Extradition (Amendment) Bill, 1994: Motion for Recommittal.

I move:

That pursuant to Standing Order 102 the Extradition (Amendment) Bill, 1994 be recommitted in respect of section 1.

Will the Government be opposing the motion?

The Deputy is seeking to have the Bill recommitted in respect of amendments Nos. 1 and 2. That is in order.

I think that is a different version of what the Deputy is proposing.

Is the Deputy seeking recommittal in respect of the amendments or of the section?

I am seeking, under Standing Order 102, to have the whole Bill recommitted.

In that case, the Deputy wishes to amend the motion she has just moved and to seek recommital of the whole Bill?

Is it agreed that the motion be amended? Agreed. It is very unusual.

It is provided for under Standing Order 102.

I oppose the motion to recommit the Bill.

The motion is opposed but, in accordance with Standing Order 102, I will allow a brief explanatory statement on the part of the Deputy and a statement by the Minister as to whether the Bill is to be recommitted. I must insist on a brief statement.

This matter is so serious it cannot be reduced to a one page explanation.

I cannot permit a Second Stage speech now.

The matters are very technical. Amendments tabled by my party to section 1 of the Bill on Report Stage this morning have been disallowed because the issues raised in section 1 (2) and (3) did not arise in the proceedings on Committee Stage. However, in the period between Committee and Report Stages there has been an important High Court decision as to the nature and effect of section 3 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, which decision casts section 1 of this Bill in an entirely different light. That is the reason we have tabled this motion.

Subsection (2) and (3) of section 1 deal with the issue of retrospectivity. In this Bill it is proposed, in short, that the new definition of a "political offence" shall not apply retrospectively in some cases but shall apply retrospectively in a number of other cases.

The Bill proposes in section 1 (2) that nobody who has been the subject of a decision under the existing defective statute law on the issue of whether his or her offence is "political", or an offence connected with a political offence, may be extradicted when this Bill becomes law, even though it will provide that offences of that type shall not thereafter be regarded as "political".

In section 1 (3) the provision of the Bill goes even further, to exclude from the new definition of "political offence" any person who is currently the subject of an extradition request under Part II of the 1965 Act, which deals with international extradition.

I regret to interrupt the Deputy but I must point out to her that a brief statement is all that is allowed, not a detailed one.

I am endeavouring to be as brief as I can without being ridiculous. If you would allow me five minutes——

That has already been explained to the Deputy. I am reiterating that explanation and must insist on a brief statement.

On a point of order, how does one define a brief statement?

It does not state "brief" in the relevant Standing Order.

I do not think you can restrict a statement of this importance in this manner.

I resent that, Deputy De Rossa. The Chair will decide at any point in time what is brief.

I was not implying anything. I was simply saying that, in my view, it is not in order to attempt to restrict a statement of this importance.

There is nothing in Standing Orders——

I ask the Deputy to adhere to the ruling of the Chair and keep her contribution brief.

We have wasted time already. I would have been half way though my statement had I been allowed to continue. Section 1 (3) goes on to exclude from the new definition of political offence any person who is currently the subject of an extradition request under Part II of the 1965 Act which deals with international extradition or is the subject matter of a warrant issued and capable of being dealt with under Part III of the 1965 Act. It should be noted that the proposed exclusions are not limited to cases where court proceedings have actually commenced here. They also exclude cases which are at a preliminary stage such as being considered by the Minister under Part II or being vetted as we speak by the Attorney General under the provisions of the 1987 amendment Act.

The effect of section 1 (2) and (3) is to render immune from extradition an unknown number of unidentified persons in respect of an unknown category of serious offences including terrorist offences. The Minister may know the identity of some of these people, the Attorney General may know the identity of others, but the full category cannot be identified because the number of warrants issued, and to which section 1 (3) (b) applies, is incapable of verification.

The proposed provisions are quite arbitrary in their effect. For instance, if two persons are accused or suspected of participating in a terrorist murder in England or Northern Ireland and if one of them has successfully relied on the existing defective legislation which defines a political offence in the courts but the other is first brought to the court after the new Bill becomes law, then it is not only possible but probable that one will be extradited while the other, who might be the ringleader or the moving party in the murder, goes free.

More serious still, by enacting section 1 in its present form, for all we know very serious offences now in the pipeline or on the Attorney General's desk, will result in a failure to extradite. It is because the Minister cannot or will not disclose to this House the identity of all persons affected or the offences for which they are sought. We could be excluding from extradition the murderers at Warrington, Birmingham, Guildford or Bishopsgate.

We cannot possibly know what the actual effect of section 1 will be. We do not know how many warrants would be affected by section 1 (3) (b), nor, indeed, will we be consulted or informed if existing warrants are quietly cancelled in Britain and new ones issued to circumvent that provision. Is that the way to legislate for this very serious matter?

This section will, for instance, have effect in the case of Joseph Magee, a case which was decided between Committee Stage and today. If that decision is not appealed to the Supreme Court, as appears probable, then, although the offence outlined in that case would fall four-square into the First Schedule in this Bill, no action can be taken on the extradition front in respect of it. If other persons are sought in respect of the same killing after the Bill becomes law — there were three people involved in the killing of Sergeant Newman in Derby — they will become liable to extradition while Mr. Magee remains free in Ireland. So this issue is not academic.

As far as the law is concerned, I can see that the Minister has some difficulties. However, I do not see that the provisions before us are necessary or desirable from a constitutional point of view. The case of Sloan and Others v. Culligan decided by the Supreme Court in November 1991 made it clear that it is competent for this Legislature to withdraw the political offence exception from terrorist murders, whether they happened before or after the legislation which changes the definition of political offence. In other words, retrospectivity has already been challenged in the Supreme Court in the Sloan case and has been upheld by that court.

In that case, it was decided that the constitutional prohibition in Article 15.5 on retrospecitve criminalisation of acts did not apply to retrospective divestment of political status for offences in extradition law. Dealing with section 3 of the 1987 Act, with which this Bill also deals, the Supreme Court said:

Section 3 merely makes a statutory amendment to what was a developing jurisdiction concerning the definition of a political offence for the purposes of the Extradition Act, 1965, as amended. I do not create any offence or any infringement of the law in our jurisdiction. The court is satisfied that the provisions of Article 15.5 of the Constitution are an expressed and unambiguous prohibition against the enactment of retrospective laws declaring Acts to be an infringement of the law. It does not contain any general prohibition on retrospection on legislation. Nor can it by any means be interpreted as a general prohibition.

The different question that now arises is whether it is competent for this Legislature to withdraw political status from an offence where the courts have, by reference to a previous defective definition, already ruled that the offence was political.

In Sloan's case, the Supreme Court also considered the issue whether the retrospective effect of section 3 of the 1987 Act infringed constitutional rights other than those expressly protected by the Constitution. The Supreme Court rejected the argument that it did on the basis that the:

right of the plaintiff as of every other citizen concerning the question of his delivery into another state for the purpose of reserving a sentence lawfully imposed on him in that State, was, the court is satisfied, a right at any time to proper, due and fair procedures concerning an investigation of the validity of the warrant in respect of which he is delivered, and to a fair and proper and due inquiry into the protections applicable in law, within the State at the time of the application for its delivery, which may afford him a protection arising from the concept of a political offence...

In short, the court held that our rights amount to an entitlement of due application of the law as it exists for the time being in relation to the political offence to extradition. If the issue in such "political cases" is simply whether the law for the time being allows or prohibits extradition, then one must ask why it is now argued that once that issue has been resolved by reference to one statutory definition, it cannot be subsequently reopened by reference to another, and later, statutory definition.

While there may be an argument that the Legislature cannot retrospectively alter the outcome of a court case without infringing the constitutional separation of powers along the lines of the decision in the Sinn Féin funds case, there is no constitutional principle which requires the law to discriminate between the liabilities of those who successfully relied on the provisions of a superseded statute and the liabilities of those who were never so tested.

The Deputy has made her point and must conclude.

I have two more points to make.

I cannot allow a long statement.

There is nothing in Standing Orders to prevent me——

The motion to recommit is a narrow procedural matter. The Deputy has made her case. I ask her to conclude.

I am concluding.

If the provisions of section 1 (2)——

The Deputy has been given a lot of latitude. I propose to call the Minister forthwith.

Why is the Chair attempting to muzzle the Deputy?

I am calling the Minister.

This Bill is defective and we are signalling that is so. If the provisions of section 1 (2) are constitutionally necessary today, why were they not necessary in 1987 when the definition of political offence——

This explanatory statement cannot be used as a vehicle to discuss something which has been ruled out of order. That is precisely what is happening. I am calling the Minister.

It is not. I am perfectly entitled under Standing Orders to explain my motion. The Chair is being unfair. I am permitted under the Standing Order—

The Deputy must conclude her brief statement. It is the traditional way to deal with such matters.

I know I am in order.

I propose to call the Minister.

The Minister knows I am in order also. The Standing Order permits me to finish my statement.

Please resume your seat. I have ruled on the issue. The Deputy has been given a lot of latitude, perhaps more than the Chair should have allowed. I call on the Minister. We must resume the business.

The Chair should allow the Deputy to conclude her statement.

I am in order. The Standing Order does not say it has to be a brief statement. It is a motion which has to be moved and explained.

The Deputy should conclude what she has to say and resume her seat in order that we may continue the business.

The Deputy is concluding.

In our view——

Briefly, Deputy. I will call the Minister. I will not allow this prolonged statement.

The High Court has ruled on a case between Committee Stage and now which is of vital importance to the implementation of this Bill. It is only because we support the legislation that we are putting forward this to clarify section 1. A section in the 1987 Act allowed for retrospectively and a challenge to that provision has been upheld.

I ask the Deputy to resume her seat.

This is outrageous.

The Minister to respond.

This is why we make bad law in this House.

Let it be on the Chair's head for not allowing me to continue.

This is why law is passed that does not stand up.

Another Bill will be back in the Supreme Court.

This Bill makes it quite clear, that, when it comes into force, murder can never be a political offence. The Bill will apply generally to offences committed before it comes into operation. However, it will not apply retrospectively to a case where the matter has come before the court and the court has decided that in the particular circumstances in question the offence was a political one. This matter is dealt with by section 1 (2).

In considering legislation in this House I do not think it would be appropriate for us to discuss how the Bill will affect the case of a named individual, particularly when that case may appear before the Supreme Court in the future. Subsection (2) was not drafted with any particular case in mind. It was included because it was considered that serious constitutional issues would be raised of the Legislature in introducing a Bill which proported to directly overrule specific decisions of the High Court or Supreme Court. I do not consider that it is appropriate under the Constitution for the Legislature to intervene with the intent to deprive a person of his or her liberty and deliver him or her up to a foreign jurisdiction after the courts in this jurisdiction has considered the matter and decided that the person in question should not be extradited and should be set free. I have already made it clear that I think murder should never be a political offence but I respect the independence of the courts and I would not like to be seen to be attempting to interfere with any specific case decided by the courts.

Subsection (3) deals with cases where extradition proceedings have been initiated and are still within the judicial domain. In the case of Buckley v. Attorney General 1950 IR67 it was held that under Article 34.1 of the Constitution the judicial process was inviolable while in actual operation. To delete subsection (3) might well be regarded as, and I quote from the court decision, “an unwarrantable interference by the Oireachtas with the operations of the courts in a purely judicial domain” and call into question the entire constitutionality of the Bill.

What is involved here is an attempt to apply the provisions of the Bill to cases which are currently before the courts or to cases where the courts have already made a decision. To say the least, the constitutionality of such an approach is very suspect. Therefore, I am opposing the recommittal of the Bill.

May I raise a point of order? I suggest the best way to deal with this matter is for the House to adjourn consideration of this Bill at this stage. I wish to make three brief points. First, the judge ruled on the basis of a District Court procedure, that is something we need to look at. Second, because of pre-trial publicity the Lord Chancellor, the Home Secretary and the Attorney General in Britain must take responsibility — I mentioned this on Second and Committee Stages — for this man not being extradited because of pre-trial publicity in that jurisdiction which would not be allowed in this jurisdiction. Third, in the view of the judge, section 4 did not meet the test that the assassin created a collective danger to the life, physical integrity or liberty of persons. I raised the matter of the plural, persons, on Committee Stage and I have serious reservations about this.

The Deputy has made his point.

We should adjourn consideration of this Bill to ensure we get it right because I do not believe——

I must now put the question.

I wish to raise a point of order.

Yes, if it is a point of order.

This House is becoming absolutely absurd.

I must put the question.

I have a point of order to raise.

We should not have to shout.

I try to remain orderly.

Does the Deputy have a point of order?

Yes, I wish to raise two points of order. This is the second time this morning I have had to shout in order to be heard in this House. It is absolutely outrageous that the Chair persists in ignoring Members.

That is not a point of order.

The second point of order has to do with how business is done in the House. My point relates to the conduct of this Bill. Since 1986 three extradition Bills have been addressed by the Dáil.

Deputy Gilmore——

You have not yet heard my point of order.

Will the Deputy hear the Chair, please?

Will the Chair hear the Deputy?

The Deputy will hear the Chair. The mover of the motion is allowed to make a brief statement with regard to recommittal and the Minister is entitled to make a brief statement.

I wish to raise a point of order.

(Interruptions.)

There is no provision for a debate. I propose to put the question.

I wish to raise a point of order.

(Interruptions.)
Question put: "That the Bill be recommitted wholly".
The Dáil divided: Tá, 40; Níl, 75.

  • Ahearn, Theresa.
  • Allen, Bernard.
  • Boylan, Andrew.
  • Bradford, Paul.
  • Browne, John (Carlow-Kilkenny).
  • Bruton, John.
  • Bruton, Richard.
  • Clohessy, Peadar.
  • Connor, John.
  • Cox, Pat.
  • Crawford, Seymour.
  • Creed, Michael.
  • Deasy, Austin.
  • Deenihan, Jimmy.
  • De Rossa, Proinsias.
  • Mitchell, Jim.!O'Keeffe, Jim.
  • Molloy, Robert.
  • Noonan, Michael. (Limerick East).
  • O'Donnel, Liz.
  • Dukes, Alan M.
  • Durkan, Bernard J.
  • Finucane, Michael.
  • Fitzgerald, Frances.
  • Gilmore, Eamon.
  • Harney, Mary.
  • Harte, Paddy.
  • Higgins, Jim.
  • Hogan, Philip.
  • Kenny, Enda.
  • Keogh, Helen.
  • McCormack, Pádraic.
  • McGrath, Paul.
  • McManus, Liz.
  • Mitchell, Gay.
  • O'Keeffe, Jim.
  • O'Malley, Desmond J.
  • Quill, Máirín.
  • Rabbitte, Pat.
  • Sheehan, P.J.
  • Yates, Ivan.

Níl

  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Ahern, Noel.
  • Ayward, Liam.
  • Aylward, Liam.
  • Bell, Michael.
  • Bree, Declan.
  • Brennan, Matt.
  • Broughan, Tommy.
  • Browne, John (Wexford).
  • Browne, John (Wexford).
  • Burton, Joan.
  • Byrne, Hugh.
  • Callely, Ivor.
  • Costello, Joe.
  • Costello, Joe.
  • Davern, Noel.
  • Dempsey, Noel.
  • Doherty, Seán.
  • Ellis, John.
  • Ferris, Michael.
  • Fitzgerald, Brian.
  • Fitzgerald, Eithne.
  • Fitzgerald, Liam.
  • Foley, Denis.
  • Foxe, Tom.
  • Gallagher, Pat.
  • Geoghegan-Quinn, Máire.
  • Gregory, Tony.
  • Haughey, Seán.
  • Higgins, Michael D.
  • Hughes, Séamus.
  • Jacob, Joe.
  • Kavanagh, Liam.
  • Kemmy, Jim.
  • Kenneally, Brendan.
  • Kenny, Seán.
  • Killeen, Tony.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Lenihan, Brian.
  • Leonard, Jimmy.
  • Martin, Micheál.
  • McDaid, James.
  • McDowell, Derek.
  • Moffatt, Tom.
  • Morley, P.J.
  • Moynihan, Donal.
  • Moynihan-Cronin, Breeda.
  • Mulvihill, John.
  • Ó Cuív, Éamon.
  • O'Donoghue, John.
  • O'Keeffe, Batt.
  • O'Keeffe, Ned.
  • O'Leary, John.
  • O'Rourke, Mary.
  • O'Sullivan, Toddy.
  • Penrose, William.
  • Power, Seán.
  • Reynolds, Albert.
  • Ryan, Eoin.
  • Ryan, John.
  • Ryan, Seán.
  • Shortall, Róisín.
  • Smith, Brendan.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Treacy, Noel.
  • Upton, Pat.
  • Wallace, Dan.
  • Walsh, Eamon.
  • Woods, Michael.
Tellers: Tá, Deputies O'Donnell and Quill; Níl, Deputies Dempsey and Ferris.
Question declared lost.