Amendments Nos. 1 and 4 will be taken together by agreement. I indicate that the page and line references in this list of amendments are in accordance with the text of the Bill as initiated.
Extradition (Amendment) Bill, 1987: Report Stage.
I move amendment No. 1:
In page 2, line 14, to delete "not".
We seek in this first amendment to delete from page 2, line 14 the word "not" which would in effect force the Attorney General to give a direction for a warrant to be endorsed. The manner in which this section of the Bill is phrased is such that we have a triple negative so convoluted that it is almost impossible to understand what the Attorney General is supposed to do. Our amendment seeks to force the Attorney General to give a directive that a warrant shall be endorsed rather than forcing a warrant to be endorsed if the Attorney General does not give such a direction. In other words, we are seeking to give the Attorney General a positive power in relation to the endorsing of warrants.
The effect of this amendment, apart from making more clear what we are trying to do, would be to force the Attorney General to see all such warrants. No warrant could be endorsed for execution unless the Attorney General had so directed. He would have to have seen and examined the warrant and the sufficiency of evidence. I think this is a far more postitve safeguard than what currently exists in the Bill as amended in Committee. There was a great deal of dispute on Committee Stage of this Bill as to whether the Attorney General is compelled even to see all the warrants. The amendment to that effect proposed by Deputy Blaney last evening was withdrawn because the Government said they would look at it on Report Stage. However, I see no amendment from the Government that would compel the Attorney General to examine all the warrants. The effect of our amendment, if accepted, would be to have to require that where an extradition was to proceed and a warrant was to be endorsed in the extradition of a citizen from this country, the Attorney General would have to have directed that that warrant be endorsed. Therefore, he would obviously have to have examined the sufficiency of evidence. It is a safeguard that currently does not exist in this Bill. Although the Bill is to go out of date in 12 months' time it is well that we have a Bill, limited and unworkable though it may be, and we should try to improve it now on this Report Stage and make it as practical and positive as possible. I ask the Government to accept the amendment.
I am opposed to this amendment. Throughout this debate we have been talking about the fact that a fine line must be drawn and a careful balance must be struck between our anxiety to ensure safeguards and our determination to provide a workable system of extradition. The effect of this amendment would be to move that line, to shift the balance against effective extradition. In those circumstances it is quite unacceptable to us.
I have to repeat that I find it extraordinary that a party who have made such play of the fact that they are so committed to the Anglo-Irish process should once again, even at this late stage of the debate, seek to make extradition more difficult. We have been concerned throughout the debate lest even the quite limited measures that are contemplated should have the effect of impeding effective extradition. We think we have made some progress in the changes we have secured on the Committee Stage and we are not going to see the ground we have gained set at naught by this amendment. We oppose the amendment.
I am utterly at a loss to know what Fine Gael are doing in the debate on this Bill, point for point, time and again, unless they have one single objective and that is in no way to cause the slightest suggestion that whatever might happen in this House would interrupt their lazy occupancy of the benches they have lounged about in here since February this year. Throughout the debate relating to this proposal the Government have made it absolutely clear that in their interpretation of the section as it is, the Attorney General has, will and must have an active role and be involved in every application that comes before the courts. We asked the Government to consider making an explicit provision in the Bill. Deputy Blaney withdrew his amendment on the basis that they would look at it. He has put back his amendment because the Government have not put forward an amendment of theirs that might suit us. The PDs' amendment because of the removal of the single word "not" will make the matter clear, certainly to my satisfaction. It will have absolutely no effect beyond satisfying us that what the Government say is there by implication will then with no shadow of doubt be there explicitly.
What do the people over here say in response to it. That is something that will not have a lot of effect on the workings of the section as now being interpreted as something that is going to make extradition more difficult and consequently must be opposed. It is the height of cynicism. I am at a loss to know what twists and turns Fine Gael are going to take in their efforts to see that this Government are not discommoded in any way or dislodged from their current position.
The debate on this Bill is about safeguards. We are trying to improve measures very correctly brought before this House by the Government to safeguard the position of an innocent person. We are all appalled by Enniskillen and all the other atrocities and we are all anxious to see that a person who is rightly wanted in another country for a crime he or she may rightly, wrongly, or whatever way, have commited is sent there, but let us address ourselves to what, we are talking about in the Bill, that is, introducing a working system that will safeguard the position of persons who are innocent and deserve the protection of our laws.
Fine Gael should get off the high horse of law and order and disregard for the position of a person who might innocently be caught up in this procedure and look at what we are trying to do in this House which is to introduce an effective piece of legislation that offers a degree of safeguard. Amendment No. 1 makes no difference, good, bad or the other, on the workings of extradition and ill becomes any member of Fine Gael or anyone in this House to stand up and suggest otherwise.
I would have wished that the institution of the Attorney General would not have been involved in the extradition procedure here. The House has determined that the Attorney General is to be involved in that procedure and, therefore, it behoves us to make it as clear and as simple an operation as possible. Amendments Nos. 1 and 4 do not change the basic thrust of the Bill or any of the basic measures. They revert the negative-positive situation in such a way that it makes it more obvious, more clear and more straightforward. The amendments do not change the principle of the measure in any way and consequently we support them. We suggest for ease of operation of the Bill, such as it is, that these amendments should be accepted.
This Bill is very deliberately framed as it is. The purpose is to ensure that the Attorney General need not certify to court if it is not necessary. We are happy that the Attorney General must see and examine all warrants but need only notify to court if he is of the opinion that it is necessary. The effect of the amendments would be to remove the obligation that rests on the Attorney General under section 44B as it stands to give a direction where he is not of the opinion that there is a clear intention to proceed and that such intention is founded on the existence of sufficient evidence. The Government consider it vital that there should be a clear statutory duty on the Attorney General to give a direction in every case where he is not of such an opinion. Furthermore, section 44B as it stands clearly imports a requirement that every warrant which is received by the Garda Commissioner must be referred to the Attorney General. As the provision stands, if all warrants are not referred to the Attorney General the duty which the section imposes on the Attorney General to give a direction unless he is of opinion etc., would not be fulfilled. For these reasons I cannot accept these amendments.
I listened to the reasons the Minister read out and he could say exactly the opposite with the same conviction. They were not reasons at all. The Government have to justify the way in which section 44A, 44B and 44C are drafted. I do not have to justify it and Members of the House do not have to justify it. The normal procedure is if someone is going to certify something to allow something to happen that is what you say. You say the Attorney General or anybody else will certify if he is of opinion that such and such is the case. However, for almost devious legal reasons — I am not necessarily saying in this instance for devious political reasons — everything is stood on its head. When I first read this I thought it was a case of double negatives but then I realised that it was not because double negatives would cancel one another out. This is a case of treble negatives. The Minister said "The Attorney General is required to give a direction when he is not of the opinion ..." the obvious thing is to give it when he is of the opinion.
That is the way legislation has always been drafted here and in other countries. It is the way that makes common sense. In legal terms at least, there is some surreptitious kind of semi-hidden reason for putting it in this obscure way and standing normal English and procedure on its head. That lies in the fact that the Government do not want the certificate to be given out in a case where somebody is brought forward. They want a non-certificate to exist and they hope in that way to prevent the court reviewing a non-certificate as opposed to a certificate because it is more difficult for either the defendant concerned, or the court to whom he might go, to inquire into the propriety or otherwise of a non-existent thing rather than an existent thing. That problem could be got over very simply by taking out the word "not" and turning it around and saying "The Attorney General will give a certificate if he is of opinion ...". The consequential word is that it may be given "if" rather than shall be given "unless" because the word "unless" is, of course, the third part of the negative.
I read this many times before I understood what was going on here. It was very difficult to see what, in the name of God, was going on. It is a warped way of doing things. It is done to try to bring across the administrative aspect of this as opposed to the judicial aspect in order to cod people into thinking that the examination of this matter by the Attorney General is not a judicial act.
I think I can say with confidence that the courts will always look, in the case of convoluted drafting of this kind, at what is the real intention. They are not going to be put off by the words being turned around backwards and everything being done backwards. They are going to look at what is the real intention. They will construe this as if it were properly drafted rather than drafted in this treble negative fashion, and they will assess what its real significance is in terms of judicial or administrative activity. I do not think the Government really achieve anything by turning everything around on its head in the strange peculiar way that they do.
What the Minister said in support of what is here could equally be said if he left out the negatives and changed them to positives in favour of the ordinary commonsense way of doing things. He made absolutely no argument whatever that it should be this way. If he were going to argue why it is this way and why he wants to keep it this way, he would have said: "We want to try to conceal the real meaning of what we are at, we want to make it administrative, we are insisting on administrative actions and we are staying away from the judicial domain." This is the basic dilemma the Government have in this regard in this Bill. If, as they say, it is only administrative and it is, therefore, a kind of rubber stamp arrangement, there is no safeguard in it. On the other hand, if there is a safeguard it has to be a judicial determination. If it is a judicial determination, as the Government well know, they are in all kinds of difficulties because it will be queried very heavily constitutionally.
Putting it the way Deputy Harney and I propose it is the normal way. What the Minister is doing is abnormal and ridiculous. Putting it our way puts an obligation on the Attorney General to look at the warrant. It puts an obligation on the Garda authorities, and others, who wish to execute it to submit it to him. If it is drafted the way I suggest, with the words "not" and "unless" deleted it has to be given to him because he has to positively give a certificate or a direction but in the way the Minister has drafted this provision it does not have to be given to him.
The Taoiseach and Deputy Kelly argue that it would be flying in the face of what is intended and might in itself be unconstitutional if in any case it was not submitted to him, but who is ever going to know? If the Government want the Attorney General, as they claim, to look at these why not put in a provision that he has to look at them? He is under no obligation to look at them and the Garda authorities are under no obligation to submit them to him. There is a presumption in section 44C that not alone was this direction not given but that it was not required to be given. In other words, there is a presumption that has to be rebutted by the defendant that the Attorney General was not even required to look at it and give a direction.
That is ridiculous and I am afraid that the courts will have to spend a lot of time and words asking why this almost perverted form of drafting is in the Bill. That problem would be overcome by two very simple amendments: taking the word "not" out of section 44A and the word "unless" out of section 44B. We would be back to normal if those negatives were taken out. I do not think anybody can complain about that. It makes commonsense and ensures that the safeguard will operate. The Attorney General will have to look at all warrants because they cannot be endorsed unless he has approved of their endorsement, rather than having it as it is now when nobody need ever know whether the case was submitted to him and when there is no statutory obligation on the Commissioner, or anybody else, to submit it to him. That is farcical if the whole thing is being brought in as a safeguard.
I should like to draw the attention of the House to the fact that if Deputy O'Malley's argument about this is correct — it is true that the Bill does not specifically require this in words, though the implication is clear enough — and there is no necessity to give the Attorney General an opportunity to look at one of these warrants, the same seems to be true of the Minister who is referred to in section 44 (1) of the 1965 Act. I agree that it is hard to deal with these three different measures abreast. Section 44 (1) states:
A warrant shall not be endorsed for execution under this part if the Minister or the High Court, on the question being referred to the court by the Minister, directs....
I do not think there is anything which requires that the warrant should ever be submitted to a Minister. If the argument is that it is possible to leave the Attorney General out of the case altogether and, so to speak, hoodwink him into thinking there is no such thing as a warrant travelling around the place, it equally applies to the Minister. If there is an imperfection in regard to the Attorney General in the Bill, it equally applies to the Minister.
Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 78; Níl, 27.
Tá
- Abbott, Henry.
- Ahern, Bertie.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Matthew.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John.
- Burke, Ray.
- Byrne, Hugh.
- Calleary, Seán.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Mary T.
- Cowen, Brian.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Doherty, Seán.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam.
- Fitzpatrick, Dermott.
- Flood, Chris.
- Flynn, Pádraig.
- Foley, Denis.
- Gallagher, Denis.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Haughey, Charles J.
- Hilliard, Colm Michael.
- Hyland, Liam.
- Jacob, Joe.
- Kirk, Séamus.
- Ahern, Dermot.
- Ahern, Michael.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lynch, Michael.
- Lyons, Denis.
- McCarthy, Seán.
- McCreevy, Charlie.
- MacSharry, Ray.
- Mooney, Mary.
- Morley, P.J.
- Moynihan, Donal.
- Nolan, M.J.
- Noonan, Michael J.
- (Limerick West).
- O'Dea, William Gerard.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Rourke, Mary.
- Power, Paddy.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Swift, Brian.
- Treacy, Noel.
- Tunney, Jim.
- Walsh, Joe.
- Walsh, Seán.
- Wilson, John P.
- Woods, Michael.
- Wright, G. V.
Níl
- Bell, Michael.
- Blaney, Neil Terence.
- Clohessy, Peadar.
- Colley, Anne.
- De Rossa, Proinsias.
- Desmond, Barry.
- Gibbons, Martin Patrick.
- Gregory, Tony.
- Harney, Mary.
- Higgins, Michael D.
- Howlin, Brendan.
- Kavanagh, Liam.
- Keating, Michael.
- Kennedy, Geraldine.
- McCartan, Pat.
- McCoy, John S.
- Mac Giolla, Tomás.
- Molloy, Robert.
- O'Malley, Desmond J.
- O'Malley, Pat.
- Pattison, Séamus.
- Quill, Máirín.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Wyse, Pearse.
Tellers: Tá, Deputies V. Brady and Browne; Níl, Deputies Harney and Kennedy.
Question declared carried.
Debate adjourned.