoe, Ben.
  • Browne, John.
  • Burke, Ray.
  • Byrne, Hugh.
  • Calleary, Seán.
  • Collins, Gerard.
  • Conaghan, Hugh.
  • Connolly, Ger.
  • Coughlan, Mary T.
  • Daly, Brendan.
  • Davern, Noel.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • Doherty, Seán.
  • Ellis, John.
  • Fahey, Frank.
  • Fahey, Jackie.
  • Fitzgerald, Liam.
  • Fitzpatrick, Dermott.
  • Flood, Chris.
  • Flynn, Pádraig.
  • Foley, Denis.
  • Gallagher, Denis.
  • Gallagher, Pat the Cope.
  • Geoghegan-Quinn, Máire.
  • Haughey, Charles J.
  • Hilliard, Colm Michael.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Ahern, Michael.
  • Aylward, Liam.
  • Barrett, Michael.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Lenihan, Brian.
  • Leonard, Jimmy.
  • Leyden, Terry.
  • Lynch, Michael.
  • Lyons, Denis.
  • McCarthy, Seán.
  • McCreevy, Charlie.
  • MacSharry, Ray.
  • Mooney, Mary.
  • Morley, P.J.
  • Moynihan, Donal.
  • Nolan, M.J.
  • Noonan, Michael J.
  • (Limerick West).
  • O'Dea, William Gerard.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Ned.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Rourke, Mary.
  • Power, Paddy.
  • Reynolds, Albert.
  • Roche, Dick.
  • Smith, Michael.
  • Stafford, John.
  • Swift, Brian.
  • Treacy, Noel.
  • Tunney, Jim.
  • Walsh, Joe.
  • Walsh, Seán.
  • Wilson, John P.
  • Woods, Michael.
  • Wright, G.V.


  • Bell, Michael.
  • Blaney, Neil Terence.
  • Clohessy, Peadar.
  • Colley, Anne.
  • De Rossa, Proinsias.
  • Desmond, Barry.
  • Gibbons, Martin Patrick.
  • Gregory, Tony.
  • Harney, Mary.
  • Higgins, Michael D.
  • Howlin, Brendan.
  • Kavanagh, Liam.
  • Keating, Michael.
  • Kemmy, Jim.
  • Kennedy, Geraldine.
  • McCartan, Pat.
  • McCoy, John S.
  • Mac Giolla, Tomás.
  • Molloy, Robert.
  • O'Malley, Desmond J.
  • O'Malley, Pat.
  • O'Sullivan, Toddy.
  • Pattison, Séamus.
  • Quill, Máirín.
  • Quinn, Ruairí.
  • Sherlock, Joe.
  • Spring, Dick.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Wyse, Pearse.
Tellers: Tá, Deputies V. Brady and Briscoe; Níl, Deputies Harney and Howlin.
Question declared carried.

Notwithstanding the order of the Dáil on Wednesday, 2 December, for procedural reasons the debate on amendment No. 17 shall conclude not later than 12.45 p.m. and the debate on amendments Nos. 18, 22, 23 and sections 3 and 4 shall conclude not later than 1.15 p.m. The debate on amendment No. 21 and on sections 5 and 6 and the Title shall conclude not later than 1.30 p.m.

I move amendment No. 17:

In page 4, lines 7 to 12, to delete subsection (4), and substitute the following:

"(4) Whenever an order is proposed to be made under this section, a draft of the order shall be laid before each House of the Oireachtas, and the order shall not be made until a resolution approving of the draft has been passed by each such House.".

The general provisions contained in section 3 are acceptable and are useful safeguards that should be incorporated in this Bill. We have no argument with that at all. Our amendment is really in relation to the procedural business of bringing an order into effect. Our amendment deals with section 3 (4). It proposes the passing of a resolution before an order comes into effect. The Bill as it is drafted is negative in a sense that, as I understand it, has never been utilised or achieved in the history of the Dáil, except once where a motion in the negative sense was brought in and acted upon by the House.

This amendment is put forward in the best traditions of parliamentary debate which are there to facilitate Opposition involvement in legislation. That principle has already been accepted by Fine Gael in their amendment No. 16 and by the Government who have agreed that it will be brought in on Report Stage by way of an amendment in the terms that our amendment is now seeking in respect of section 3. The Taoiseach said that the amendment he would bring in on Report Stage in respect of that section would be in line with the principles in the amendment in the name of Deputy Sean Barrett. The House is agreed that we should be actively involved and concerned with the workings of this important legislation. For that reason I ask the Government to be consistent in their approach and incorporate the same working approach to the orders that may or may not be made by the Minister at any time in respect of section 3.

Section 3 is exceptionally important. Everyone seems to think that because section 2 is here that is the whole cornerstone of the Bill. This section allows the Minister with — and this is important — such adaptations and modifications as he sees fit, to introduce the rule of specialty and the rule of non-extradition to a third country in relation to a request for extradition between Britain and Ireland. Those are important principles; they should be there in our arrangements with Britain. The Minister is empowered by the section by order to introduce them in the general terms laid down, with the conditions attached to them or, under Part II of the Bill with regard to our relations with other countries, with such adaptations and modifications as he thinks fit. It is envisaged that we could have an adapted or modified rule of specialty with regard to Britain or an adapted or modified rule with regard to extradition or non-extradition to third countries. The Minister has a very active function under Part II in relation to both of these rules because he can give consent, in certain circumstances, to the non-applicability of the specialty rule or to the extradition to a third country. He has an active role not just in the introduction of orders but also in the working of the rules themselves if and when they are introduced.

It is important that the Dáil be concerned in the modification, adaptation, and workings of these principles in the context of this Bill. The principle of our involvement as a House has already been underlined by the Taoiseach's remarks in response to amendment No. 16 in the name of Fine Gael. Despite the plea of Deputy Harney on the last vote to all the other parties in the House to muster their forces in support, the Progressive Democrats were singularly missing, with Deputy McDowell who was here lecturing us last evening not back to support her opposition to section 2. I ask that this time there would be all-party agreement and that perhaps, without a vote, the Minister would agree to this very simple but very important amendment.

I wish to put a question to the Minister on this issue. In general terms the view of Deputy McCartan that there should be maximum parliamentary involvement is reasonable and I hope the Government will be able to go some way towards meeting it. My question arises from the remarks made by the Taoiseach on Second Stage when he explained in the course of his speech that there would be some time delay before there is corresponding legislation in Britain and that there will be bilateral arrangements in place in the meantime. He said:

In addition, until such time as the Minister's order is made, there will be an administrative arrangement with the British authorities, which will ensure that additional charges of a political nature will not be brought after extradition and that the specialty principle will be observed.

My question is really one of language, and relates to the understanding that charges of a political nature will not be brought. We do not extradite for political offences or offences connected with a political offence, we extradite, by reason of the decisions of our courts and now of the Act that came into force earlier this week, for terrorist offences. I ask the Minister to clarify in what sense are the words "political nature" used in that sentence? I specifically want to put the following point. Let us take the most extreme example we can, let us suppose someone is extradited for the Darkley massacre and that after extradition, information comes to light which would cause the British authorities to want to change the person extradited for, let us say, the Enniskillen atrocity, I want an assurance from the Minister that the reference to political nature would not preclude the additional charges being preferred. It is only a question of language.

This amendment proposes to change section 3 (4) of the Bill which deals with the laying before both Houses of the Oireachtas of an order made by the Minister for Justice applying the provisions of the 1965 Act dealing with specialty and re-extradition to Part III cases. As section 3 (4) stands, such an order is subject to a negative resolution passed by either House within 21 days after the order is laid. The proposed amendment would instead make it necessary that there be an affirmative resolution of both Houses approving of the order before it is made.

The 1987 Extradition Act contains two provisions which provide for an affirmative order procedure. Section 10 of that Act makes an order by the Government applying the provisions of the Act to countries which are not parties to the European Convention on the Suppression of Terrorism subject to an affirmative resolution of both Houses. Section 7 of the 1987 Act also makes the making of an order under section 4 of the Extradition Act, 1965, applying Part II of that Act to a country to which it did not apply previously subject to an affirmative resolution of both Houses. In both of those instances the making of the orders in question would involve a major new departure in policy with regard to extradition in so far as it would involve an extension of the scope of the extradition arrangements which had already been approved by the Oireachtas. The proposal in section 3 of the present Bill is not on the same footing at all. What is involved here is simply an extension, with necessary modifications, of rules as to specialty and re-extradition which have already been approved by the Oireachtas for Part II cases and whose extension to Part III cases is now being provided for by statute by the Oireachtas. The provisions on speciality and re-extradition which are contained in Part II are in the form which is generally accepted internationally and that is provided for in the Convention on Extradition. It would be an excessive exercise of parliamentary control if the making of an order extending these existing statutory provisions in one part of the Act to the other part of the Act were to be made subject to an affirmative resolution of both Houses.

There may be some concern about the extent of the adaptations and modifications which might be considered necessary or expedient by the Minister when making an order under section 3. These adaptations and modifications will have to take account of the differences in terminology between Parts II and III. They would also have to take account of the different documentation which is required to support an extradition request under Parts II and III. Also under Part III it may be appropriate to provide for a shorter period than 45 days during which a person is immune from prosecution for another offence following his final discharge for the offence for which he was extradited. The period of 45 days which was referred to in Part II of the 1965 Act is derived from the European Convention on Extradition, whereas for the purposes of a similar provision in the Criminal Law (Jurisdiction) Act, 1976, the corresponding period is seven days. It is adaptations and modifications of this kind that are at issue in section 3 of the Bill. If we were to depart radically from the provisions of sections 20, 39 etc. of the 1965 Act when making an order under section 3, we would run the serious risk that this would be held by the court to be ultra vires. In any event, it is not as if section 3 (4) of the Bill as it stands does not allow for parliamentary control. The procedure is there for a negative resolution being passed if either House is unhappy with the provision made in an order made by the Minister. I am satisfied that this provides a sufficient safeguard. I do not, therefore propose to accept this amendment. However, section 3 (4) of the Bill, as it stands, refers merely to 21 days, instead of 21 sitting days and I will bring forward an amendment on Report Stage to change it to refer to 21 sitting days.

Would the Minister please deal with the point of what is a political or a terrorist offence?

I agree with the point raised by Deputy Birmingham.

In accordance with the procedural motion adopted by the House earlier, I am now obliged to put the question in respect of amendment No. 17.

I propose to withdraw the amendment and the House may consider it again on Report Stage.

Amendment, by leave, withdrawn.

We will now proceed to deal with amendment No. 18 in the name of Deputy Taylor. Amendments Nos. 18 and 21 to 23 inclusive, are related and alternatives and perhaps we can debate them together. The House will observe the procedural arrangement whereby amendments Nos. 18, 22 and 23 on sections 3 and 4 shall conclude not later than 1.15 p.m. today.

I move amendment No. 18:

In page 4, between lines 12 and 13, to insert the following:

"(5) The Minister shall soon as may be after 1 January, 1989 and in each succeeding year thereafter furnish a written report to each House of the Oireachtas on the operation in the proceeding year of Part III of the Principal Act.".

I will be brief. Having listened to the contributions made by the Taoiseach and other speakers, I ask the Minister to accept this amendment. I believe the amendment is sound in terms of what we are trying to do in the course of this debate. We are trying to ensure there is accountability in relation to the safeguards we are inserting into the Extradition Act. I think we have to look beyond the situation that will exist 12 months hence. A discussion took place this morning on an amendment in the name of Deputy Seán Barrett for a review in 12 months time and the Government took it on board. I ask the Minister, given the nature of this amendment, to consider it and indicate to the House that he would come back to it on Report Stage.

I believe that the amendment, as worded, would be a strengthening of the Bill. I would be hard pushed to see why the Government would have any fundamental objection to it because throughout the debate on Second and Committee Stages many speakers have referred to the efforts being made to instal safeguards and to ensure that they are such that they will stand the test of time. We all have various reservations as to the strength, the legality, the constitutionality or otherwise of these safeguards but what is important, irrespective of whether this Bill is tested before the Supreme Court in the coming months — and I believe it will — is that we look beyond that, whether we are back in this House seeking to clarify the legislation or otherwise.

The Taoiseach said he was trying to get the right balance between the efforts of the Government of the day to curb terrorism and to ensure that terrorism is not tolerated either in this island or in neighbouring islands. It is also part of our responsibility to ensure that this House has the opportunity to review the Act not just after 12 months, because it is reasonable to assume that for the first 12 months of the operation of this Act there will be constant monitoring of the Act and actions taken in the courts for the first 12 months. Human nature being what it is, it is also reasonable to assure that with the passage of time the vigilance and the interest by the general membership of this House in this Act might not maintain the same level as we will see for the first 12 months.

We are putting forward amendment No. 18 which would give the House and the Minister for Justice an opportunity to submit a written report to each House of the Oireachtas on the operations of the Act in the preceding year. That would give this House an opportunity to monitor on a constant and revolving basis the workings of this Act. There could be an orderly monitoring of the Act rather than motions coming before this House to set aside any aspects of the Act, or otherwise. Throughout the contributions from all sides of this House there has been a great deal of emphasis and stress on providing safeguards and monitoring those safeguards. Even though there are weaknesses as far as I am concerned in the actual mechanics of supervising or backing of warrants in relation to the Attorney General's office, it now looks likely that the Government will persist and get their way in relation to the mechanics of this Bill irrespective of one's views in relation to that. Mine are that it is neither adequate nor the best safeguard. I would have wished them to have gone further. They have obviously made up their minds.

In relation to the safeguards, minimalist as I feel they are, the fact that they have enormous complexities, weaknesses and difficulties has to be set aside at a certain stage and we must ensure that we are in a position to review and monitor the operations of the Extradition Acts. This amendment is a reasonable one and I ask the Minister to accept it because it would provide both Houses of the Oireachtas with an opportunity to monitor a very serious matter.

I understand that Deputies who put forward these amendments are all requiring a written report to be made to each House of the Oireachtas on the operation of Part III of the Extradition Act, 1965, as amended by this Bill. As indicated by the Taoiseach in the course of his speech on Second Stage of the Extradition Bill, the Government fully intend to keep the operation of this legislation under constant review. If within 12 months of its operation it is proving to be unsatisfactory, for one reason or another, the matter will be brought urgently before the Dáil for consideration as to how it might be remedied. The amendments which are before us in relation to the production of an annual report to the Oireachtas on the operation of this legislation are, to a significant extent, in keeping with the spirit of the Taoiseach's undertaking in this area.

I am, therefore, disposed to accept them in principle but I would ask the indulgence of the proposers to enable us to put together an appropriately worded composite amendment which would meet their wishes in relation to this legislation and be more fully in keeping with the requirements of the legal draftsmen. I ask, therefore, if the proposer of the amendments would be prepared to withdraw them on the basis of my undertaking to come forward on Report Stage. I am not prepared to accept amendments Nos. 22 or 23, both of which seek to impose a time limit for consideration by both Houses of the Oireachtas regarding the reports which will be made to them by the Government.

In relation to amendment No. 22, in the name of The Workers' Party, I welcome the Minister's indication that he accepts the principles embodied in the three amendments, two in the name of the Labour Party and one in the name of The Workers' Party, the position is that The Workers' Party amendment goes a little further. I would like clarification from the Minister before we depart from them because one of the features of our amendment is that the report shall be considered by each House of the Oireachtas. We state in our amendment "within 14 sitting days". I have no objection to that being extended or some other formula being devised that would accommodate the proper workings of this slow, and often unbelievably slow, House but I want clarification from the Minister that he is in agreement with the principle that the Houses at some stage, within a reasonable period, will consider the report of the Attorney General.

Amendment No. 23 in the name of the Labour Party asks that the report be laid on the table of Dáil Éireann. That does not go far enough. We are mindful of the report of the Ombudsman which was circulated to the Members a month and a half ago expressing very serious concern about the operation of that office by reason of Government cutbacks, lack of staffing, lack of facilities to the extent that the office of the Ombudsman had become unworkable. It was unable to meet any of the huge workload imposed on it in the previous 12 months, or there-abouts. Despite many efforts by Members of the House to have the report of the Ombudsman debated, no time was made available either by the Government or the Opposition parties for such a debate. It is a very limited achievement simply to have a report prepared and laid on the table of the House. Unless there is a specific rule written in that the House should consider the report we believe it will have very little practical effect.

It would be useful to have available to us a report on the review and workings of the Bill. I hope the Minister does not give me the answer which he gave in relation to our last amendment that it amounts to excessive use of parliamentary procedures. I do not go along with that. This House is here to be used to the greatest possible extent. There are many complaints — and I have often heard them coming from the now empty benches of the Progressive Democrats — that we do not use the House fully. We wonder where they are now. They are probably gone looking for Deputy McDowell to come back and lecture us.

We are all agreed that this is incredibly important legislation. We are all agreed on the principle that it is important that as a House of Parliament we should be involved in its workability and future. I am extremely anxious that the report of the Attorney General will not simply be circulated, left sitting on a shelf and available for individual consideration, but will be in this House to be debated within whatever period is appropriately decided.

Just as in the divorce referendum debate speakers prefaced their remarks by saying: "Speaking as a happily married man", in this House you would almost have to preface your remarks by saying: "Now as a full time TD" given the——

Look for the vigilance elsewhere.

Speaking as a full time TD I welcome the Minister's response. The Labour Party amendment, No. 19, suffices for what is required here in that if the written report is furnished to the Houses of the Oireachtas there are procedures and Standing Orders in relation to the running of the affairs of this House and urgent matters can be dealt with either by way of bringing in a motion for Private Members' time or by acting under Standing Order No. 30. There are adequate opportunities. What is important is that the report be furnished to the Members of the House who will have the opportunity of considering it in detail and be in a position to form judgments. There is no doubt that there will be many people outside this House who will be very interested in considering the details of the report which will be furnished and a certain length of time would be necessary.

Deputy McCartan is obviously not particularly worried in relation to the 14 days, as long as there is a discussion. I believe that there is ample opportunity under the rules of the House in relation to parties that have rights in this House to have such a discussion. I can assure Deputy McCartan that that discussion would take place, certainly as far as I am concerned. The procedures are there and what is important is that the report be furnished and furnished on an annual basis. That would put an obligation on all persons involved in this procedure and there would be many people, in the Garda Síochána, the Office of the Attorney General and the Department of Justice, concerned. The report would be furnished, would be studied in detail and considered by this House. I am happy with the Minister's acceptance of the general tenor of the amendment and we can at this stage withdraw the amendment and proceed.

I see that the statutory PD Deputy has arrived.

He would be considered a sound man.

The Deputy could have said statuesque.

As an almost full time TD, I can say that I should like——

Does that mean that the Deputy is only half a Member?

I am now as fortunate as Deputy McDowell. I took the precaution of retiring from any State prosecution before I took up my appointment in the Dáil.

Especially in the Deputy's constituency.

I should like to thank the Minister for his very generous consideration of the amendments put forward and compliment him on his very sound response to them by indicating that he will meet the spirit of the amendments in the best possible way and with the aid of his very competent drafting team.

I take some exception to the case put forward by Deputy McCartan in relation to the compulsory imposition on this House of the consideration of the report. While I am not too experienced with the procedures of the House, I am aware that the method of laying reports before the House, giving the House an option to take them up, is the generally preferred practice of the House. It succeeds time and again in legislation. I see no reason for a departure from the preferred practice of the House in any proposed reporting procedure with regard to this Bill. The House at all times should be governed by democratic motivation. For the legislators at this stage to tie the hands of the House in relation to a set of circumstances which might prevail in 12 months' time or at any subsequent reporting stage would be detrimental to the democratic basis of this House. I should like to think that that democratic basis would be preserved by whatever composite amendments the Minister may bring in and——

All things beheld.

——that they should incorporate that optional facility the House has always enjoyed. I am always impressed by the manner in which this House responds to the democratic concerns of the day. For that purpose, I should think that the Minister is taking a quite adequate and appropriate approach.

Is the amendment withdrawn?

I should like to hear from the Minister.

Bearing in mind what was said by Deputy Spring and having regard to the fact that the Bill is due to expire after 12 months unless both Houses pass a resolution to the contrary before then, Deputy McCartan, I am sure, will be satisfied to know that there will be an ample chance to have a debate in the House on the matter.

I would be happy to have that in the first year, depending on what happens on Report Stage. I consider the annual basis important. I take the points that are being made but, despite the best procedure and will in the House, let me instance a very important Bill, a report relating to the Ombudsman's Office, which has not been in any way ventilated or discussed in this House since its publication. That is a cause of concern to The Workers' Party. It is clearly a very important matter with which this House should be concerned but, because of a disinclination or whatever, the rules and procedures are not adequate for such a matter to be discussed should elements of the Opposition want to discuss it.

For that reason I would ask the Minister to indicate whether he considers it an important aspect of the principles with which he is agreeable that the House should, in view of the very particular attention we are giving to this whole area of extradition, have ample opportunity to discuss it. We have all agreed that this is extraordinary legislation, that it is an extraordinarily important area of the law and that it is important that there would be parliamentary involvement as much as possible. It appears that within 12 months we shall have a major debate on how the Bill has worked within the next 12 months. Deputy O'Malley made the point earlier that it just does not end there. It will be, after 12 months, a permanent piece of our legislation. I would be happy and anxious to see that we would not just have a debate at the end of 12 months, but on an annual basis thereafter.

I suggest that Deputy McCartan might wait until he sees the wording of the amendment which I have put down for Report Stage and take the matter up then.

I intend to do so. However, I want some indication at this stage as to whether the Minister agrees with the principles, in general.

If a report is available to both Houses of the Oireachtas, it is a very easy matter to organise a debate on such a report.

Would it simply be laid aside as in the case of the Ombudsman's report?

One cannot compare the Ombudsman's report with what we are talking about here.

May I have an indication from the Deputy as to how his amendment stands?

We shall await Report Stage.

Amendment, by leave, withdrawn.

There was one other matter. We are left with one final amendment. I meant to make some reference to this before I sat down.

To what amendment is the Deputy referring?

To amendment No. 19. I accept entirely your indication to me, a Cheann Comhairle, that the matter has been ruled out of order.

I must dispose of section 3.

Section 3 agreed to.

The amendment to which the Deputy referred, No. 19, in the names of Deputies Mac Giolla, De Rossa, Sherlock and McCartan is out of order. It may not be adverted to at all.

May I make one small observation?

Amendment No. 19 not moved.

Amendment No. 20 in the name of Deputy Seán Barrett has been discussed already. Deputy McCartan, please, the Chair is ruling and the Deputy may not interrupt the Chair, it is completely disorderly.

It is not disorderly.

Amendment No. 20 not moved.
Section 4 agreed to.

Here I am wondering about amendment No. 21. It is stipulated that this amendment shall be taken with sections 5 and 6 in accordance with the order of the House earlier. Did Deputy Birmingham give me some indication that he wished to have it taken now?

I thought it was being taken and attempted to move it earlier with the amendments dealing with annual reports. It is obviously covered by the Minister's undertaking to come back on Report Stage and we are happy with that.

Amendments Nos. 21 and 23 not moved.

We now come to amendment No. 23 in the names of Deputies O'Malley, Harney and McDowell.

The report of the Attorney General as provided for in section 5——

We have dealt with that.

That comes from not being here.

I am here more often than the Tánaiste.

The amendment was discussed with amendment No. 18.

Amendment No. 23 not moved.
Question proposed: "That section 5 stand part of the Bill."

Can the Minister tell us whether the House may take it for granted that apart from the regular report to the Government for which the section provides, the Attorney General in the course of the year will report informally to the Government whenever he thinks fit about how the Act is working? I would like the Minister to assure the House——

The trouble is he will be reporting by the day.

——that the Attorney General in the course of his ordinary duties will naturally tell the Government if he is encountering any unusual difficulty or unsatisfactory circumstances in the discharge of his functions under this Act.

I agree with Deputy Kelly.

Can the Minister for Justice clarify whether he received a written opinion and written directions from the Attorney General in relation to this Bill?

The Deputy should know full well that in the preparation of any legislation there is full consultation between the officials of the Department of Justice and the Attorney General's office.

Was a full written report submitted to the Minister for Justice by the Attorney General?

I am satisfied that everything that should have been done in the course of the preparation of this legislation was done.

Question put and agreed to.
Section 6 agreed to.
Title agreed to.
Bill Reported with amendments.