Dáil Éireann debate -
Wednesday, 7 Dec 1988

Vol. 385 No. 3

Private Member's Business. - Extradition Act, 1965 (Part II) Draft Orders: Motion.

Minister for Foreign Affairs (Mr. Lenihan)

I move:

That Dáil Éireann approves the draft Order applying Part II of the Extradition Act, 1965 to Australia, entitled Extradition Act, 1965 (Part II) (No. 24) Order, 1988.

I propose to deal together with the three motions on the Order Paper relating to the Extradition Act. As many of the aspects involved are technical, I will be glad when replying to deal with any problems raised by Deputies.

Although the three motions relate to four different international instruments they all concern the same subject matter, namely, extradition. Similarly, the purpose of each of the three motions is to facilitate extradition under Part II of the Extradition Act, 1965, and so enable Ireland to act in accordance with its international obligations. In the course of my address I will deal with each draft order and the relevant international instrument in turn.

I turn first to the motion dealing with the European Convention on Extradition. This motion is one of a number of measures which are designed to enable Ireland to comply fully with its international obligations under the European Convention on Extradition, 1957. The European Convention on Extradition is a multilateral Convention, which was drawn up under the auspices of the Council of Europe and was opened for signature by its member states in Paris in 1957.

Ireland signed and ratified the convention on 2 May 1966 and it entered into force in respect of Ireland on 31 July 1966. All of the 21 member states of the Council of Europe are entitled to become parties to the Convention, together with any other state which the Committee of Ministers of the Council of Europe may also invite to become a party. To date, 16 other member states of the Council of Europe and two non-members — Israel and Finland — are parties to the Convention. Deputies should note that Britain is not a party to this Convention.

I should now like to explain why, having being in operation for over 20 years in this country, this House is now being asked to concern itself with the European Convention on Extradition. It arises as a consequence of a recent Supreme Court decision in the Gilliland case. The Attorney General has advised that a charge on public funds within the meaning of Article 29 of the Constitution would arise in every case of the State being requested under the Convention to extradite the person sought.

No motion approving the terms of the European Convention on Extradition was brought to this House prior to its ratification by Ireland in 1966, as the provision dealing with expenses, Article 24, was not considered at that time to come within the ambit of Article 29 of the Constitution. Consequently, in the event of a court challenge now, Ireland's ratification in 1966 and subsequent implementing orders might well be declared invalid under domestic law unless we clear up this impression which has arisen as a result of the Gilliland case. We must make the matter quite clear through ratification by the House and the subsequent making of an order by the House in regard to this Convention. This was not done in 1966 on the basis that the constitutional provision did not apply. It was subsequently held in the Gilliland case that it did apply.

In order to rectify this situation and to allow Ireland to comply with the international obligations it has already covenanted to undertake by its earlier ratification, it was necessary, having got the approval of Dáil Éireann to the terms of the Convention on 29 June 1988, to deposit a new instrument of ratification with the Secretary General of the Council of Europe. This was done on 12 July 1988. What is now required is to confirm that ratification by a specific order of the House so as to clear up this matter of practice, and implementation of the convention that has operated since 1966.

I do not propose here to go through the various Articles in the Convention, which are reflected in the Extradition Act. I would, however, draw the attention of Deputies to the considerable safeguards for the individual contained in the Convention. Under Article 10, extradition for a political offence or an offence connected with a political offence is not permitted. In addition, if the requested State has substantial grounds for believing that extradition has been requested for the purpose of prosecuting or punishing the person on account of his race, religion, nationality or political opinion, or that the person's position may be prejudiced for any of these reasons, extradition must be refused. This of course is reflected in the provisions in section 11 of the Extradition Act, 1965, and provides what is considered to be appropriate protection for individuals who might be potential victims in these circumstances. Traditionally, extradition is refused for military offences, nor will extradition be granted for fiscal offences.

Consequently, Dáil Éireann is today being asked to approve the draft order before it which implements the act of ratification, the purpose of which is to allow extradition to take place between Ireland and the other 18 contracting parties to the European Convention on Extradition, 1957, as listed in the draft order before the House. I commend the draft order to the House.

I now turn to deal with the draft order before the House which concerns the Extradition Treaty between Ireland and Australia.

This treaty, which was signed in Dublin on 2 September 1985, concerns extradition between Ireland and Austrialia. It is a bilateral treaty and will come into force once each party has notified the other that they have completed all their necessary domestic requirements.

The motion before the House today is part of that process of giving the treaty legal effect in this country. This motion requests Dáil Éireann to approve the terms of a draft Government order applying Part II of the Extradition Act, 1965, to Australia.

The object of this treaty is to facilitate and make more effective the co-operation between Ireland and Australia in the suppression of crime. It sets down very clearly and precisely the circumstances under which extradition may take place, the procedures which must be followed, the documents required and the various other matters to be taken into account. The treaty provides a detailed, concise and clear procedure for the operation of extradition between Ireland and Australia while also seeking to protect the rights of the individual sought.

The third resolution before the House this evening deals with the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970, and the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971. I propose to deal with both of the motions relating to the Hague and Montreal Hijacking Conventions together since they deal with different aspects of the same topics.

These conventions were both concluded after lengthy International Conferences on Air Law, which were held at the beginning of the seventies in an attempt to deal with the growing terrorist threat to the safety of aviation. The occurrence of terrorist acts leading to potential or actual loss of life were seen as a threat to the safety of civil aviation causing great concern throughout the world at that time, and it is still the case. The object of the conferences and the conventions that were negotiated and adopted was to provide an international regime to deal with such unlawful acts against the safety of civil aviation no matter where they occur and particularly to provide appropriate international measures for the punishment of offenders. These conventions are still of great relevance today.

Ireland acceded to the Hague Convention on 24 November 1975 and to the Montreal Convention on 12 October 1976. To date there are 137 other States also parties to both conventions.

The 1973 and 1975 Air Navigation and Transport Acts give effect to these conventions in Irish law. The offences created in these conventions are therefore offences under Irish law also as part of the international legal regime created by these conventions.

Ireland, as a party of these conventions, must be in a position to comply with the international obligations which they impose. Consequently, it is necessary to apply Part II of the Extradition Act, 1965, to those states, parties to the Hague and Montreal Conventions, with whom we have no other extradition arrangements.

Since Ireland's accession to these conventions a number of these orders have been made. The draft order before the House today applies Part II of the Extradition Act, 1965, not only to 46 countries which recently became parties to the convention, but the draft in effect consolidates into one order both conventions and all the existing parties to them.

In view of the importance of these conventions and to enable Ireland to comply fully with its obligations in repect of these additional countries I commend this draft order to the House.

Mr. Barry

Neither I nor my party have any problem in accepting the Minister's recommendation to the House to pass these conventions speedily. By a peculiar throw of the political dice, I had a personal involvement in all four conventions in that I was where the Minister is now when the Gilliland and Trimbole cases arose and I was Minister for Transport when the two hijacking conventions were acceded to. In regard to the Gilliland and Trimbole cases, I have a more intimate knowledge of those than I would wish to have because they caused quite a few problems at the time. The other conventions are a very necessary part of the worldwide fight against terrorism. I thought at the time that it was important that we accede to those conventions and I have no problem with them now that we are bringing the matter up to date.

I heard today that the Belgian Prime Minister has made a suggestion that there should be a European Extradition Act covering the 12 member states of the European Community. There should be some measure, either a treaty or an Act, in which we could get common ground among the 12 on extradition. I do not know how practical that is or whether it is legally, politically or in any other way possible; but if it has the effect of avoiding the unseemly wrangling that took place between the United Kingdom, Belgium and Ireland in the last fortnight then it would be very good. I hope the Minister for Foreign Affairs will consider this matter and see if we can take extradition, which, in my view and that of my party is a very necessary part of the fight against terrorism, off the front pages of newspapers and have it dealt with on a purely legal Europewide basis. I am quite happy to accept the Minister's recommendation that the House adopt these conventions.

Miss Kennedy

I also support the Minister's recommendation that we accept the three motions before us tonight. I would like to make two points. Firstly, it is noteworthy and not merely coincidental that we are considering these matters one week after Mrs. Thatcher's imprudent and unhelpful remarks in the House of Commons regarding Ireland's commitment to the due process of law. The legislative care in regard to these treaties cannot be misplaced by this House because they demonstrate to the world at large, if not to the British, that we as a State have taken all the steps required to ensure proper extradition arrangements between friendly states.

Although we are considering those treaties that come under Part II of the 1965 Act and not the arrangements with Britain that come under Part III of that Act, the Tánaiste and Minister for Foreign Affairs would do well to point out to his British counterpart that the Dáil has taken the trouble to ensure that whatever loopholes may exist in regard to extradition procedures are being closed and that the law on extradition is being copperfastened tonight.

An Ceann Comhairle

I hesitate to interrupt the Deputy but the treaties do not refer to Britain at all.

Mr. M. Higgins

In fairness to my colleague, Deputy Kennedy, her point was that the requirements in Part II of the 1965 Act are being vindicated this evening whereas the difficulties have arisen in relation to Part III of that Act.

On behalf of the Labour Party I would like to say that I share the sentiments that have been expressed so far. I see in these three instruments that are before us this evening the execution of basic agreements that have been entered into by Ireland. In one case there is a bilateral agreement with Australia. What we are really doing is giving effect to the understandable and negotiated co-operation to further goodwill between two countries that look upon each other as having favourable future relationships. In the other cases it is singular that we are executing instruments to give effect to our signature and ratification of conventions that have been agreed within the ambit of international fora and our obligations within the international community. I very much agree with what has been said so far and, on behalf of my party, I see absolutely no difficulty with it.

I would like to make two points in terms of the European Convention. The point has been made that we are extending the 1965 Act to take account of our new obligations. That is a point well made to those who suggest that we have difficulty in using the 1965 Act. Deputy Kennedy is absolutely correct in stating that. It strikes me that, in relation to the legislation of other countries and the process by which countries bring their laws up to date, in an international context the more signatories one has and the more transcendence there is beyond the difficulties of individual countries in a bilateral relationship, the better prospect and the greater ease there is in having amending and enabling legislation and instruments that execute the obligations. It is as if one ascends to a series of principles governing legitimate relationships between states that cannot be contradicted by possibly temporal or indeed historical, inherited antagonistic relationships of a bilateral kind.

The third instrument with which we are dealing this evening effectively involves our accepting our obligations under The Hague Convention of 1970 and the Montreal Convention of 1971 dealing with hijacking. It is important that we be absolutely foursquare in terms of our obligations.

The last point I make more as a reflection, which is that if international fora seem to be places where instruments relating to issues such as extradition can be considered within a more generous framework then very often it is within these wider frameworks that the principles of legitimacy are more easily accepted. The difficulty precisely at the bilateral level is that questions of the legitimacy of both parties, when one is dealing with a face to face confrontation, frequently create these problems.

Next Saturday we celebrate the Universal Declaration on Human Rights. The worst time for human rights is when they become an object of abuse by one group of nations against another. There has also been enormous abuse of the terms "terrorism", "anti-terrorism", "counter-terrorism" and so on. But what is interesting is that the people who accepted their obligations under treaties of this kind, particularly those signed within the family of nations, knew exactly what it was they were accepting. I am inclined to the view expressed by previous speakers that it would be a good development if perhaps we could shift what are too closely-locked encounters of an antagonistic and often bilateral nature to a wider arena. However, I am not advancing that as a demand or anything of that kind on behalf of my party. I quite agree that any such proposal would have to be taken in the wider context. For example, in the context of the Anglo-Irish Agreement how many of its components would be moved sideways and what would be the total implications?

On behalf of the Labour Party I can say we are pleased to facilitate the Government in the speedy passage of these three instruments here this evening.

Mr. McCartan

The Workers' Party readily support the three proposals of the Minister for Foreign Affairs this evening. It is fortunate, in the immediate aftermath of events of the past few days and the debate that took place here last evening, that we are being afforded the opportunity to talk about extradition in the normal atmosphere in which it should be pursued, developed and discussed at all times. It has been a constant point in any intervention made by The Workers' Party in any of these debates that we must underline the importance of extradition as a normal concept in the everyday administration of justice between states when dealing with fugitives from crime. Unfortunately, in the hysteria of debates in recent times many commentators have strayed from that understanding and concept. For that reason it seems that the issue of extradition must be burdened with a huge degree of confusion, emotion and unreality.

Nothing better illustrates that than an examination of the number of countries that will be affected by the provisions of these instruments being passed here this evening. It should be remembered that we are talking about an overall figure approaching 100 in different arenas. In different legislative measures Ireland has extradition arrangements and agreements with hundreds of countries world-wide. One gains the impression from recent debates that we had an extradition arrangement with one country only. It is worth asking the question of many of these people who sought to argue so trenchantly against extradition to our nearest neighbour, where there is trial by jury available and where there are many safeguards, what is their position when we quite correctly agree to extradite somebody to the more continental-type inquisitorial systems of justice where the notion of jury trial does not exist at all, where all of the procedures of definition require a person to remain in custody, where it is often suggested that the onus shifts the other way onto the defendant to vindicate himself or herself? We are having a reasoned debate in this Chamber this evening which should be the atmosphere prevailing if there is to be any balance struck in this debate on extradition with regard to all of our contracting partners, including our nearest neighbour.

It should also be noted here — a point the Minister made in his contribution— that the United Kingdom was not a party to the European Convention on the Suppression of Terrorism of 1957. That is a remarkable state of affairs. It should be noted that the mother of all parliaments, the jurisdiction that gave us the politically acceptable defence in its original courts and decisions, is not a party to what Europe has been endeavouring to do with regard to extradition since 1957. That is something we should not forget. Indeed, we might well remind those neighbours to enter into the European order of things.

The necessity for the draft treaty instrument before us this evening in regard to Australia illustrates in a small way the somewhat unsatisfactory or haphazard way in which we have tended to deal with extradition. It is a worrying feature. Article 29 is clear in its working. It is inconceivable that it could have been overlooked when our treaty with the United States was being drafted and agreed. Gilliland in the Supreme Court highlighted that deficiency. It was overlooked in the haste with which we brought in the treaty initially to deal with Trimbole and Australia.

I would urge the Minister to consider, in consultation with the Attorney-General and departmental officials, the establishment of a Departmental working group of officials to survey the entirety of our extradition laws and arrangements to ensure there will be no more of these problems lurking there that might surface only at a stage when there is someone sitting in a dock who is being sought abroad. That is not the way in which we should be arranging our extradition affairs, developing them on errors being exposed in a court of law. We should put Departmental resources aside to examine such matters in detail.

In regard to Australia and the agreement with them, my party are concerned that there is not a requirement in the relevant treaty for the establishment of a prima facie case in these courts. It is not a light matter to send somebody to the other side of the hemisphere on extradition. Indeed, the more remote is a country geographically from us, all the greater is the onus on us to ensure that any such extradition is not sought on any half-baked or frivolous ground. While all of these extradition procedures and arrangements are founded on international trust and co-operation nonetheless such onus devolves on the parties to them. Prima facie evidence is a requirement used in some of our international procedures. It is something we should have examined in the Australian context.

The final point I would make in the context of Australia is this. The usual standard rule of thumb — certainly it applies in regard to the United Kingdom, the country to which we extradite most people — is that where an offence carries a minimum prison sentence of six months then we will agree to extradite. I want to pose the following question to the Minister: is it realistic to consider extraditing people for a term of six months? For example, in the Australian agreement it is 12 months. It is my opinion that that is too short a period. If we are to send people so far afield we should be examining a minimum prison term of two years or thereabouts. With remission and good behaviour entitlements, the realistic lock-up time even for a 12 months sentence is very short. Do we achieve anything by sending someone back? Under the treaty where there is an unexpired period of six months of a sentence remaining, a person is liable to be extradited. Should we not look a bit more closely at that and suggest in future agreements a longer period in terms of a warrant which is unexpired, or a greater sentence, if a sentence is to be imposed?

The other treaties are very welcome and they help to illustrate that we as a country recognise extradition as a standard form of inter-State relationships in dealing with fugitive crime. It is obvious that there is a great need for extradition procedures when one looks at crimes involving air strikes. The effectiveness of extradition as a process to move quickly and efficiently is really the only way available to the democratic process to deal with crime. Unless extradition works effectively, because of greater mobility nowadays and increased inter-State crime, we are only fooling ourselves if we think that we are doing something to seriously address the problem.

Minister for Foreign Affairs (Mr. Lenihan)

I thank the House for the manner in which this debate has been conducted. This debate has occurred on the proper level; as has been indicated in the recent exchanges on extradition vis-à-vis Britain and Ireland and Belgium, it is all-important that extradition be placed firmly within a legal framework. The politicisation of extradition and the sensationalism with which it has been treated in the public media particularly in London has lifted the matter out of the correct milieu in which it should be considered. Extradition should be dealt with by way of international treaty or convention and it should be processed through the courts in the countries that agree to a convention or other international agreement.

As Deputy McCartan said, the motions before us are designed to bring the offences concerned within the ambit of three documents which are now being approved by this House. I am glad that Deputy McCartan referred to the fact that Britain is not a party to the part of the extradition law covered in Part II of the Extradition Act, 1965. Part III of that Act relates to the backing of warrants and the execution of warrants between Ireland and Britain. This Act has codified the law as it was since the formation of the State in regard to arrangements between Ireland and Britain.

We are dealing here with Part II of the Act dealing with our multilateral international obligations both with regard to air traffic offences and the other European countries and other countries such as Finland, Israel and now Australia. All of the extradition arrangements with safeguards, that we have entered into with other countries are governed by Part II of the Extradition Act. Over 100 countries are involved in these agreements when we talk about offences relating to air traffic. The various conventions and protocols to which we have subscribed are now incorporated in three documents that relate directly to Part II of the 1965 Extradition Act.

Our amendment to Part III of the Act in relation to our bilateral agreements with Britain was discussed last night. The safeguards we discussed enable our Attorney General to be satisfied before a person can be extradited to Britain or Northern Ireland.

Deputy McCartan referred to sentences. The minimum with regard to the Australian treaty arrangement is 12 months. In practice it is only in serious cases requiring a sterner penalty that a State will apply for extradition. It would not be worth the expense to extradite for that sort of minimal penalty. Countries only apply in very serious cases.

Deputy Barry and some other Deputy raised a question about what Mr. Martens, the Prime Minister of Belgium, said in regard to the Community countries coming together to devise some form of uniform application for extradition. This is a matter which, in view of the recent contretemps, merits examination. We will be examining that aspect because it is evident that, while extradition with all other countries is proceeding smoothly, with the incorporation of these three conventions approved by the Dáil under Part II of the Act, our international position will be clarified and we will do away with any ambiguity or confusion. As we all know, the problems relate to our bilateral arrangements under Part III of the Act and the safeguards we passed last night will be a very positive contribution towards ensuring that the Attorney General will be assured that there is a case to be met.

I welcome any suggestion, such as that made by the Belgian Prime Minister, which further clarifies this issue. I want to reiterate what has been said in this House. I said extradition was essentially a legal matter concerned with the freedom of the individual, interpretation and administration by the courts. This is a civilised exchange between nations. This is part of the world rule of law relating to international order and is fully defensible. There is a lot of wild talk about extradition which ignores the central factor, which is that having extradition arrangements of this kind with other countries is very meaningful because it adds to the corpus of international law designed to ensure a real rule of law between nations. It would be intolerable if each nation was so hidebound that they could not deal with other nations. This needs to be said again. Some of the politicisation and sensationalism, as well as some emotional propaganda, we have seen lately missed the point that extradition arrangements are part of the rule of law between nations and as such are an example of civilised behaviour according to the law between nations. However, that is separate from our bilateral agreement under Part III of the Act of 1965. I cannot put it any clearer than that.

The trouble is that many people do not want to know about these matters. One could try to explain this a dozen times, but one might not get as receptive an audience as one gets in this House. We must all say very clearly what the real distinctions are and we should not have any confusion by labelling, smearing and branding what are highly complex international laws, conventions, rules and regulations designed to facilitate exchanges under the court systems of different countries so that no country can be used as an international refuge for criminals, whether involved in drugs, terrorism, murder or anything else. The international implementation of the rule of law is much to be desired and is welcomed by us.

A Deputy made a very good point when he said that the discussions on extradition in recent days had been conducted mainly through megaphone diplomacy from London. Coming after those discussions, this is the sign of a civilised Parliament dealing with civilised international business in a civilised manner.

Question put and agreed to.

Minister for Foreign Affairs (Mr. Lenihan)

I move:

That Dáil Éireann approves the draft Order applying Part II of the Extradition Act, 1965, to the Contracting Parties to the European Convention on Extradition.

Question put and agreed to.

Minister for Foreign Affairs (Mr. Lenihan)

I move:

That Dáil Éireann approves the draft Order applying Part II of the Extradition Act, 1965, to the Contracting Parties to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation and to the convention for the Suppression of Unlawful Seizure of Aircraft.

Question put and agreed to.