Before the debate was adjourned yesterday evening I had spoken about the extent to which right wing politicians in Britain and Northern Ireland had exploited the fact that there is a loophole in our extradition laws by claiming unfairly that this country is in some way soft on terrorism. I suggested they might usefully take a look at this State's effectiveness in dealing with the problem of terrorism. I expressed the view that, despite the excitement raised in the UK and here by the issue of extradition, it is surprising that there have been so few applications. It is also surprising that the promised annual report on extradition applications has not been published since 1991.
I referred also to the difficulty the public has, a public absolutely opposed to the use of violence for political purposes and who strongly abhors what has been happening on this island in the past 25 years, in understanding how this House could have, in 1986, debated and passed legislation which effectively classifies as a political offence the possession of an automatic weapon. The public also finds it difficult to understand why the Judiciary could have interpreted the laws in such a way as to allow what most decent people would regard as an act of violence or terrorism to be in some way cloaked in respectability by defining it as a political offence.
It seems that what we have inherited in our extradition laws is an approach to the concept of political offences which, while it was legitimate at the time it evolved, is no longer appropriate. I pointed out that the tradition of defining a political offence has a long and honourable history, one initiated by the British, which refers to protecting people who have found themselves over the years working under oppressive regimes of one kind or other — when people who opposed oppressive regimes in their own countries had to take refuge in another state where they were given political asylum.
Times have changed and we now live in an era of deadly international terrorism. The political exemption clause originated at a time when there was less movement of people between states and when travel was more difficult. It originated at a time when it was not possible for a person to plant a bomb and then be on a plane to another country before it exploded, a time when the death penalty was much more common, when court procedures were often primitive and when the rights of the accused received scant attention. It was also a time when there were great variations between the standards of justice available in different countries. Now there are a number of international agreements which, even if not always fully respected, set certain minimum standards for court procedures and the treatment of accused persons. All of these developments, together with the rise of international terrorism, means that a broad definition of a political offence is a luxury we cannot afford if we are serious about protecting our citizens and those of other countries from the murderous activities of paramilitary gangs.
For extradition to work successfully between two countries it must be based on mutual respect for each other's laws and judicial procedures. While the British have been quick to criticise what they regard as shortcomings in our procedures, there has been repeated evidence that their procedures leave much to be desired. In a number of cases warrants have been received with incorrect names or details, or the British authorities have been unable to satisfactorily identify the people sought. There has also been the problem of prejudicial comment in the British media — and in the Ryan case right up to the level of the British Prime Minister — which raise doubts about the ability of a person to receive a fair trial. In the Ellis case the charge on which he was extradited was dropped and a different charge substituted, a move which was in breach of all the normal procedures regarding extradition.
It seems that many of the difficulties which have arisen in regard to the operation of extradition arise not only from the loophole which exists in our legislation, and which we propose to close, but also from the hamfisted way in which the British authorities have operated the extradition procedures, such as they are. Despite these reservations, Democratic Left welcomes this Bill and will not oppose its Second Reading. The Bill will only close off the loophole identified in the 1987 Act and make a number of procedural changes. It does not deal with the broader issues involved in extradition and these need to be looked at again.
I have always believed that many of the problems about extradition could be avoided if we had a requirement that the authorities seeking extradition would have to establish a prima facie case in an Irish court against the person sought. This would not require a full hearing with witnesses giving evidence in court. It could be done in the same way as persons charged with indictable offences here are dealt with. A book of evidence is produced for a district judge, who has to satisfy himself that the accused person has a case to answer. Why can a similar procedure not be operated in extradition cases? Other countries apply this requirement. Ireland has an extradition treaty with the United States, signed in 1986. Under this treaty a person in this country can be extradited to the US merely on the basis of a valid warrant produced by the US authorities. However, if the Irish authorities wish to seek the extradition of a person from the US it has to effectively establish a prima facie case in an American court.
When the Extradition (European Convention on the Suppression of Terrorism) Act was going through the Dáil in 1986, Fianna Fáil supported the principle that there should be a requirement for a prima facie case. In December 1987, when the Extradition (Amendment) Act was going through the House, the Labour Party, including Deputies Spring, Stagg and Taylor, voted for an amendment tabled by my former colleague, the then Deputy Pat McCartan, which would have required the establishment of a prima facie case. The question has to be asked: why have Fianna Fáil and Labour in Government changed their position in regard to the requirement to establish a prima facie case in court?
A question also arises in regard to the quasi-judicial functions given to the Attorney General under the 1987 Extradition (Amendment) Act. Under the 1987 Act the Attorney General has to satisfy himself in the case of a warrant that there is a clear intention to prosecute or, as the case may be, to continue the prosecution of the person named or described in the warrant concerned for the offence specified and that such intention is founded on the existence of sufficient evidence. This is a quasi-judicial function and I do not consider it to be an appropriate one for the Attorney General. The Attorney General is the law officer of the Government and he is a political appointee. On occasions in the past the Attorney General has been a Member of this House, and there is nothing to prevent this happening again. Therefore, it is inappropriate that an officer who is essentially the legal adviser to the Government and who is a political appointee should have quasi-judicial functions.
The allocation of these functions to the Attorney General was widely criticised in 1987 by, among others, the Labour Party. This issue needs to be looked at again. Because so few extraditions have been sought, the Attorney General has not been called into action very often. However, that could change in the future and there is a clear potential for a conflict of interest between the political and legal roles of the Attorney General. If the Government is determined to resist demands for a prima facie case in an Irish court, there is a case for giving the functions now carried out by the Attorney General to some other figure. Why not create a totally new position — for example, that of judicial examiner or scrutineer of extradition cases? Why not ask the President of the High Court to nominate a High Court judge to carry out the functions now given to the Attorney General? As long as the Attorney General carries out these functions extradition will be more of a political process and less of a judicial one.
This Bill has been published and is being debated against the background of an unprecedented demand for peace and for the terrorist groups to lay down their arms. The initial optimism generated by the Downing Street Declaration has been dissipated somewhat by the continuing campaign of violence by Loyalist and Nationalist paramilitaries. I have never believed that extradition should be used as a bargaining counter in the current peace process. This Bill stands on its own merits and will be needed irrespective of the outcome of the current process. However, its timing may prove to be useful. I hope it will reassure those in Northern Ireland and Britain who may have been concerned that the Government decision to lift the ministerial order under section 31 represented some sort of weakening in the resolve of the people of this State to combat terrorism that this is not the case. I hope it will also deliver a very clear message to Mr. Adams and his colleagues that if they renounce violence there will be a place for them in the democratic process, but that if they continue with their murderous campaign all of the legal and political resources of this State will be used to ensure their defeat.
At the time when concern was expressed about the various cases which exposed the loopholes in the existing extradition procedure many people commented on what was required. One of the commentators at that time was an eminent Senior Counsel, whom I am sure the Ceann Comhairle will not allow me to name in the House because of her elevation to higher office in the meantime. In an article in The Irish Times on 21 April 1990 that Senior Counsel drew attention to the judgment in the Finucane case. I want to quote one or two of the points made in that article which raise issues of a constitutional nature to which the Minister may wish to respond in her reply. She stated:
Also a further issue has emerged from the decision of the Supreme Court in the Finucane case, which was a unanimous decision clarifying the basic principles underlying our extradition law.
She went on to quote a section from Mr. Justice Walsh's judgment in which he stated:
It is thus clear that the use of violence does not in itself take an act out of the political exemption . . .
. . . I am of the opinion that the court cannot draw the inference that it was the intention of the Oireachtas that the provisions relating to the political exemption in the Act of 1965 should not apply to persons charged with politically motivated offences of violence when the object of such offences was to secure the ultimate unity of the country.
Mrs. Robinson, Senior Counsel, commenting on that in the article of April 1990 stated:
This carries the necessary implication that the Supreme Court does not regard the Constitution as it stands as having outlawed or ruled out violence in the pursuit of unification of the country.
That is a serious conclusion to draw from that case. She went on to argue in the article that closing off the extradition loophole and the loophole to which references to political offences gave rise might require not simply legislation but an amendment to our Constitution. In the Article of our Constitution dealing with fundamental rights she expressly recommended that there should be an additional clause along the following lines:
The State shall, as far as practicable, protect the life and property of every person from interference or threat by violence, notwithstanding such violence arises from or is connected with a political motive or object.
That was a very clear recommendation to deal with the ambiguity that exists about what constitutes a political offence and whether violence, as it has been understood on this island for the past 25 years, can be, by any stretch of the imagination, construed as political; that in order to deal with that ambiguity legislation and, perhaps an amendment to the Constitution, is required.
In the context of the discussions taking place on the Downing Street Declaration, particularly as we are now closing off the legislative loophole in the extradition laws, it would be worthwhile to have another examination of this issue. It is unfortunate that because of the historical experience of the people of this country we have inherited an ambiguity as to whether violence is a legitimate means of pursuing a political objective. I take the view — I believe it is shared not only by Members but by the public — that violent means are not a legitimate method of pursuing a political objective. It is not acceptable that in our legal process, our legislation and possibly, as was referred to in that article, in the Constitution, there may be an implication which suggests some legitimacy in pursuing political objectives by violent means. However and wherever this is to be done, whether by legislation as we are doing or in the Constitution, we must ensure that any such ambiguity is clearly addressed.
I intend to table a number of amendments to this Bill on Committee Stage one of which will require the Minister to produce the annual report on extradition within a specified time. Another amendment will seek to give Members an opportunity to express views expressed in the past on the requirement of a prima facie case being presented before a court and the question of whether the Attorney General is the appropriate person to whom applications for extradition should be submitted.