Dáil Éireann debate -
Wednesday, 17 May 2000

Vol. 519 No. 3

Criminal Justice (United Nations Convention Against Torture) Bill, 1998 [ Seanad ] : Report Stage (Resumed) and Final Stage.

Debate resumed on amendment No. 4.

In page 4, between lines 22 and 23, to insert the following:

"(3) A person, other than a person referred to insubsection (1) or (2), who carries out an act of torture on another person, whether within or outside the State, shall be guilty of the offence of torture, but shall be liable to be prosecuted in the State if that person or the victim of the offence is an Irish national or if that person subsequently enters the State or if the offence was committed in or has any other substantial connection with the State.”.

–(Deputy O'Sullivan).

Amendment, by leave, withdrawn.

Mr. Higgins

(Mayo): I move amendment No. 5:

In page 4, line 24, after "life." to insert "However, if the court is satisfied that the person was acting under duress or threats to his or her life the Court shall have discretion to impose a lesser sentence.".

This deals with the penalties for the offence committed. A person, whatever his or her nationality, and whether within or without the State, who attempts to commit or conspires to commit the offence of torture, or does an act with the intent to obstruct or impede the arrest or prosecution of another person, including a person who is a public official, in relation to the offence of torture, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.

I seek to mitigate that in certain circumstances. The Bill sets out to deal with official torture in all its forms and guises and there is a definition of torture contained in the definition section of the Bill. We are giving effect to the United Nations convention. There is a problem, however, that people who are doing their political masters' bidding could be caught in this. They might have no option, there is a gun to their heads. We should seek to mitigate that somewhat – after "shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life" in line 11, we should insert "provided such act or sanctions do not contravene the definition of torture assigned to it by this section".

On Committee Stage the Minister focused on the word "liable" and said the courts could exercise discretion. I would focus on the word "shall". There does not seem to be an option. I would have preferred "shall be guilty of an offence and may be liable on conviction on indictment to imprisonment for life". What we consider a discretionary choice for the courts might be more explicit than we realise. The terminology is binding in what it conveys to the courts by way of the sentence option.

Minister of State at the Department of Health and Children (Ms Hanafin)

Deputy Higgins's amendment provides that, where a person acts under duress, that person would not be subject to a life sentence. As Deputy Higgins has said, the Minister said on Committee Stage that section 2 does not provide for a mandatory life sentence. The maximum penalty under section 2 is a life sentence but a court is free to impose a lesser sentence if the circumstances warrant it. Such circumstances would not be limited to duress but duress is, in law, a defence to a criminal charge. There is nothing in this Bill which changes the applicable law governing the offences.

Amendment, by leave, withdrawn.

Ms O'Sullivan

I move amendment No. 6:

In page 4, between lines 33 and 34, to insert the following:

"4.–Where a person has before the commencement of this Act carried out an act of torture, whether within or outside the State which was at the time of such commission an offence against international law by reason of the fact that either–

(a)the act was carried out at any time and constituted or was carried out in the course of a crime against humanity, an act of genocide or a contravention of the laws and customs of war, or

(b)the act was carried out on or after the 10th day of December, 1984, and constituted a contravention of the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York on the 10th day of December, 1984,

and which was at the time of such commission an infringement of the law then in force of the State or of Saorstát Éireann by reason of being an unjust attack on the rights of any person, whether within or without the State, being rights recognised at such time by the Constitution or the Constitution of Saorstát Éireann, such person shall be liable to prosecution for that offence in the State and on conviction on indictment thereof shall be liable to imprisonment for life.".

This is a very important amendment. When we debated this on Committee Stage, we referred to the case of General Pinochet and his proposed extradition from Britain. This amendment would ensure that such a situation would not arise in this jurisdiction and that it would not be possible for someone to plead that, because this legislation was not in force when the act was committed, he or she should not be tried for the crime or extradited. The arguments in the Pinochet case centred on the fact that the relevant legislation in Britain was not in force when General Pinochet carried out the offences. It is an attempt to ensure there is no loophole in Irish law to allow such a situation to arise here.

On the list of proposed legislation, there is a new Bill from the Department of Foreign Affairs, entitled Twenty First Amendment of the Constitution (No. 6) Bill, to provide for a referendum to ratify the Rome statute of the International Criminal Court. The question of providing for some manner of retrospection in relation to international criminal law arises here and it may have relevance to this amendment. We are proposing that, when the offences were committed, they were an offence at the time under international law and would have been an offence if they had been committed in this State at the time. Obviously, however, it is questionable whether they would have been considered to be an offence in the country in which they were committed. If the person running the country committed the offence, it is doubtful it would be considered to be an offence. They are clearly offences in moral and international law.

The amendment ensures that there is no loophole through which a person who had committed horrific acts in another jurisdiction could claim clemency in this State and avoid extradition or trial.

Ms Hanafin

Deputy O'Sullivan's amendment, which seeks to make the offence of torture retrospective in law, cannot be accepted. Deputy O'Sullivan referred to the fact that on Committee Stage, the Minister explained that he was sympathetic towards the amendment but was constitutionally precluded from accepting it. Article 15.5 of the Constitution contains a prohibition of the enactment of retrospective legislation which declares acts to be an infringement of the law which were not so at the time of their commission. Much ingenuity has been used to draft the amendment to get around the constitutional prohibition. In recognition of this, the Minister asked the Attorney General to check the wording once more. Unfortunately the advice available is that the problem remains and there is no constitutional way to achieve the aim of the amendment.

Ireland takes a dualistic approach to international law. Despite the adoption of the United Nations convention by the General Assembly of the UN in December 1984, no offence is created in Ireland until provided for by our criminal law. Unless the acts constituted an infringement of the law at the time of their commission, to give retrospective effect to the present legislation would be contrary to Article 15.5 of the Constitution. If the legislation had been enacted at the time the offences were committed, we would be able to take action against them. However, when enacted, it will enable us to deal with actions that might be taking place elsewhere. In the circumstances, I regret I will not be able to accept the amendment.

Ms O'Sullivan

I am disappointed the parliamentary draftsman was not able to come up with appropriate wording to give effect to what is proposed in my amendment. I did not draft it, as I do not have the capacity to draft such a complicated amendment but, as the Minister of State said, the person who drafted it was aware of the constitutional prohibitions and was careful to use words that would comply with the Articles of the Constitution. I am disappointed the Minister of State did not find the words in the amendment acceptable or put forward a more appropriately worded amendment.

This is a serious matter. Many international human rights crimes were committed in the past before various Bills were enacted in different countries. We all want to ensure people do not get away with committing such heinous crimes against their fellow human beings. I will press my amendment.

Mr. Higgins

(Mayo): In supporting this amendment, I wish to say it has been acknowledged that in drafting it the Labour Party has brought a large amount of ingenuity to bear on it and it has gone as near as possible to making constitutional something that is unconstitutional. Article 15.5 of the Constitution is quite explicit on retrospection. I asked a question on Committee Stage to which I did not get a reply. I asked if an attempt had been made to make a law retrospective in its application in order to have it subsequently tested and challenged.

When we pass this Bill, we will deal with the Sex Offender Bill, 2000. Approximately 384 people who, in many cases, committed the most heinous sex offences, many of them against children, are in jail. A register will be drawn up to ensure such offenders are compulsorily registered so that they can be monitored, tracked and subject to surveillance as to their whereabouts at a particular time. While that will be done to protect the public, not a single offender currently detained in Arbour Hill, the Curragh or Castlerea can be put on that register because of the prohibition in Article 15.5 of the Constitution. While there is a difficulty in this regard, has the possibility of introducing flexibility in the application of the Constitution been examined or tested? Is there any scope, loophole, chink, or possibility for the introduction of such flexibility in the application of the Constitution?

Ms Hanafin

I understand it has not been tried in criminal law, but I cannot state that in relation to other laws.

Amendment put and declared lost.

Amendment No. 7 not moved.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Ms Hanafin

Ba mhaith liom a rá go bhfuil áthas orm go bhfuil an Bille seo tar éis dul tríd an Teach.

Following the return of the Bill to the Seanad, it will then be soon enacted. It is long overdue and I hope we will be able to overcome some of the issues raised here.

The Bill marks a commitment by Ireland to take its place with the rest of the international community in the effort to protect people against the use of torture by paving the way for a ratification of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

I am pleased this Bill, when passed, will bring to 27 the number of Bills passed by both Houses of the Oireachtas since the Government took office. I thank the Ceann Comhairle and his staff for their assistance and co-operation during the passage of this Bill. I also thank all Deputies for their contributions to the debate and, in particular, the main Government and Opposition spokespersons for stimulating a thought-provoking and constructive debate.

In the discussions on this Bill, there has been little difference across the divides of the House. All were at one in a wish that the legislation be enacted as soon as possible.

The international community has provided a framework for international protection against state torture. That framework is the United Nations Convention against Torture. The convention seeks to ensure that those who engage in such torture cannot evade prosecution in any of the territories of the parties to the convention. It does this by providing a common framework for the criminalisation of torture and provides a method of international prosecution of torture.

The House has strongly supported the Bill, which will enable Ireland to ratify the convention and participate fully in this important international effort. Many Deputies pointed out during the debate that this convention should have been ratified at a much earlier date and some amendments tabled have sought to make its provisions retrospective. The Minister shares this concern and, on taking office, recognised the importance of Ireland's ratification of this convention and took immediate steps to have the necessary Bill drawn up.

More and more it is becoming a fact of life that we cannot be content to watch out for what happens in our own country only. Our forefathers fought long and hard for Ireland to take its place among the nations of the world. Now we have achieved that honour, we must make sure we fully play our part. The Government is committing to ensuring that we do. Proof of that commitment is not only the taking of this Bill but that five of the 14 Bills before the Oireachtas from the Department of Justice, Equality and Law Reform contain proposals to give effect to international agreements and conventions. These include the Protection of Children (Hague Convention) Bill, 1999, the Criminal Justice (Safety of United Nations Workers) Bill, 1999, the Prevention of Corruption (Amendment) Bill, 2000, and the Criminal Justice (Illicit Trafficking by Sea) Bill, 2000.

Some Deputies would have preferred if we could go further than the convention and I understand their good intentions. However, the debate in this House has shown this Bill cannot be a panacea for all the ills and cruelties of mankind. The best must not be the enemy of the good. The convention provides for the good and this Bill follows the convention approach. It provides a good and sound basis for us to ensure that those who torture their fellow human beings cannot expect to find a safe haven in this State.

I hope this convention will be very shortly ratified and we will have in place, for when we may need them, the powers to ensure those who have engaged in torture can be brought to justice. Gabhaim buíochas leis na Teachtaí a thug tacaíocht don Bhille agus é ag dul tríd.

Mr. Higgins

(Mayo): Ar an gcéad dul síos ba mhaith liom comhgháirdeas a dhéanamh leis an Aire Stáit i ngeall ar í a bheith ainmnithe mar Aire Stáit. Ní bhfuair mé seans roimhe seo é sin a dhéanamh. Gan amhras ar bith déanfaidh sí an-job ar fad. Bhí mé ag obair taobh léi ar choiste ar an dtaobh eile den bhóthar agus chonaic mé an saghas oibre a rinne sí ansin. Beidh sí ar fheabhas mar Aire Stáit agus mar Aire lá éigin eile.

Aontaím go hiomlán leis an méid atá ráite ag an Aire Stáit mar gheall ar an mBille. Is Bille an-tábhachtach ar fad é. Táimid ag comhlíonadh le h-oibleagáid idirnáisiúnta atá againn nuair a ghlacaimid leis an mBille seo.

This is an important Bill. I agree wholeheartedly with the Minister of State about its contents and consequences. The sooner it is passed into law the better. In doing that, we will fulfil our international obligations. I agree with the comments consistently made to the effect that while we willy nilly sign up to conventions, we display considerable tardiness, at national level, in enshrining them in our domestic law. While it must be a nightmare for the Department which has to deal with a huge workload, ongoing demands, and unforeseen demands which come out of the blue, when we sign up to an international convention we have an obligation to ensure everything is done to ensure effect is given at domestic level, to the convention which we merrily signed.

Ms O'Sullivan

Ba mhaith liom freisin comhghairdeas a ghabháil roimh on Aire Stáit. We have had an opportunity to congratulate the Minister of State in other places but not on the floor of the House. I am pleased this legislation is passing through. We are not as quick as we might be in ratifying conventions and there are many more to be ratified. The world is becoming smaller in terms of our interaction with out countries. There are continual obligations on us to participate in whatever way we can at international level to make the world a safer and better place. We must do whatever we can in terms of co-operation with law, policing, drugs and other matters. The enactment of this Bill is one way of co-operating because torture, in itself, is abhorrent to all of us. We must do whatever we can in terms of international co-operation. While I tried to extend it further, nevertheless I am pleased the Bill is being passed.

Question put and agreed to.