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Dáil Éireann debate -
Friday, 5 Dec 2003

Vol. 576 No. 4

European Arrest Warrant Bill 2003: Second Stage.

I move: "That the Bill be now read a Second Time."

I am pleased to present to the House the European Arrest Warrant Bill 2003. The Bill gives effect to the provisions of the framework decision on the European arrest warrant and will, when enacted, replace, as and from 1 January 2004, the existing arrangements between Ireland and other member states of the European Union.

Before I come to the provisions of the Bill, it is appropriate to look at the background to the adoption of the framework decision on the European arrest warrant, a copy of which is attached to the Schedule to the Bill.

One of the key objectives of the European Union is the creation of an area of freedom, security and justice. The European Union is built on democratic principles and the rule of law. It is characterised by the free movement of persons, capital, goods and services. The citizens of the member states have benefited enormously from the opportunities created and from the removal of the barriers to the movement of people and services. However, these same freedoms and opportunities need protection from those who would abuse them in order to evade justice. The reforms introduced by the Treaty of Amsterdam and the additional impetus given by the 1999 Tampere European Council highlighted the importance of developing within the justice and home affairs area measures that protect the Union and member states against such violations. The framework decision on the European arrest warrant owes its origins in particular to the Tampere European Council. The Council endorsed the principle of mutual recognition which, in its view, should become the cornerstone of judicial co-operation in both civil and criminal matters within the Union. I stress this because the alternative strategy was uniformity and harmonisation right across the board. A strategic decision was made at Tampere in favour of the principle of mutual recognition.

It also recognised the need for extradition arrangements that would support and reflect the shared values of the member states and protect their citizens from the scourge of cross-border crime. The framework decision is, therefore, a practical expression of the desire of member states to improve the efficiency and effectiveness of extradition arrangements in a way that reflects the unique relationships that form the basis of the Union. While it follows earlier initiatives, in particular the 1995 and 1996 EU conventions on extradition, it is, as we will see, more radical and far-reaching in its approach.

As mentioned earlier, the framework decision on the European arrest warrant will replace the existing extradition arrangements among member states of the EU. The existing arrangements are, in the majority of cases, based on the Council of Europe's 1957 European Convention on Extradition. Although all the member states are parties to the 1957 convention, the extradition arrangements in place reflect certain variations based on historical and other factors. Such variations can be found in the arrangements in place in the case of the Nordic and Benelux states as well as between Ireland and the United Kingdom.

I will outline some of the main characteristics of the framework decision and the way in which it differs from the existing arrangements. However, as an overall comment on the framework decision, it is important to bear in mind at all times that it represents a careful balance between, on the one hand, the need for a more efficient system of extradition and surrender of persons who have been convicted or who are being sought for prosecution and, on the other, the provision of safeguards to protect the rights of the individuals concerned. With that in mind, I will first highlight the major new features and then the safeguards that will apply.

Historically, extradition has been regarded as an aspect of a state's exercise of its sovereignty. As a result, extradition arrangements entailed a significant role for the executive arm of the state in question. The framework decision replaces in large measure the interstate aspects of extradition by a system of surrender based on recognition by the judicial authorities of one member state of orders issued by the judicial authorities in another member state for the arrest and surrender of wanted persons. In future, the role of the executive agencies of the state will be to provide administrative and technical support for this intercourt system. This will be done through the central authority in the state. In Ireland, the central authority will be the Minister for Justice, Equality and Law Reform and his or her Department. Therefore, the new system can, to a significant extent, be described as an intercourt system.

The current extradition arrangements have been regularly criticised for being slow, often taking several years to complete. The framework decision addresses these concerns by the introduction of timeframes for the taking of decisions on European arrest warrants. It is proposed that a decision on whether or not to surrender a person should normally be taken within 60 days of the person's arrest, or within a further 30 days where the initial period cannot be met. These timeframes are reflected in the present Bill. However, I stress that they are timeframes, not time limits. By this I mean they are indicative rather than prescriptive. This is the case because, under the doctrine of separation of powers that applies, for instance, in Ireland, it would be inappropriate for the Executive or the Oireachtas to seek to limit the exercise of judicial discretion through the imposition of strict time limits when dealing with cases before the courts.

Traditionally, many states refused to extradite their own nationals and considered certain offences as being non-extraditable. The framework decision does not provide for exceptions based on, for example, categories of either offences or offenders. Therefore, there are no provisions permitting refusal to surrender on the grounds that the person being sought is a national of the executing member state or that the offence falls into a particular category of offences, such as revenue or political offences. This is a reasonable approach when we recall that we are dealing in this context with close allies who share our democratic values and respect for the rule of law. Ireland never had difficulty in principle with the extradition of our nationals, provided only that the arrangements were reciprocal. We have over many years greatly curtailed the political offence exception and we changed our law in 2001 to permit extradition for revenue offences.

The last, but by no means the least, of the major changes I want to highlight relates to the dual criminality requirement. This is the requirement which provides that a person may be extradited to face prosecution or service of a sentence in another state only where the offences concerned are offences under the laws of both the issuing and executing states. The framework decision introduces a significant curtailment of this requirement. Under the arrangements now being introduced by the framework decision and by this Bill, surrender may be sought for offences carrying a penalty of 12 months imprisonment or more, provided the alleged offence corresponds to an offence under the law of the executing member state. In other words, the dual criminality requirement still generally applies. However, the framework decision also provides that where the alleged offence comes within any of the 32 categories of major offences listed in Article 2.2 of the framework decision, and it is an offence that carries a penalty of three years imprisonment or more under the law of the issuing member state, the position under the law of the executing member state does not arise for consideration by the executing court. In other words, the dual criminality requirement is dropped in such cases.

This element of the framework decision presented some difficulty for several member states, including Ireland. It represents a significant departure from current law and practice. However, on examination of the list of offences in Article 2.2 – it is generally referred to as the "positive list"– one will find that, leaving aside the way they are described, all of them are already regarded as serious offences under Irish law. Therefore, since they are already serious offences under our law, dropping the dual criminality requirement in these cases is not as critical as might appear at first glance. While the exact description of one of these cases may not be the same in France as in Ireland, the substance of the offence and the categories set out in the positive list are offences in Irish law. This does not cause us any major problem.

I would like at this stage to draw the attention of Deputies to the safeguards in the Bill. These are designed to protect the rights of the arrested person. Most of them are to be found in the framework decision itself and are repeated in the Bill. I will also be drawing attention to the additional safeguards arising from the statement made by Ireland when the framework decision was being adopted.

Dealing first with the provisions of the framework decision, it sets out general principles on which the safeguard provisions are based. In addition, it contains specific provisions that list mandatory and discretionary grounds upon which requests for surrender can be refused. It also lists guarantees that may be sought before a person is handed over.

On the general principles, recital 12 affirms that the framework decision respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty of the European Union.

Article 6 states, inter alia:“the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms”, the ECHR. Article 1.3 of the framework decision also refers to article 6 of the Treaty on European Union and provides: “the Framework Decision shall not have the effect of modifying the obligations to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union”.

Recital 12 goes on to state: "nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of those reasons." Recital 12 adds that the framework decision "does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media."

Recital 13 is also important. It states: "no person shall be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment." Section 29 reflects the provisions in article 1.3 and recitals 12 and 13.

In regard to the specific protections and guarantees, article 3 of the framework decision lists mandatory grounds for the non-execution of European arrest warrants. A person may not be surrendered if he or she has been the subject of an amnesty in respect of the offence in question. A person who has been finally judged and has completed a sentence imposed in a member state or is no longer required to serve it in respect of the offences in question may not be surrendered. A person who cannot be held criminally responsible for the offence in question by virtue of his or her age may not be surrendered. Sections 31, 33(1) and 35 of the Bill reflect these provisions.

Article 4 of the framework decision lists grounds upon which member states may rely, as opposed to non-mandatory grounds, for non-execution of European arrest warrants. Several of these are included in the Bill. Section 30 implements article 4.1 and requires that, with the exception of the offences on the "positive list", the offences specified in the warrant must correspond to offences under Irish law, with a necessary qualification to allow for variations in the designation of certain revenue offences. Clearly Revenue codes are not the same across Europe so that we will be dealing with substantial correspondence in those cases. Section 30 therefore implements the dual criminality requirement for offences other than those covered by the "positive list".

Section 34 implements article 4.2 and 4.3. It provides that a person may not be surrendered where he or she is being proceeded against in the State in relation to the same offence or where it has been decided not to proceed or to halt proceedings against the person in the State in respect of the offence on which the warrant is based. In other words, if in Ireland a person is being proceeded against for the offence or if a decision has been made to halt or not to prosecute, that is a ground on which Ireland can refuse to extradite. Section 32 implements article 4.4 in prohibiting surrender where a prosecution for the same offence would not be permitted in the State by virtue of lapse of time.

Section 33(2) implements article 4.5 by prohibiting surrender where the person had been finally judged in a non-EU state and had served the sentence imposed or was no longer required to serve it. Section 36 implements article 4.7. It prohibits surrender where the offence occurred on the territory of the executing state or outside the territory of both the issuing and executing states and the offence is one over which the executing state does not have jurisdiction. Extra territorial offences or offences committed in Ireland are dealt with by that provision.

Section 37 gives effect to article 5.1. It provides that where the person had been tried in absentia, surrender may be made subject to guarantees from the issuing state that the person will have an opportunity of a new trial and of being present at that trial. Article 11 contains the very important provision that a person must be informed of the right to legal assistance and interpretation services. A person arrested under either section 11 or section 12 of this Bill must be informed of these entitlements.

Article 12 provides that a person may be remanded on bail pending a decision on his or her surrender. Sections 11(5) and 12(5) of the Bill give effect to that provision. A person who consents to surrender, as provided for by article 13 and section 13(8) of the Bill may withdraw that consent. In such cases, the person is then entitled to a full hearing of the surrender application. Before accepting that the person has consented to his or her surrender, the court must be satisfied that the consent was voluntary and informed.

Article 14 provides a guarantee that an arrested person has a right to a hearing before being surrendered. This is given effect by sections 13 and 14 of the Bill.

Section 28 gives effect to article 26. It ensures that in the case of persons returned to Ireland, any time served in custody in the executing state pending a decision on the request will be taken into account in any sentence to be served here. A person surrendered by Ireland to another member state on foot of a European arrest warrant may not be surrendered or extradited by that other member state to a third member state or to a non-EU state without the consent of the Minister for Justice, Equality and Law Reform. Sections 18 and 19 make provisions in this regard.

Deputies will agree that the safeguards I have just outlined are real and comprehensive. However, before leaving this topic, I draw attention to the statement Ireland made when the framework decision was being adopted. The text of that statement is as follows: "Ireland shall, in the implementation in domestic legislation of this Framework Decision provide that the European arrest warrant shall only be executed for the purposes of bringing that person to trial or for the purpose of executing a custodial sentence or detention order." The important point to note is that in cases where the person has not yet been convicted, the emphasis is on ensuring that the person is being sought to face trial. This is designed to ensure that persons are not surrendered in custody for investigative purposes, with the possibility of prolonged detention before a decision is taken on whether to charge that person. That is the substance of the Irish declaration.

Section 9(3) gives effect to Ireland's statement. It requires that the issuing judicial authority must provide written undertakings that the warrant is for purposes of the person being charged with and tried for the offence specified. In addition, it requires that there must be written confirmation that the person has been charged and that a decision to bring the person to trial has been made or, alternatively, that a decision has been taken in the issuing member state to proceed to charge and try the person once he or she has been returned to that member state.

Still on the question of safeguards, I want to mention briefly the position in relation to the accession states. As the House will be aware, eight states from central and eastern Europe as well as Cyprus and Malta will be joining the EU with effect from 1 May 2004. They will be expected to implement the framework decision as part of the acquis they will take on board as from that date. However, given the importance and sensitivity of the justice and home affairs issues, as well as some other matters, a special safeguard clause has been inserted into each of the accession treaties. The clause provides that the Commission should monitor implementation of framework decisions by the new member states and provides for remedial actions, including the suspension of the operation of framework decisions by those new member states in certain cases. This measure should allay concerns about the implementation of measures such as the European arrest warrant in the early years of EU membership by the accession states.

I wish to outline now how the new arrangements will operate. While, as I mentioned earlier, the new system is designed to be in very large measure an inter-court system, the framework decision, nevertheless, permits each member state to nominate a central authority. Its role is to provide administrative and technical assistance in relation to the transmission of warrants as well as supplemental information or documentation. It will also liaise with relevant authorities in other member states in connection with arrangements for the handing over of wanted persons and property. That is relevant because in the majority of states in Europe the judiciary has an investigative role of its own, but in Ireland that is put on the Executive side of the constitutional structure so that we have to put in place a central authority which is effectively not the court itself. That is the reason the Minister for Justice, Equality and Law Reform will perform that central authority function and it enables the Minister to delegate by order certain of the central authority functions to other agencies or persons should the need arise.

The High Court will be the judicial authority with responsibility for the execution of European arrest warrants received by Ireland. Any Irish courts having jurisdiction in criminal matters may issue a European arrest warrant, on application from or on behalf of the Director of Public Prosecutions, where a person now in another member state is facing charges or is required to serve a sentence in Ireland. In all cases, the warrants will be transmitted, inwards and outwards, by the central authority. European arrest warrants may be in their original form or may be sent by fax or electronically. Electronic transmission may, in due course, be via the Schengen information system, SIS. Ireland has opted to participate in elements of the Schengen Convention and arrangements are being put in place to establish the necessary systems and procedures.

Section 11 provides that following receipt of a European arrest warrant, it will be brought to the High Court for its endorsement. Endorsement of the warrant by the High Court will have the effect of authorising the arrest of the named person. The powers of the gardaí to make an arrest in these circumstances are provided by section 20. It includes powers to enter premises to effect the arrest and to seize goods and property considered to be connected with or the proceeds of the offence specified in the European arrest warrant.

The possibility of an arrest where the gardaí are satisfied, based on information available on the SIS, when that system is up and running, that a European arrest warrant exists, but has not yet been received is provided for by section 12. The information on the SIS must indicate that where the person has not yet been convicted, he or she is to face trial rather than being sought for investigative purposes. An arrest under section 12 must be based on a reasonable belief that the person will leave the State prior to the European arrest warrant being received here. Where there are no grounds for such a belief, the question of an arrest must await the arrival of the European arrest warrant and in those circumstances the procedures I have outlined for section 11 apply. In cases of arrests under section 12, the European arrest warrant must be produced within seven days of the arrest, otherwise the person must be released. That mirrors provisional warrants which are already provided for under classical extradition provisions in Irish law.

A person who has been arrested, whether under section 11 or 12, must be brought before the High Court as soon as possible after his or her arrest. The court may remand the person in custody or on bail and it will also fix a date for the full hearing of the application. However, a person has a right to consent to surrender at this or any later stage. Section 13 deals with such cases. In these cases a full hearing will not be required if the court is satisfied that the person has given his or her consent voluntarily and in full knowledge of the consequences. As I indicated earlier, a person who has consented may withdraw that consent. Withdrawal of consent will give rise to the need for a full hearing.

Section 14 provides that the High Court may, after satisfying itself that the person before it is the person named in the European arrest warrant and after hearing the application, make an order for the person's surrender. However, it may do so only where it is satisfied that all the provisions in the Bill are complied with. There is a stay of 15 days before the order takes effect and the person will normally be surrendered within a further ten day period. Upon making the order, the court must remand the person in custody and inform him or her of the provisions of Article 40.4.2º of the Constitution which allow for habeas corpus applications. Section 14(10) provides for appeals on points of law to the Supreme Court against the High Court's order.

Section 17 deals with the rule of specialty which provides that a person who has been extradited or surrendered to another state may be proceeded against in that other state in respect only of the offence or offences for which he or she was extradited or surrendered unless the consent of the extraditing country has been previously obtained. That remains the basic position but certain limitations are introduced. The framework decision and the Bill provide that a person may be proceeded against for offences other than those for which he or she was surrendered where such offences attract financial penalties only or where a sentence of imprisonment will not arise. Neither will the rule apply where the person in question consents, either before or after his surrender, to being proceeded against for other offences. In both cases, the court must satisfy itself that any consent given has been or will be given freely and in awareness of the consequences. As is the case under current extradition rules, specialty will not be applied in cases where the issuing judicial authority requests the central authority in this State to waive the rule and the Minister agrees to do so.

Sections 18 and 19 provide that a person who has been surrendered on foot of a European arrest warrant may not be surrendered to a third member state or to a third country, that is, to a non-EU state, unless the person gives voluntary and informed consent or unless the Minister in this State agrees to the onward surrender, having regard to the safeguard provisions in Part 3 of the Bill and in the framework decision. In cases where the request is for the extradition of the person from the member state to which he or she has been surrendered to a non-EU state, the High Court will also be required to give its consent and it may do so only where it is satisfied that the requirements of the Extradition Act 1965 are met.

Sections 24 and 25 of the Bill set out the procedures and criteria to be applied when there are several European arrest warrants for the same person but from different member states, or where there are European arrest warrants from one or more member states and extradition requests from one or more non-EU states.

Sections 26 to 28, inclusive, deal with the arrangements for the issuing of European arrest warrants by Ireland. Section 27 provides that applications may be made to any court having jurisdiction in criminal matters by or on behalf of the Director of Public Prosecutions. The courts in question are the District and Circuit Criminal Courts, the Central Criminal Court and the Special Criminal Court. A European arrest warrant may be applied for where a warrant for the arrest of the person has already issued in the State and the person is not in the State. The warrant must be in respect of an offence having a penalty of 12 months imprisonment or more, or where the person has already been convicted, a sentence of four months or more has to be served. The court that issues the European arrest warrant will be required to indicate whether the European arrest warrant is in respect of an offence that comes within the "positive list", an offence listed in article 2.2 of the framework decision that carries a penalty of three years imprisonment or more under Irish law.

The executing judicial authority in the other member state will be obliged to accept that certification and the question of the dual criminality of the offence shall not be considered further. As I indicated earlier, the reverse applies in the case of European arrest warrants which are to be executed in Ireland.

I referred earlier to the guarantee in section 28 to the effect that a person who is detained in custody in another member state while the European arrest warrant issued by Ireland is being processed in that other member state shall be entitled to have that period of detention taken into account when determining, following surrender, the period of sentence to be served, if any, in Ireland.

Part 3 of the Bill, sections 29 to 38, inclusive, contains the safeguards I spoke about earlier. I do not propose to cover that ground again but I emphasise that every application that comes before the High Court will be subject to these safeguards and no application for a surrender on foot of a European arrest warrant may be granted unless and until those safeguards are satisfied.

Part 4 contains a number of miscellaneous amendments to our existing extradition law. The Extradition Act 1965 contains the main provisions. It has already been amended on a number of occasions, twice in 1987, again in 1994 and most recently in 2001. Section 39 of the Bill proposes to amend section 3 of the 1965 Act. It is proposed to amend the definition of "country" to include "territories" for which that country has responsibility at the level of international relations. The immediate purpose of this amendment is to ensure that extradition arrangements with the Isle of Man and the Channel Islands can continue to operate. Those territories will not be operating the framework decision on the European arrest warrant and it has been agreed with the UK authorities that extradition arrangements with those territories should, instead, operate on the basis of the 1957 European Convention.

I referred just now to an agreement with the UK in relation to future extradition arrangements with certain UK territories. That was part of a wider discussion with the UK authorities on arrangements to apply once the European arrest warrant enters into operation on 1 January next. Article 31.2 of the framework decision deals with cases where there are bilateral arrangements in force such as the "backing of warrants" arrangement we have with the UK. It states: "Member states may continue to apply bilateral or multilateral agreements or arrangements in force when this framework decision is adopted in so far as such agreements or arrangements allow the objectives of the framework decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of European arrest warrants." This is the legal test to be applied to existing arrangements. Applying these criteria, it was agreed with the UK that the existing "backing of warrants" arrangement does not satisfy the legal test in question and will therefore be replaced as from January next with the European arrest warrant.

Part III of the Extradition Act 1965 provides the legal basis for the "backing of warrants" arrangement. Among a number of technical amendments I propose to bring forward on Committee Stage is an amendment to provide for the formal repeal of Part III. While the effect of the Bill will be to render Part C of the 1965 Act redundant, I understand that the UK legislation on the implementation of the framework decision will also provide for the formal repeal of its legislation on the "backing of warrants" arrangement, namely, the Backing of Warrants (Republic of Ireland) Act 1965.

Section 39(1)(b) and 39(2) amend sections 1A and 1B of the 1965 Act, as inserted by the Extradition (European Union Conventions) Act 2001. Sections 1A and 1B of the 1965 Act provide that the Minister for Foreign Affairs may designate member states with which Ireland will operate the 1995 and 1996 EU Conventions on Extradition. Under the terms of the 2001 amendments, the conventions could apply only between Ireland and other member states. However, in the meantime it has been agreed by the EU that all or part of the conventions should apply in relations between the member states and Norway and Iceland, and between those two states. The amendment proposed will allow the Minister to designate states other than member states, thus allowing Ireland to participate in the extension of the territorial scope of the conventions. These amendments must be read together with the amendments introduced by section 41 of the Bill.

This amends sections 4 and 10 of the 2001 Act by providing that the 1995 and 1996 conventions may be deemed to have been adopted in whole or in part by countries designated by the Minister for Foreign Affairs for that purpose. The overall effect of these changes is that non-EU states may be deemed to have adopted the 1995 and 1996 EU conventions or parts thereof and where that occurs Ireland may then operate those conventions with states that have been deemed to have adopted them.

Section 4 amends the procedural requirements in section 10 of the Extradition (European Convention on the Suppression of Terrorism Act) 1987 for the laying of orders before each House of the Oireachtas. It is proposed that orders shall take effect 21 days after being laid unless annulled. The orders under section 10 of the 1987 Act are for the purpose of extending the provision of that Act to apply between Ireland and countries that are not parties to the European Convention on the Suppression of Terrorism. The amendments bring the procedures under section 10 into line with the amendments to section 4 of the 1965 Act which were introduced by section 21 of the 2001 Act.

In conclusion, this Bill represents a major development in our relations with other EU member states. It is mandatory for us to do this. EU law requires us to transpose the framework decision into Irish law and I hope the Deputies will appreciate that this is not a policy initiative in which we are free agents to accept or reject these matters. Under international law we must give effect to the framework decision in a manner which we adjudge to be correct and which is consistent with our obligations under EU treaties.

I traced the origin of this Bill to the aftermath of the attack on the World Trade Centre on 11 September 2001, when EU member states decided they needed better co-operation on extradition between their legal systems. They did so for good reason. While the citizens of the member states have benefited greatly from the opportunities created by, and the removal of barriers to, the movement of people and services in the EU, those freedoms and opportunities need protection.

I read an article in a national newspaper last Sunday which described our security services and the present threat from international terrorism. An expert in risk management in this field said that Dublin is full of soft targets for terrorists and especially in areas such as Ballsbridge where there are many embassies which could be susceptible to an international terrorist threat. He said our security services are gravely inadequate and could not obtain information on a terrorist threat aimed at foreign diplomatic missions here if one arose in the short-term. It made me wonder how prepared we are for such an attack. He went on to say there is a lack of shared intelligence between the agencies here and that we will be fortunate to remain unscathed in the long-term.

I also read the Department of Defence strategy statement 2003-2005 which states:

On a day to day basis, internal security is primarily the responsibility of the Minister for Justice, Equality and Law Reform and the Garda Síochána. Defence, however, plays a key role in providing, on request, aid to the civil power.

It continues:

It is essential also that the cross-cutting dimensions of security are recognised and that the structures and arrangements currently in place at Government level, at inter-Departmental level and at operational level between the Garda and the military authorities are maintained to ensure integrated service planning and delivery. In this regard there has been a reduction in the internal threat to national security emanating from republican and loyalist paramilitary groupings. However, as this threat reduced, the potential threat from international terrorism increased (although that threat is currently assessed as low) and this has implications for the internal security situation.

It then mentions a review and the changing security environment.

The risk analyst interviewed in last Sunday's newspaper contradicts that, saying there is unquestionably a threat. Britain recently escalated its threat level while our Department of Defence believes the threat is insignificant in terms of Irish interests without realising that the threat against British and US diplomatic interests here is as high as in Britain and the US. I have not come in here to make political points because on the last few occasions when the Minister and I were here we ended by shouting at one another. That threat needs to be examined on a bipartisan level to establish whether there is any truth in it.

Deputy Gay Mitchell talked about our mutual defence arrangement over the last year. While it is clear that we cannot hold EU summit meetings in Ireland, which I appreciate was not our decision, do we have the requisite air defences, or a contingency plan, or are we prepared to deal with the kind of terrorist attack witnessed recently in Istanbul? The risk analyst argues that we do not. The Department of Defence strategy statement does not make our contingency plan clear. What are the contingency plans within the Garda Síochána? Do we have the requisite intelligence on an ongoing basis, for example, does the immigration bureau follow up illegal immigrants? Is our intelligence sophisticated enough to deter terrorist threats? Deputy Gay Mitchell once said that Ireland is not part of any alliance and is not equipped to defend its neutrality. This makes it the most vulnerable state in Europe in terms of possible outside attack. Perhaps the Minister could deal with this in his final speech. The analyst's point is fair and this legislation is rooted in the fear among EU member states that we were not co-operating enough to deal with that kind of threat. This analyst says that the threat exists here but we are taking it too lightly and we are vulnerable which is very serious.

In general, this legislation would replace the existing system of extradition and make it compulsory for a person wanted for an offence punishable by at least a year in prison to be handed over to the authorities in the member state that requests his or her surrender. If someone is extradited for one offence can he or she then be tried for another? Is it clear that people will not be held in investigative detention before a decision is made to charge them, rendering automatic the extradition of persons wanted for questioning who have not been charged with any offence? Is it clear that Ireland deals with the extradition of people to states which extradite to Ireland only with full reciprocity? The Minister has explained the safeguards protecting the liberties and rights of individuals. I am unclear about the time limits in this Bill which refers to a 60 or 90 day limit but this is quite open-ended. I understand the Oireachtas cannot direct the Judiciary in this regard and it is more a case of "should" than "must" or "will" in that it is not written as firmly as in other jurisdictions. Perhaps the Minister can explain how this came about.

The Minister touched on dual criminality. Ireland was initially opposed to the Commission's proposal to abolish the dual criminality principle. At the end of 2001, the then Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, said that he would have great difficulty in explaining to someone why he or she should be extradited for something which is not a crime in Ireland. One of the initial concerns was that there was a potential problem of being asked to extradite to Ireland someone suspected of carrying out an abortion, for example.

I read through the list of crimes described by the Minister as the positive list. The first crime listed there was membership of an organised crime gang. Considering the Minister's recent statements on membership of organised crime gangs, there is an irony there. If one commits the offence of being a member of a criminal gang in Spain, for example, then under this legislation one can be extradited from that country even though it is not a specific offence to be a gang member in Ireland.

When the Taoiseach announced the agreement in December 2001, he said it would be very effective in helping to combat organised crime across the European Union. An Irish person accused of being a member of an organised crime gang in another jurisdiction will have ten days to give himself or herself up in that country. If that person refuses to go voluntarily, the Garda will have up to 60 or 90 days to verify that the correct person has been identified and should be deported for trial. The Minister said he has extreme difficulty in considering introducing measures to make organisation of a gang illegal. However, he has no difficulty in allowing an Irish person to be extradited and prosecuted for being a member of an organised crime gang elsewhere. This legislation would allow for that. Once a warrant is issued by a judge in one state, it would have to be executed in the other if it involves one of these offences on the so-called positive list. There is no difficulty in allowing an Irish citizen to be tried as a member of an organised crime gang as long as it does not happen on Irish soil. That is what this legislation would entail.

Recent Government policy with regard to the EU and criminal law is pretty schizophrenic. The Minister has on quite a few occasions questioned the EU's involvement concerning Irish criminal law and is entitled to do so. The position he takes is at odds with previous Government positions. We need to combat serious crime at the European level. As the Minister said, we have a much expanded Europe without borders, and we need to accept that the security threats now posed by terrorists are changing, and becoming far more ominous. There has been some reluctance on the Minister's part to deal with or engage in these matters. He mentioned his resistance to harmonisation of EU criminal law with our own criminal law.

The position of the working group on justice and home affairs is a bit clearer. That group has regularly expressed the principle of mutual recognition as a basis for policing and criminal law matters between member states. That is what we are dealing with now. This legislation encapsulates the idea of mutual recognition which is based on mutual respect for each other's legal systems.

It has been suggested by the Minister that this concept of mutual recognition might allow for interference in the criminal justice systems of individual member states. There are unique problems in the field of crime in an economic area that has no borders, which is why Europol and Eurojuste were created. We have to deal with issues like drug dealing and human trafficking, with organised crime. We cannot close our eyes to that. The Minister has however suggested that our criminal law system could be compromised or undermined by EU input. That is not necessarily the case. It is essential that the appropriate safeguards are put in place for the protection of an individual's rights, and that the core elements of our criminal justice system are maintained. I have no argument with that, but we must involve ourselves a little deeper in this process. I understand that no submissions were made by the Department of Justice to the working group on justice and home affairs when it was finalising its report.

If there is to be effective prosecution and policing of crime within the EU, member states must be prepared to work together. I say that because what happened in Istanbul recently could happen in Ireland. That is not an outrageous statement. We need to deal, work and co-operate with EU member states in this regard. I acknowledge that there are two completely different legal traditions within the EU, but an accommodation must be made between them when decisions are taken.

People have suggested that attempts are being made to create a unified system of criminal law for the whole of the EU. We possess a distinct legal and constitutional culture in this State. We do not need to sacrifice too much in this area in order to properly co-operate in criminal matters with fellow member states. Sometimes I wonder if the Minister for Justice gets involved in legal debates and arguments for the sake of it. Perhaps he does so just to impress his EU counterparts. Looking back at the history of this issue over the past two or three years, my concern is that we need to co-operate with the other EU states. I understand that anyone has the right to voice his or her opinion, and ask questions about our criminal law system and that of the European Union, but we must co-operate and be prepared to integrate our criminal law systems so that they can prevent events such as the recent bombing in Istanbul. We must co-operate with the other EU member states and hone the level of co-operation to the optimum.

I look forward to discussing this on Committee Stage. I ask the Minister to address in his wrap-up speech my concern regarding our state of readiness and preparedness, and the type of contingency plans we should have in light of the growing threat of international terrorism. We have soft targets in this country. We cannot presume we will not be the target of an international terrorist attack. Not only do we have embassies in Dublin, but we also have British and US interests all around the country. It is a question of preparedness and intelligence. I am not sure we currently have that capability or that we can protect against a co-ordinated and well orchestrated terrorist attack. That should be addressed.

I welcome the Minister. I listened carefully to his wide-ranging contribution. We have very important legislation before us. In many ways it looks at what the European Union was set up to do and how it is supposed to do it. The European Union was criticised in the past for concentrating too much on economic matters and not enough on social matters, and possibly legal co-operation and criminal matters too. Essentially, the European Union has been a marketplace for the exchange and transfer of goods and services. We have accepted the principles of the marketplace. There is much goodwill between the member states. Is the abolition of our extradition legislation a step too far? Is it time to stop and think? These are matters which are underpinned by the Constitution and by international conventions and where our history, traditions and legislation differ. Many European states base their legal systems on the Code Napoléon while our own is a common law legal system. What are the implications of this measure for Ireland?

I remind the Minister of the Nice treaty debate when an incredible amount of soul searching was done. The first referendum was strongly defeated on the basis of a perceived democratic deficit. People felt that they did not know what was going on and, in so far as they did, they were concerned that things were not being done properly. The major institutions of the Euopean Union were at fault in not providing adequate information and the public suspected that they were operating in a fashion which was not fully democratic at every level, apart from the European Parliament. The Council of Ministers and the Commission, above all, were seen as bodies which operated behind closed doors.

The Minister regularly comes before the Select Committee on Justice, Equality, Defence and Women's Rights prior to his monthly visits to Brussels and asks for the select committee's imprimatur on the discussions he will have there. When he does not get it I am sure he goes ahead with the discussions anyway. The matters then go to the Dáil and are passed, without debate, to the select committee, where they are debated. Can the Minister say that is a satisfactory mechanism? Is the legislation before us today being dealt with in a satisfactory way?

The process of European Union scrutiny is flawed and it is most flawed in the manner in which this legislation has come before us. I understand that my predecessor, Deputy Howlin, received the original Framework Document immediately before he came into the Chamber to debate it. The same was true for the spokepersons for the other Opposition parties. No proper opportunity was given to discuss the contents of that far reaching directive which would have binding intent. Once it was passed by the House we were bound to transpose it into our domestic law. That is no way to do business. It puts the cart before the horse. We are debating the European Arrest Warrant Bill 2003, but previously the House was presented with a document which it had no time to study or debate. On that occasion the debate lasted less than an hour on legislation which ties the hands of subsequent legislators, although we can make some minor changes.

The Select Committee on Justice, Equality, Defence and Women's Rights receives a considerable number of proposals which have far-reaching implications for mutual recognition between member states. The select committee recently discussed this matter in the context of the extension of a mutual recognition treaty to Norway and Iceland, which had already been agreed at European level. The committee does not have the opportunity to research or scrutinise the contents of these documents. A couple of weeks ago the select committee recommended that there should be no Dáil debate on one such document. The committee tail was wagging the Oireachtas dog. Whatever takes place in the Select Committee on Justice, Equality, Defence and Women's Rights usually marks the end of the affair.

Arising out of the Nice treaty, the mechanism for scrutiny of European measures was put in place. However, the sub-committee established to oversee this is not adequately resourced and it is not effective in scrutinising the vast quantity of important documentation which comes before select committees. This is true, not only of the justice area but also of other areas. The situation will go from bad to worse as greater quantities of European Union documentation are decided upon inadequately and then transposed into Irish legislation. Adequate resources must be provided for this work if it is to be done in a proper fashion.

Too much legislation coming from the Department of Justice, Equality and Law Reform is initiated in Europe and not in Ireland. A great proportion of our legislation is being led by decisions promoted in other jurisdictions and in other contexts and does not emanate from our own jurisdiction. While we acknowledge the principle of subsidiarity we are, nevertheless, introducing and implementing legislation which someone else has determined is good for us. We want mutual co-operation but when that extends to mutual recognition we move onto a different plane and we expect basic standards and equivalences to operate across the board.

This development has curtailed the corpus of domestic legislation coming from the Minister's Department. I am sure the Minister is as frustrated by this as the rest of us. A vast quantity of Bills and proposed legislation appears on the Order Paper but the House does not reach the items on the list and the legislation is not passed. The last legislation initiated in the Minister's Department which was passed in the House was a Bill to allow the appointment of two High Court judges. That debate was guillotined, as is this debate. It is not acceptable that, knowing that this legislation must be enacted by 1 January 2004, we are obliged to curtail the debate on it.

Several other Bills have not been reached. Legislation to regulate the private security industry, which has been on the list for the past two or three years, was debated before the summer. The Bill has passed Committee Stage but it has not yet reached Report Stage. The area of private security services is crying out for domestic regulation. The sector is a major component in the operation of security. It has more than the combined numbers in the Army and Garda but it has not yet been regulated.

I have a criticism of the Minister. The Intoxicating Liquor Bill was guillotined in its presentation and procedure as was the Immigration Bill. Another Bill will be guillotined before the end of this term and the House must deal with it before it rises.

The administrative process should be examined. There is a fundamental difference between this legislation and other Bills dealing with the European context. Police co-operation was dealt with under the Framework Document and the Treaty of Amsterdam. Under this Bill, our extradition procedure will be abolished and replaced by a type of fast track mechanism by means of a court order issued from the issuing jurisdiction to the requesting jurisdiction. The court will examine and scrutinise the order in terms of its administrative content and not in terms of its substance. If everything is above board in terms of the processing of the order, it will then be processed and examined. Essentially it is an administrative process, not a judicial process, which is the fundamental change.

The Bill deals with the abolition of extradition but also with prosecution matters. We are talking about accepting a court order emanating from a different jurisdiction such as Poland, Cyprus, Malta, France or Greece. We cannot presume that such jurisdictions have the same judicial programme, the same criminal justice system, the same safeguards or the same protections as operate in Ireland. We do not know a thing about them. We are acting purely on the goodwill of the issuing state and we must accept without question that such is the case.

Once the order goes through and the Minister decides it is within the time limit and the details are correct, how can we be sure the European Convention on Human Rights is operational in the other jurisdiction? How can we prevent a situation arising whereby a series of other activities could take place later on? The Minister stated that safeguards have been inserted. The safeguard is that there should not be any further investigation, but how will the Minister ensure this?

The Bill will give effect to Ireland's statement that in its domestic laws it will provide the European arrest warrant will be executed solely for the purpose of bringing a person to trial or for the execution of a sentence. Can the Minister assure the House this will be the case?

The framework decision is in respect of a person fleeing from justice. Extradition procedures are to be speeded up in respect of persons suspected of committing an offence. Ireland's approach to dealing with offences is not the same as the investigative approach used in the Code Napoléonwhere the prosecution and the investigation are part and parcel of the same procedure. Can the Minister ensure no investigation takes place when an extradition has been allowed for a prosecution? I do not believe it is possible because we have neither equivalent jurisdictions, equivalent criminal justice systems nor equivalent procedures in operation.

I regard that as a rather flimsy statement by Ireland. It provides a fig leaf of safety that presumes nothing can happen because sufficient protections have been provided and everything is hunky dory. I do not believe that can be accepted because there is no mechanism for checking after the event. I ask the Minister to address that issue. Is the Minister aware of any monitoring mechanisms being used in the European Union? Will the Minister say what sort of data will be compiled about the requesting jurisdictions?

I wish to deal with the issue of dual criminality. The Minister states that he had some difficulty with the fact that there were 32 offences other than those which are dual offences in each of the jurisdictions of the European Union. He states that his concerns were allayed when he discovered that all 32 of the additional offences were offences in this jurisdiction but that is not the case; they are not offences in this jurisdiction.

The first offence listed is that of participation in a criminal organisation. There is no such offence in this jurisdiction. Such an offence is dealt with under the Special Criminal Court but we are not dealing with that court. I ask the Minister to correct his statement to the House. I am amazed the House has been debating this issue of membership of a criminal organisation every Monday, Tuesday and Friday for the last week and will do so again—

That is correct.

—in the hearings of the Joint Committee on Justice, Equality, Defence and Women's Rights. The Minister is on record in the media as stating that he has great difficulty with this issue of an offence of participation in a criminal organisation. He has said it cannot be defined and a proper statutory offence cannot be provided. In his latest statement he said he would re-examine it. Now he has told the House that it is part of the law of the land. The issue concerns dual criminality in the jurisdictions of the European Union and 32 other offences, including the first on the list about which the Minister has grave doubts, and whether this can be incorporated into Irish law. He has told the House he is not the least bit worried because he is satisfied all these offences are already part of Irish law.

The Minister is talking off the top of his head about these matters, as he does about so many others. Today it is one thing, and tomorrow it is another but it is not the way to do business. The Minister should outline his position on this issue, which is most serious and should have been addressed by now. He should already have come up with proposals to deal with it. It appears he is prepared to accept the EU's approach to these fundamental issues of criminal justice, across the board. This is the same Minister who spoke out so strongly about the wonderful principles of our common law system and the great strengths of the Constitution, and who said that under no circumstances should we allow them to be undermined or tainted by notions from mainland Europe. When a fundamental issue arises, however, lip service is paid to safeguards without sufficient mechanisms to ensure they will be put in place. Neither is there any mechanism to ensure that a hearing of an application will take place, or that the results of such an application can be monitored. We are buying a pig in a poke. The Minister's U-turn is amazing because when he goes to Brussels he is able to accept EU proposals without any substantial change. Such changes are needed, however, to provide for safeguards, which are currently non-existent.

There are question marks over the constitutionality of this legislation which proposes to change profoundly the existing legal mechanisms. The Constitution commits us to granting all citizens due legal process including a fair hearing, so in a sense we will diminish that commitment by allowing other jurisdictions to deal with our citizens in a fashion that would amount to far less than the normal burden of proof to be expected. If we further allow the law of speciality to go by the wayside, whereby somebody can be charged with another offence in the jurisdiction to which they are extradited, it will raise another serious question. If a request does not come through relating to the specific offence, how can one allow such a matter to be prosecuted? What are the safeguards in such a case? How can one possibly prosecute an offence without investigation? Therefore, any new offence that could possibly be dealt with, without being referred to in the order, must, of its nature, be tainted in procedural terms and will give rise to further questions about the constitutionality of the Bill.

The issue with which we are dealing points up the lack of effectiveness in our procedures for dealing with EU Framework Documents and directives. We will have to tighten up the procedures and provide far more resources to ensure that we are not faced with a fait accompliin future. It is incredible that we are bound to pass this legislation because of events that have already taken place. We have reneged on our commitment to provide adequate scrutiny of EU proposals. If the Bill is enacted, we will be diminishing the protection normally accorded to our citizens by the mechanisms accepted as the modus operandi for transmitting and executing court orders. We are not putting in place adequate safeguards, including monitoring procedures, to ensure that no wrong is done to anyone who is extradited on foot of one of these orders.

I move amendment No. 1:

To delete all words after "That" and substitute the following:

"Dáil Éireann:

– noting that the European Arrest Warrant Bill 2003 is designed to implement a Framework Decision of the Council of the European Union that is part of a Package of hastily developed wide-ranging draconian measures known as the EU Anti-Terrorism Roadmap;

– noting that human rights organisations including Human Rights Watch have warned that the measures proposed in this Roadmap including the EU Arrest Warrant could violate human rights norms;

– noting that the Irish Human Rights Commission has raised similar concerns that the measures were developed without giving adequate consideration to human rights and civil liberties standards;

– noting the analysis of the Human Rights Commission which concluded that the Framework Decision on the European Arrest Warrant itself is based on a flawed presumption of effective and equivalent protections of accused persons' rights between EU member states;

– noting also the Human Rights Commission's conclusion that the original scheme of the Bill paid insufficient regard to the protection of human rights, and that even with the safeguards now included in the Bill before the House is still likely to diminish constitutional protections in relation to extradition;

– concludes that the Bill before the House unacceptably negates certain fundamental rights including the right not to be extradited for a political offence;

declines to give a second reading to the Bill.".

I wish to share time with Deputies Finian McGrath and Eamon Ryan.

Is that agreed? Agreed.

The Bill will simplify and expedite extradition between EU member states. It is obviously considered by the Minister and others to be an essential element of the so-called EU anti-terrorism road map but it will undermine long-standing and hard-won civil liberties and basic freedoms. For this reason, Sinn Féin called a vote against the proposed framework decision on the European arrest warrant when the Government rushed it through the House two years ago, at short notice after an hour's debate from which the sole Sinn Féin Deputy was excluded.

This is a controversial measure and perhaps the Minister is right in saying it is mandatory because of the earlier rushed debate. However, many other regulations and EU directives are not being rushed through the Oireachtas, despite the deadlines involved. For example, we are now in breach of the EU race directive, so there is no need for us to rush this legislation through the House so that it can come into effect on the date the Minister has specified. Given the amount of legislation coming before the House, we will probably be in breach of many EU regulations until we have the proper resources for committees, including the Oireachtas Joint Committee on European Affairs.

If we refuse to proceed with this Bill we will not be the only State in breach of the EU directive because only four EU member states have so far passed the necessary legislation. In Germany, lawyers have mounted a legal challenge to the legislation which would give effect to the framework decision. Significantly, our own Human Rights Commission has produced an opinion to the Minister, which should be taken into account by the Government and the House. The commission concluded that the framework decision is based on a flawed presumption of effective and equivalent protections of accused persons' rights between EU member states. It concluded that the original scheme of the Minister's Bill paid insufficient regard to the protection of human rights. It further concluded that even with the safeguards now added, the Bill before the House is still likely to diminish constitutional protections regarding extradition.

For our part, Sinn Féin believes certain rights are unacceptably negated by the EU arrest warrant proposals before the House. We are not convinced that the safeguards introduced are adequate. We therefore remain strongly opposed to this Bill and to the securocrat, EU-federalist agenda it represents. The Government should not have backed the framework decision in the first place. The resulting legislation is irredeemably flawed and insupportable.

I strongly disagree with the Labour position as expressed by Deputy Howlin in the 2001 debate, although I welcome the fact that the party has now adopted a more acceptable position. In 2001, Deputy Howlin said that the measure successfully balances the need for security with freedoms and civil liberties.

Deputy Costello is getting more power.

I had more time to read it.

At least he has changed the view and he explained the reason mistakes were made in 2001 but I believe the opposite is the case. There cannot be a trade-off between security and people's freedoms. True human security can never be achieved where basic rights are limited or eroded. Rights and security are inherently indivisible.

The Secretary General of Amnesty International, Ms Irene Khan, expressed concern earlier this year, and she is worth quoting at length. Deputy Deasy, who has left the Chamber, called earlier for a fortress Ireland approach but Ms Khan stated:

Governments around the world have spent billions in an effort to beef up national security and the "war on terror", but for millions of people the real sources of insecurity were corrupt and inept systems of policing and justice; brutal repression of political dissent; severe discrimination and social inequities; extreme poverty and the spread of preventable diseases. . . . The "war on terror", far from making the world a safer place, has made it more dangerous by curtailing human rights, undermining the rule of international law and shielding governments from scrutiny. It has deepened divisions among people of different faiths and origins, sowing the seeds for more conflict . . . It is vital that we resist the manipulation of fear and challenge the narrow focus of the security agenda. The definition of security must be broadened to encompass the security of people, as well as states. That means a commitment to human rights.

Amnesty International's view is also reflected by Human Rights Watch which warned in its 2002 annual global survey that the so-called war on terror has inspired "opportunistic attacks on civil liberties around the world". In its comments on the proposed EU-wide security measures it specifically cited the lack of fair trial guarantees in the EU arrest warrant proposal as possibly violating human rights norms.

The increasingly widespread conclusion that we are compelled to sacrifice basic rights in pursuit of a so-called war on terrorism is symptomatic of a broader ideological shift taking place in the democratic world. It is a disturbing shift that actually brings us closer to the undemocratic regimes we oppose. It also reflects a potentially disastrous approach to security that will not succeed in preventing further unjustifiable actions such as the assault on civilian targets in the United States on 11 September 2001, and may have the opposite effect. That is a matter of deep concern for Sinn Féin.

Statewatch, the non-governmental organisation dedicated to monitoring civil liberties in the EU, believes the so-called war on terrorism has turned into an ongoing war on freedom and democracy that is setting new international norms, curtailing and rolling back accountability, scrutiny and rights protections. It argues trenchantly that the so-called war on terrorism has replaced the Cold War as a legitimate ideology in both the EU and the US for the re-emergent predominance of security, allowing what were formerly considered emergency powers to become the norm.

The director of the British Institute of Race Relations has further argued that while globalisation has set up a monolithic economic system, with all its faults – we can debate that issue another day – the response to the events of 11 September threatens to engender a monolithic political culture, and together, they spell the end of civil society. Let us be clear. The EU is an active protagonist in shaping this new ideology and giving it operational effect through measures such as those we are debating today.

While it would be easy for some Deputies to agree with the Bill on superficial consideration – none of us wants serious crimes such as rape and murder to go unpunished – that is not what Sinn Féin is suggesting in its opposition to this measure. We have a responsibility to decide our position on the Bill in a proper context, which is one of the legislative measures that form the EU anti-terrorism road map hurriedly agreed in the weeks following the tragedies on September 11. The EU arrest warrant was considered so central to the EU action plan it was proposed for fast-tracking, together with its companion legislative measure which has already come before the House, the Terrorist Offences Bill giving effect to the establishment of a common definition, which itself has been widely criticised including by our own Human Rights Commission as being too broad in scope and infringing on the legitimate right to opposition. The road map measures have far-reaching consequences for the rights of Irish citizens and citizens within the EU and, as such, they deserve far more scrutiny by this House than has been the case to date.

I am not just concerned about the political and ideological context of the Bill, and I will table amendments on Committee Stage to deal with some of the issues, but my concerns also include the planned abolition of the dual criminality requirement for a list of 32 crimes; the inclusion of terrorism on the positive list in the context of the overly-broad EU common definition I mentioned earlier; the removal of the traditional category exemptions from extradition, including political offences; the proposed limits on the so-called specialty rule; and the fact that it authorises the illegitimate, internationally criticised Special Criminal Court to order an EU arrest warrant. It is time this no-jury court was abolished, not further reinforced by new legislation. The Minister criticised it when he said that "a jury trial . . . is one of the chief guarantors against oppressive misuse of state authority". He needs to make up his mind. It is either one or the other. I will come back to that aspect on Committee Stage.

I welcome the opportunity to speak on the European Arrest Warrant Bill 2003. Before I go into the details of the Bill, it is important to remind the Minister of some basic core principles on human rights. I realise it is not very trendy or fashionable to raise issues of human rights but the day we turn our backs on the rights of our citizens is a bad day for those of us who support social justice and democratic values.

This debate allows us the opportunity to set the record straight on this important issue. Those of us who demand high standards in terms of the rights of people are not the enemies of our justice system. It is important to record that. The primary goal of the criminal justice system is to protect society from conduct that injures its members. The way in which that protection is structured and delivered is crucial. A criminal justice system can range from respecting the rights of all those affected by it to becoming an instrument of oppression and prejudice. It is vital, therefore, that we are constantly vigilant to ensure that in our outrage at acts of violence, cruelty or abuse, we do not rush to judgment. The task is to establish and maintain a system which protects those suspected or accused of wrongdoing from being exposed to laws or rules of evidence which fail to protect their rights under the Constitution, the European Convention on Human Rights, recently incorporated into domestic law, the International Covenant on Civil and Political Rights and the wide range of other applicable international human rights instruments.

Offences must be designed clearly to ensure that people know when their conduct is likely to fall under criminal sanction. The Supreme Court made this clear in the King decision in 1980, when it held that Articles 38.1, 40.1 and 40.3 of the Constitution had been violated by an offence whose ingredients lacked clarity. The European Court of Human Rights also requires clarity of definition.

Prosecutions must be proved beyond reasonable doubt, which means, and is intended to mean, that those against whom there is reasonable suspicion that they may have committed an offence, will be acquitted. The criminal justice system is premised on restraint by society in the exercise of its awesome powers of individuals. The injustice and harm done to innocent people are so serious that the bar for successful prosecutions is set as high as is necessary to remove the risk of the conviction of the innocent.

The purpose of the legislation is to give effect to the provisions of the Council framework decision on the European arrest warrant and the surrender procedures between member states of the European Union and provides for matters connected therewith. The surrender arrangements for wanted persons being introduced by the European arrest warrant will replace, with effect from 1 January 2004, the existing extradition arrangements between Ireland and all other European Union member states, and will also apply between Ireland and the new accession states as soon as they adopt the necessary domestic measures, which is expected to be from 1 May 2004. It replaces, as between the EU member states, the existing extradition arrangements based on the Council of Europe's 1957 European Convention on Extradition with a simplified surrender procedure.

I note that the European Arrest Warrant Bill 2003 is designed to implement a framework decision of the Council of the European Union, which is part of a package of hastily developed, wide-ranging, draconian measures known as the EU anti-terrorism road map. Human rights organisations, including Human Rights Watch, have warned that the measures proposed in the road map, including the European arrest warrant, could violate human rights norms.

The Human Rights Commission has raised similar concerns that the measures were developed without giving adequate consideration to human rights and civil liberties standards. Its analysis concluded that the framework decision on the European arrest warrant is based on a flawed presumption of effective and equivalent protections of accused persons' rights between EU member states. It also concluded that the original scheme of the Bill paid insufficient regard to the protection of human rights and that even with safeguards now included in the legislation, the Bill is still likely to diminish the constitutional protections regarding extradition. This legislation unacceptably negates certain fundamental rights, including the right not to be extradited for a political offence.

I will not take moral or ethical lectures on the issue of extradition from other Deputies or from countries such as Britain and Spain which have been directly involved in acts of state terrorism. The same standards also apply to countries such as the United States. While we are discussing the subject of terrorism, I draw the attention of the House to the case of the Miami Five towards whom many European countries are acting in a hostile manner. We should not forget this group of five innocent Cubans who were trying to stop right-wing, Miami-based groups from carrying out violent actions against the people of Cuba. They were found guilty of charges ranging from murder to espionage by a court in Miami, which relied on the evidence of right-wing paramilitaries and all are innocent of the charges brought against them. Extensive intimidation of jurors by the same right-wing groups was a feature of the trial and the five are appealing their convictions. I call for the release and exoneration of these victims of a miscarriage of justice. The campaign on behalf of the Miami Five is dedicated to the memory of the 3,478 Cubans killed and 2,099 maimed at the hands of US-based terrorists since 1959.

These and similar issues are linked to this debate. There appears to be silence on certain types of violence, particularly when states are involved. Human rights and democratic principles can never be sacrificed for a political agenda – it is not acceptable. This legislation is an attack on fundamental rights and, as such, I will vote against it.

Some people may go as far as to argue that the European Arrest Warrant Bill is a new and efficient way of bringing back suspected criminals who have fled abroad and persons convicted of grave crimes. Some might argue that it will bring faster and simpler procedures and that it is a more accountable system since countries can no longer refuse to surrender their own nationals. As good as this may seem on the surface, I cannot avoid asking what it is we are bargaining in exchange for such efficient procedures.

Our law has been based on the development of judicial decisions over centuries and is best known as common law, whereas other member states have a system based on a single code of law – civil law. Common law has one major advantage over civil law, namely, it traditionally protects the rights of individuals. I fear we are sacrificing our common law for the sake of harmonisation and creating a danger that individual rights and liberties will be violated.

This Bill is based on trust – we trust other member states and they trust us – and based on this, we should not concern ourselves with citizens being mistreated. If only the matter was this simple. The fact that member states have a different legal framework guarantees that this trust factor will not be effective.

I turn first to the issue of dual criminality. Countries have different historical and cultural frameworks and democratically elected governments in the European Union have varied positions on what we describe as ethical issues. There is no clear consensus as to the acceptability or criminality of issues like euthanasia or abortion. A positive list of 32 offences set out in the Bill will not have to meet the requirements of dual criminality. The offences will have to have at least a three-year maximum sentence. The positive list has been criticised for being vague and could, therefore, be open to wide interpretation, with such conduct as "swindling" mentioned on the list.

Murder is also named on the list and although we all agree that murder is a crime, it is important to note that one man's euthanasia is another man's murder. A cocktail of a wide variety of cultural and legal backgrounds in the European Union clearly shows that even the most obvious common ground does not stand up to close scrutiny.

Article 6 of the European Convention on Human Rights, the right to a fair trial, can be challenged in this debate. The application of Article 6 of the convention has been breached in some countries, many of which do not provide defendants with a right to trial by jury, while others allow trials in absentia. In some jurisdictions, it is not uncommon for judges to consent to the detention of suspects where there is insufficient evidence for a prosecution, but they proceed to do so in anticipation that evidence will turn up in the foreseeable future.

It will be difficult to monitor other legal systems to ensure the right to a fair trial. Trust of other legal systems and accepting and recognising the decisions of each other's courts is not sufficient to ensure this right is not breached. Section 37 of the Bill refers to person convicted in absentia, which is worrying. The fact that a person cannot argue for a new trial on the grounds that he or she was inadequately represented at the previous trial is clearly wrong. In addition, there are no provisions allowing for an appeal against in absentia judgments. This problem is further exacerbated by the inconsistency of sentencing practice across Europe, which needs to be resolved.

The Bill also raises questions concerning the issue of legal aid. The Bill states that a person may have a lawyer and, if necessary, an interpreter, as provided by the country in which the person has been arrested. Legal aid is dealt with differently by the member states. The right to legal representation is in accordance with the law of the member state, which varies from country to country. What guarantees do we have that legal aid will be consistent in each country and that a person convicted will receive equal representation across the board? Is that right also based on trust?

The Green Party is also concerned about section 10 and the transmission of a European arrest warrant. There are provisions in the Bill for speeding up the transmission of a request through the Schengen information system. That system allows for an alert to be put on the system, thereby informing executing states of extradition orders. Under the Schengen regulations, the executing state can place a flag or a hold on this alert, thereby informing the issuing country that it will not arrest the person. However, the Bill will severely restrict the grounds for placing this flag.

We are also concerned about the provisions in section 12 which relate to an arrest without warrant on grounds of urgency. This section is of most concern to us because a person can be arrested without a warrant for an offence where a Schengen alert has been reported. It is inevitable that people could be subjected to arbitrary arrest under such a system since no evidence of wrongdoing is necessary before the person is arrested.

Section 18 deals with the surrender of a person by an issuing state to another member state. We are concerned that the time limits do not make any allowance for decisions to be challenged in the European Court of Justice. The Green Party feels it is imperative to state in the Bill that there is an option to appeal to the European Court of Justice.

Section 29 should be amended to prohibit extradition to places where discrimination may take place due to other status and not just on the grounds listed. That is included in the European Convention on Human Rights. The Green Party recommends that membership of a trade union should be included under section 29(1)(c)(i), something which is already provided for in the Refugee Act 1996 under the definition of a convention refugee. This would ensure that those who are members of a trade union would be protected from discrimination. I remind the Minister about the case of Price v.UK Government where there was degrading treatment in violation of Article 3 because of the lack of facilities in a UK prison to deal with the special needs of a disabled woman. It would not be possible to extradite someone if jail conditions were in violation of Article 3 of the convention. I would also be interested to hear from the Minister about the provisions in the Bill to protect those with a severe mental illness from being treated less favourably.

The harsh reality is that different legal practices apply in each member state. There are no guarantees that a person arrested in Ireland to be tried in another country will have the same rights as those arrested in another country. There are too many inconsistencies in the legal frameworks which make up the EU states and trust is not enough. The arrest warrant has all the ingredients of a fast track process. The fact that Ireland was not consulted in advance about the contents of proposals for the European arrest warrant highlights that.

In the 1980s there was considerable controversy in a number of highly political cases when the Supreme Court refused to extradite Irish citizens on the grounds that it was felt they might be subjected to mistreatment by the British authorities and not receive a fair trial. Today we are discussing a Bill which will greatly diminish the court's power to refuse an extradition request. The courts will be unable to rely on previous jurisprudence relating to extradition law and basic safeguards therein.

When the arrest warrant was first proposed at the Tampere Summit in 1999, it was considered that a sufficient timeframe would be needed for legal systems to be harmonised. A period of ten to 12 years was proposed. However, after the events of 11 September, the draft was soon formatted and within three months it was agreed by 15 Governments. The Bill has all the ingredients of a knee-jerk reaction after 11 September. It is difficult to accept that the work of 12 years can be condensed into four.

A short time ago the Minister publicly criticised Deputy John Bruton for supporting the erosion of Irish constitutional rights. It is ironic that the Department of Justice, Equality and Law Reform is introducing a Bill today which is a prime example of how our extradition laws have been rewritten behind our backs. However, the Government deserves some credit for raising principled objections to the framework decision at the final drafting stages. I hope the Government takes our concerns on board and ensures that our devotion to Europe is not allowed to compromise our basic freedom as Irish citizens.

I do not have a legal background, therefore, I may ask questions about the Bill. It is right that questions are raised about such a wide-ranging and technical Bill. Some people disagree with the concept of such an agreement and Bill. As regards what Deputy Finian McGrath said, I am not giving a moral or an ethical lecture to anyone. I have never done so and I hope I will not do so in the future. However, I will express my views on the Bill.

The primary goal of the justice system is to protect all citizens. I want to ensure that everyone, including the elderly, those whose shops have been broken into and those who are vulnerable, are protected. It is easier and more popular to quote high profile cases than to pursue the rights of the citizens, which are disregarded night after night by different groups for different reasons. I will not lecture anyone, but I will defend the right to argue for justice in the system.

Deputy Deasy spoke at length about the country's inability to defend itself. He referred to last week's newspaper article which stated that this country could be a soft target for international terrorism. Every country is a soft target. We saw that in Turkey and in countries which are supposed to have the greatest security systems in the world, such as the USA. We should realise that every country is a target. We will either fight against international terrorism or we will accept it and become a soft target. We are faced with options. The best defence is not arresting people in airplanes, but international co-operation among police forces and justice systems.

Those of us who were interested in preventing a drug epidemic 15 or 16 years ago received international briefings. We were made aware of the drug trafficking routes, etc. However, when an attempt was made to take appropriate action, civil liberties groups and others wanted to know what would happen to the farmers who grew the poppies and by what means their incomes would be supplemented. Everything went downhill from there. Now everyone is familiar with the problem and everyone knows what must be done. We must take action and the best way to do that is through co-operation. We have seen the need for that in this country.

Deputy Costello was right when he expressed concern about the constitutional rights of our citizens. That is also true of other EU citizens who could be affected by such legislation. Deputy Ó Snodaigh and others were concerned about the lack of discussion on the topic. We have dealt with the issue of extradition more often and at greater length than any of our European partners. We had the same level of debate as those countries where the debate centred on extradition for war crimes. The debate on extradition was always highly emotive.

I am talking about this Bill. That is the problem.

The Deputy will have an opportunity to speak again. If the Deputy wants to discuss the reasons, I will do that.

I do not have a problem with that.

The Deputy said there was no debate on the issue of extradition.

No. I said there was no debate on the Bill.

We have debated that ad nauseam. Some of the Deputy's fears were adequately debated in the past, even if it was only in the Irish-British context. People who were not interested in or affected by this subject took an interest in it. There were debates on the issue and people got involved. The end result was that this country hammered out a process which was examined minutely to ensure it protected the individuals involved. We had quotes from the speaker from the Green Party about previous technical difficulties, but when speaking earlier the Minister said electronic traffic of warrants is permitted. Is that correct? We had a refusal on the basis of photocopies being used, which was ridiculous. I appreciate the concerns of other people who said the warrants could be tampered with, but is my original point correct?

We have a duty to take every possible action to fight international crime, whether it is terrorism or any of the other crimes listed. We have failed to do that in many instances, primarily because of what is loosely described as the civil liberties argument. I have said on many occasions in the past that I have found none of these people concerned about the victims of crime. They are experts on high profile cases and the international situation, but when it comes to the mundane protection of the ordinary citizen they suddenly lose their voices, which concerns me. We cannot continue simply lamenting this and writing articles about it – we must be willing to fight it. It is easy to enter this Chamber for the purposes of lambasting the Minister for Justice, Equality and Law Reform on what he has said about other issues, but this is a stand alone issue.

Everything he gets he deserves.

Perhaps the Deputy believes that—

He will continue to get it.

I am not familiar with the Dublin localities and the feeling on the ground. Some of these matters may be parochial and the criticism may refer to areas of Dublin rather than national and international issues. Preaching liberal views are a good thing, but it is much harder to protect the victims.

Is the Deputy a liberal?

The victims must be attended to.

Without the mechanisms to fight crime it is impossible to proceed. It is fine to come here looking for 2,000 or 4,000 gardaí, but if they do not have the correct ammunition – I am not referring to ammunition for their guns – to deal with crime, they will be helpless. It is an accepted fact internationally that people who do not want to be policed will not be policed. That has been proven many times. One cannot win with force of numbers.

That does not augur well for the future.

I did not here what the Deputy muttered.

I said that does not augur well for the future.

The Deputy should not be shouting across the Chamber.

I hate to keep referring to Deputy Durkan's own term in office, but he had the chance to do something about this and did nothing.

We did do it.

The record is there. The Deputy should not side-track me. This is an international issue with which we must deal.

The Deputy was a very relieved man this week.

An Leas-Cheann Comhairle

There should be no interruptions.

I do not mind admitting that I have been relieved during the last seven years here. For four and a half years I worked for a wage of £79 a week as a voluntary worker. I would have kept that job if I lost my seat.

An Leas-Cheann Comhairle

The Deputy must be allowed to make his contribution.

I am totally supportive of the democratic process.

I bet the Deputy is.

I have never forced anyone to do anything under threat or in any other way. I am a democrat. I am a relieved man and I am delighted the democratic process has been seen to work. That is why we should support it unconditionally.

Was the Deputy in Deputy Fahey's group? Was he one of the "frightened 40"?

An Leas-Cheann Comhairle

Return to the Bill.

This is revisionism.

I have listened to a range of people who, perhaps for their own historical reasons, have put their point, with the exception of Deputy McGrath, who did not want to be lectured. I presume Fine Gael is supportive of this. One or two of the smaller groups are against it. I do not know where the Labour Party stands on the Bill.

The Deputy is putting us off it.

They should have a simple layman's look at the Bill, although I do not want to over simplify it.

I see technical difficulties regarding interpreters. Is there a unit dealing with all requests for warrants, as there was disarray at the outset? Will that technical section need to be reinforced? We are speaking here of the need for a range of languages. We all know the difficulties that can arise, such as the case where the warrants were thrown out because photocopies were used. It is obvious that there was a language problem in that case. Can the Minister tell me if that has been provided for and how that section will be reinforced? That is one of the practical difficulties. Instead of arguing for civil rights, it may be as well to concentrate on that difficulty.

One of the reasons set out in section 12 for not executing a warrant is when there is a question about the age of the person concerned in the application. I did not know there were such conditions. I know of cases that have been dismissed as a result of statements against a person who was too old or for various other reasons. However, I did not realise there was a specific definition regarding age in terms of applications. Can the Minister tell me if there is such a law or if it will be determined when the warrant is produced?

Regarding rearrest, which was raised in the context of previous legislation, are there safeguards to protect the individual? If the warrant is issued or if the person is added to the list before the warrant is issued, particularly under the SIS, can they be held after the eight or ten day limit provided for before the warrant is supplied while further information is being sought? That was the position in the past. In other words, can they be held indefinitely or must they be released after a given time?

A primary and practical concern is that the right to a fair trial can be prejudiced by the wrong publicity in the media. The media have been at fault in this, as in the past there have been rulings in at least one or two cases where the trial was prejudiced by the previous profile the case was given in the media. There is nothing more high profile than someone being extradited, as we witnessed in the past week. Is there any mechanism for protecting a person in such a case? Notoriety is synonymous with arrest and can cloud the judgment of a jury. Is there any ruling, such as exists in juvenile and family cases, whereby details may not be released?

I appreciate the Minister has suggested he is going to deal with leaks from certain sources, but if somebody is exposed in a high profile case it could be prejudicial to their trial. I believe in the principle of a person being innocent until proven guilty.

The question of dual criminality has been covered already. Historically we have had difficulty with political offences, but it was eventually dealt with at length. I would like to hear more on this issue. Any offence that incurs a sentence of four months is categorised as serious, but this seems a very short sentence to include under the category of serious offences.

We have failed to deal with this since 1957. We were probably dealing with other issues. People can argue for a tightening up of the process but those who say there should be no process at all concern me greatly. The whole thing has been going on far too long. We are all aware that international terrorism and crime know no boundaries – I am preaching to the converted. If we do nothing to counteract it by co-operating with the good guys against the bad guys then we are adding to the crime and aiding the criminals. It is no good for Deputy Finian McGrath to lecture me on the primary goal of the justice system if I refuse to do anything to prevent the crime.

To return to technical matters, the Director of Public Prosecutions issues the warrants, which can be given to any court. Does that mean all warrants will go through the same source? I do not expect thousands of applications, but will the system be beefed up to cope with this? The Minister said it would be done by a central authority – will that be the Office of the Director of Public Prosecutions?

I appreciate the Minister's point that this is a mandatory action, although the argument has been made that there are other issues that have not been dealt with. Last Wednesday one of the questions asked was about the number of treaties and so on that Ireland had not yet implemented. There was significant criticism of the Government for this. Does Deputy Ó Snodaigh think he should be permitted to decide which we implement first? This is an attempt to deal with one of them so the next time the list will be shorter by one. We should keep the pressure on so that all other such legislation is implemented, whether they deal with social affairs, equality or anything else. We have delayed things too long. People should consider their own behaviour.

I had many questions about the legislation but most of them have been asked already and I am sure others will be asked later on. These questions concern the European Arrest Warrant, the International Criminal Court and so on. Some people talk about the European monolith. I am proud to be part of the European monolith.

We are talking about the Minister.

I can remember the days when this country was dragged down primarily by the loss of our people. I was one of those who had to go. I did not have a safe, cushy job or somebody who could hand on the silver spoon. I had to go and I understand more than most what this is like. We have turned that around. When I say "We", I am talking particularly about the last two Governments. People may praise them – I do not mind. This country has turned itself around. There can be no argument about the primary reason for this, which is our membership of the European Union. If we want to criticise the EU we should recognise this fact. We may criticise parts of it but they are very few. It has instigated a massive amount of social legislation that we would not otherwise have. If we are to knock the EU we must give it the credit it deserves. I am quite happy to do that because the EU has brought us a long way.

I totally support the need for extradition of suspected criminals where there is evidence against them. The issues raised by various Deputies must be considered. They are legitimate concerns, although several of them have already been put to rest. It is to be hoped that process will continue. I commend the Bill to the House and hope it will be passed before another ten years has gone by.

Like many other speakers I give more than a guarded welcome to the Bill because I understand the significance of what is being attempted, although many of my colleagues on all sides of the House have legitimate questions to ask about this legislation. As a result of our membership of the EU we have been able to integrate at a certain level the various cultures and lifestyles of millions of people. I do not mean, however, that individual countries do not have their own views and cultures. That is one of the reasons many people are worried about legislation such as this – something that is seen as absolutely normal in the Netherlands would not be normal here.

There is a basic thread running through all this. People who terrorise the world and commit serious crimes at other people's expense – injuries, death, torture and so on – cannot be ignored. No one is arguing that we should stay outside this process. Over the years there has been reasonable integration within the European Union in many areas of life. This takes a long time to happen and we must be extraordinarily careful that we do not remove from people rights that are regarded as basic human rights in their own countries.

The list of 32 crimes includes terrorism, corruption, kidnapping, racketeering, rape, murder – one could not call it a list of virtues no matter how one looks at it. People within the EU decide to get involved in these crimes irrespective of their nationalities. They do much damage and inflict great pain at personal and national level. I am no expert but in my view we should stand up for natural justice.

Given the unique basic principle of the Treaty of Rome, involving the free movement of goods, people and so on within the EU, it might be expected to be much more difficult to control criminals at a certain level, particularly international criminals, than it has ever been before. That is how it is working out. Crimes are being perpetrated at the moment that could not previously have been imagined even by people like me who have been around for a long time. Those over 30 grew up in a world in which events such as those of 11 September 2001 or the bombing in Turkey a few weeks ago were completely unknown. Terrible atrocities were committed during wars but not in the civilian world. There is no doubt these crimes are perpetrated by gangs of organised criminals. One can argue until the cows come home about why they might do such things, but those who suffer from these crimes never have anything to do with what actually happened. One can clothe that conclusion in any legal language one likes but it is always true.

Deputy Costello's comments were interesting and he made sense.One wonders what input, regardless of what Minister is in office, this country had into this legislation. I know some Irish proposals and amendments were submitted in Brussels or in Strasbourg before the legislation arrived here for consideration. Was it a fait accompli handed down to us by the bigger states on the basis that it would suit Ireland? What sort of punch did we carry for those aspects of the legislation we did not like? A number of matters could raise serious doubts in people's minds. In the overall context, however, the Bill is right in its assertion that the key objective of the European Union is the creation of an area of freedom, security and justice.

I have always been an advocate of the European Union and I have seen nothing in recent years to dissuade me from that position. It has its faults and there are occasions when our membership of the Union inflicts certain pain on us, but by and large it has been good. If one does not support the concept of this Bill, of what is one in favour? What are we arguing for? I would like the Minister of State at the Department of Justice, Equality and Law Reform to indicate how many other countries have already ratified this piece of legislation. How many countries have gone to the stage of bringing it to their national parliaments, as Ireland has? As with currency matters, is it possible that a few states will not ratify it, but for what reasons? Some states might want the contents of the Bill currently being considered by the Oireachtas watered down on the grounds that it is too draconian in their view. We were told many times in the past, particularly as regards currency matters, that every country had to follow the band. However, they did not, and the sun still shone the next day. I did not see the sky falling. It is against that background that I would ask the Minister of State, when replying, to give us some indication of what is happening elsewhere as I assume that is well known at this stage.

It is important from the viewpoint of the big bad world of criminality that our police force and judicial system is as much in tune as possible, across Europe and throughout the world. Sometimes it can be argued that we are isolated and that as an island nation we have a great many problems other states might not have. It is difficult for us to control our coastline, for instance vis-à-vis the importation of drugs and allied matters. We do relatively well but once one hears that a consignment of drugs has been detected, one may be sure at least four or five others have not. Everyone accepts that.

Some people ask what are the chances of a major hit on Ireland on a Richter scale of one to ten, the kind of atrocity that occurred in Istanbul the other day, for example. I have no idea. One wonders if anyone knows because it is a difficult question to evaluate. People wonder if the chances of a hit on Ireland are increased by the fact that we subscribe to this legislation. I do not believe that to be a reason for not passing the Bill. It is certain that if terrorists want to strike, they will strike. It would not be good to be isolated from the rest of Europe in that sense. Some connect the issue to neutrality. I cannot see the connection because what could potentially happen in any city in Europe could happen here as well. I do not believe such criminals would take the slightest notice of the word "neutrality" if it suited their purpose.

We are a small nation with limited resources in the overall scheme of things. It is up to the Government to ensure that the type of legislation we are accustomed to is adhered to. By and large we have performed well within our legal norms and we would like to think that where Irish nationals are involved in court cases or whatever, the same norms would apply. That is what this is about, the possible integration on a Europe-wide basis of the rules and regulations we accept as being normal. I have no idea whether or how quickly that can happen, but it is important to insert stringent precautions. In fairness to Members on both sides of the House that is why so many questions are being raised on this legislation. Many will be eager to hear the Minister of State's reply as they support something of this magnitude which affects so many people. No matter what we say about integration in Europe, nationalism still flourishes alongside individual cultures and so on. Many people will want to know just how strong are the safeguards to protect Irish national interests. The other member states will want to know how we would deal with matters here.

I have little knowledge of the technical issues involved. However, I recall the high profile cases of the early 1990s when people were being extradited from England to this jurisdiction. The smallest irregularity was sufficient to annul a warrant such as a photocopier not working correctly or whatever. Such matters made the gardaí and the judicial system look silly. The general response at the time was: "Why did you not get it right?" I sincerely hope, whatever arises from this legislation that extraditions are carried out properly. The above cases gave rise to a complete lack of confidence at that time in the State's ability to extradite anyone, from anywhere. In the context of this legislation I trust all matters of this kind will be resolved. The Bill is for the betterment of Europe and Ireland, but we will have to be careful.

I am grateful for the opportunity to speak on this Bill. The Minister for Justice, Equality and Law Reform, Deputy McDowell, stated that the European Union is built on democratic principles and the rule of law. This is characterised by the free movement of persons, capital goods and services throughout the Union. It would be a fallacy not to recognise that it is also characterised by the free movement of criminals – international as well as Irish – throughout the European Union. I would hope some of that movement can be addressed through this legislation. While Fine Gael is broadly in favour of the legislation, the party has serious concerns about some of its provisions. I will indicate some of these in my contribution.

There is currently a series of different extradition arrangements throughout the European Union, including the 1957 convention. There are special arrangements between Ireland and the United Kingdom where we have had a strong relationship for many years, particularly in regard to the extradition of terrorists from one side of the Irish Sea to the other. A similar arrangement is in place in both the Nordic and Benelux countries. I will return to the Benelux countries later.

The impression has been given that this is a Fianna Fáil-Progressive Democrats initiative. It is not. The EU Council of Ministers came up with the proposals before us. They arise following the atrocities committed in the United States on 11 September 2001. They are concerned, in principle, with strengthening internal co-operation throughout the European Union. It is something we must recognise and take note of in light of the fact that we are now expanding the Union from its current size to 25 members. This substantial increase in the size of the Union will give criminals huge opportunities to move across state borders.

The European arrest warrant seeks to simplify procedures for the surrender of wanted persons by replacing the inter-state aspects of extradition with an inter-courts system. The warrant will take the form of a court decision in one member state addressed to a court in another member state for the purposes of conducting the execution of a custodial sentence in the issuing member state. It applies to all offences having a penalty of more than 12 months.

People are currently trying to avoid prosecution by leaving this State. Following the death of Veronica Guerin, we all recall the exodus of many drug lords who left the country to avoid prosecution. Many of them are still at large. Will the legislation ensure that some of them will be brought home and made accountable? Given that the Minister of State comes from the crime capital of Ireland, the city of Limerick, if some of his constituents were to do a runner out of the State, can they be tracked down, brought back here and prosecuted under the legislation? Many parts of his city are becoming no-go areas.

That is not true. Limerick is not the crime capital of Ireland.

The Minister of State will have an opportunity to respond later. Under the legislation, the dual criminality requirement is being watered down. Perhaps the Minister of State will elaborate on the types of protection being put in place to deal with crimes such as hijacking, terrorism, murder, arson, money laundering, proceeds of crime, child pornography, firearms and explosives offences and illicit trafficking of drugs, radioactive material and in human beings.

An article in one of today's national newspapers reported on a woman who was extradited back to Ireland from the UK five years after making a rape allegation against a man in this country. She was subsequently given a sentence, which I will not go into. Under the proposed legislation, can such an individual be extradited back to the State from any other European country? As rape is a very serious allegation, where it can be substantiated, every effort should be made to secure a prosecution. On the other hand, where someone makes a false allegation, the same effort must be made to ensure those responsible are prosecuted so that there is a balance in the way the current statute deals with people, regardless of whether they have committed an offence or falsely alleged a serious offence was perpetrated. The Government and the governments of the other 14 member states of the European Union believe rape is a very serious offence, therefore, it is imperative that protections are in place where false allegations are made. Will the current arrangements between Ireland and the United Kingdom be extended throughout the whole of the European Union?

Perhaps the Minister of State will elaborate on the issue of dual criminality in respect of political offences. The definition of a political offence has been a controversial issue in the past. Does the legislation cover organisations such as ETA, the Real IRA and al-Qaeda? These are all terrorist organisations, and must be treated as such. I hope that under the legislation the three organisations will be treated equally.

I want to raise an issue regarding the DPP because I understand he will issue warrants. Under current legislation, the DPP cannot provide an explanation in a case where a warrant is not issued or where a prosecution does not take place. This issue should be considered in the context of either this or future legislation. There should be a mechanism available whereby the DPP can provide an explanation to the public, or to individuals, as to why a particular prosecution did not take place. This would improve transparency in the law and ensure that the majority of the public would respect the decision of the DPP and understand the reason he took a decision not to prosecute or, in this instance, made a decision not to issue a European arrest warrant.

I have concerns about the legislation. In some European countries a person can be tried initially in absentia. Part 3 of the Bill provides guarantees in regard to retrial. However, the Bill raises concerns about the way court proceedings take place in Ireland compared to other European countries. We do not have that difficulty at present in regard to the United Kingdom because our legal system is very similar to the system in place there. Perhaps, sometimes, the UK authorities could take lessons from the way we have structured our legislation. Things are differently structured on the Continent of Europe, where someone can be prosecuted in abstentia and found guilty. This raises concerns in Ireland where we do not have a similar situation. I ask the Minister of State to clarify the position in that regard.

I understand that under the legislation the Minister will perform the central authority functions, that is, the administrative receipt and issuing of European arrest warrants, as well as all other communications with other member states relating to such warrants. Will the Minister be accountable and answerable to the House if there are delays in either issuing warrants to some or all European countries, or in receipt of a warrant and the circulation of it to the Garda Síochána? The difficulty is that each time legislation is introduced here there appears to be less accountability to the House. The power of the House is being watered down on a daily basis. I hope that element of accountability is provided for in the legislation and that there will not be a dilution of the power and responsibility of the House to question the Minister on procedural and administrative matters regarding European arrest warrants. It is imperative that the protection exists so that we can question the Minister and make him or her accountable to the House. Section 4 defines corresponding offences. An issue that continually arises is that of road traffic offences, the majority of which do not carry a sentence greater than 12 months but some of which do. Will the Minister elaborate on the penalty points system? Under the current system, penalty points are attached to a driver's licence in the South whereas, if he or she goes to the North, they are not, and vice versa for a person travelling from the North to the Republic. If a person from Belfast drives on to the M50, continues to Cork and returns the next morning having collected six penalty points on the outward journey and six on the return journey, that raises serious questions on the need for a reciprocal arrangement across the Border with Northern Ireland. It is making a farce of the system otherwise. The most dangerous motorway in the country is the Dublin-Belfast motorway. The most dangerous counties on which to drive on Irish roads are the Border counties. That is due mainly to Northern drivers coming across the Border who do not respect the road traffic legislation in this jurisdiction because they know they cannot be caught.

The Minister for Transport has discussed this matter with his counterparts in Northern Ireland but we have seen no action. I hope there will be some movement on this issue. It makes a farce of the penalty points system in this jurisdiction if we cannot have a reciprocal arrangement with our colleagues in Northern Ireland and the UK from where the majority of foreign drivers come. It is the only place from which foreign drivers come. According to the figures available to me, 12% of all accidents here involve a foreign driver. That is not to say 12% of accidents are caused by foreign drivers, but they involve them. This is an issue we need to examine. Given that the number of accidents involving the Irish driving population is being reduced due to the penalty points system, the number of accidents will probably increase due to the increase in the number of foreign drivers. I define foreign drivers as drivers from outside Ireland, Northern Ireland and the United Kingdom, so they are mainly continental and US drivers.

The British-Irish Interparliamentary Body has examined this issue and produced a report in October 2003, one of the recommendations of which provides for a system whereby authorities in the driver's home jurisdiction may be notified of offences committed in another jurisdiction. Given that this legislation is before the House, consideration should be given to putting in place a reciprocal arrangement. When this or similar issues are being discussed at European level during the next six months, will the Minister for Justice, Equality and Law Reform ensure a reciprocal arrangement is put in place? It could be linked in similar to the mechanism being put in place for the European arrest warrants whereby notices are circulated to other member states. Surely a similar mechanism can be put in place for the penalty points system. There are drivers here who hold dual driving licences, namely, from the Republic and the UK. Even though they are both supposed to be European driving licences it means they can avoid attaching penalty points because they use the UK licence rather than their Irish licence.

I wish to raise the issue of drug driving. With effect from January next year, the British Government is introducing a drugalyser test which, I understand, will include Northern Ireland. This means a person can be stopped and tested for exceeding the legal limit in respect of legal or illegal drugs. What happens if a person is guilty of an offence, whether from the Republic or Northern Ireland, and comes across the Border to avoid prosecution? In the event that a person from the Republic who is on medication travels to the North and is unaware that a new system is in place there and he or she is exceeding the legal limit or that a legal limit is involved, a penalty similar to that which applies here for drink driving should apply in the North where a person can be prosecuted and serve a jail sentence as well as being banned from driving. Under the provisions of this legislation, can a person be transferred across the Border? Perhaps some of these issues could be examined when Ireland assumes the Presidency.

Part 4, section 39, proposes to amend the 1965 Act. This will enable amended arrangements to be put in place with the United Kingdom in respect of territories not covered by the European arrest warrant, for example, the Isle of Man. What is the position with other EU territories outside the United Kingdom? Will they covered under the proposed amendment? Is it the case that criminals who wish to avoid prosecution can go to some of these EU territories? They have free movement in and out of those territories. Can they be extradited from those territories back to Ireland to face prosecution?

I wish to follow up on a point raised by Deputy Connaughton concerning the draconian transposition of EU directives into Irish law. We are very eager to implement the letter of the law when it comes to EU directives and legislation. We try to cover all eventualities and it is a belt and braces approach whereas continental Europe has always taken a minimalist approach. Will the Minister give a guarantee that the approach being adopted here is exactly the same as that being adopted in the other 15 member states? We do not want to end up with legislation that is far more prescriptive than the legislation in France or many other European countries. If that is the case what is the value of the legislation before the House? Is it being introduced on the basis of what we need to do or is it the belt and braces approach that has been taken to date by Ireland on all EU directives? I would appreciate clarification of this issue.

Deputy Connaughton raised the probability of an incident in Ireland similar to that which occurred in Istanbul. Neutrality is a fallacy here because we do not have the ability to defend ourselves. It would be useful to have a more comprehensive debate on that to deal with citizens' concerns on the defence and security of the State.

We all agree it is necessary to take the action to prevent international terrorism, that goes without saying. The atrocities of 11 September 2001 and other acts since emphasise the need for peace loving countries to take whatever action is necessary to protect themselves, their people and democracy.

Having said that, we must be careful. If we introduce legislation that brings the law into disrepute, people will say that if we had taken more time and examined the issue carefully, we might have seen the problem. I am not happy that legislation with 41 sections should go through the House in a few hours. That is not the way to do business and, invariably, we will come to regret it. The Minister will say that we have time to deal with the sections of the Bill but when legislation is rushed, problems arise. The deadline for the enactment of this Bill is 4 January but that should not be the case.

The events of 11 September were horrendous but, in their aftermath, we should look at what is happening in Guantanamo Bay, where people are being wrongfully detained. I was involved with others in this House in the campaigns to free the Birmingham Six, the Guildford Four and other victims of miscarriages of justice.

What about the Winchester Three?

I was involved in that campaign as well.

Just checking.

While it was generally accepted that doubts existed about the guilt of the people in prison, it was only after long campaigns that it was possible to see that justice was eventually done. In those circumstances, particularly in the case of Annie Maguire, there were glaring breaches in the normal procedures and, as a result, things went wrong and were not corrected for considerable time, 14 years in the case of the Guildford Four.

I am most worried by section 12, which provides for the arrest of a person without a warrant when the warrant is in preparation in another jurisdiction. The Minister of State is an expert on constitutional law, and his colleague, the Minister for Justice, Equality and Law Reform, is an expert in all law, civil and constitutional.

He is an expert, full stop.

If he were here now I would engage with him about some of his acrylic references this morning. In the preparation of warrants, however, we must be certain the legislation is used for the purposes for which it is intended. Those who are powerful and influential, such as the drug barons, have vast resources to protect themselves, but an innocent individual with no influence or resources is not in the position to deal with such a situation. The Minister of State knows that in such circumstances we must ask if we are certain that the legislation, necessary as it is, will not be used against innocent people who are then suddenly taken away from this or another jurisdiction and dealt with in a fashion that would not be in accordance with the rules here. We should make provision for such circumstances. We have all experienced occasions where the validity of a warrant or action taken on foot thereof can be questioned. It is important that the legislation we pass is not held up to ridicule by virtue of a loophole leading to abuse and brings us into disrepute. The constitutional rights of the victims of all atrocities are important and, equally, the constitutional rights of an innocent person who might be wrongfully accused are important. We must be careful.

Section 12 provides that the gardaí may arrest a person without a warrant where a Schengen alert has been issued on the Schengen information system and the gardaí have reasonable grounds to believe that the person is likely to leave the State before the European arrest warrant is received. Deputy Connaughton referred to the difficulties that arose in this State as a result of photocopies of warrants and warrants that were not authenticated by the courts, events we all remember.

The Minister should ensure that these warrants are used against the drug barons and organised crime gangs who have left the country, are operating freely outside of it and directing their operations here from their havens abroad. They must be brought home to answer for their crimes and there must be no possibility of mistakes with warrants.

This measure is being introduced is to deal with serious crime, not technical offences, and should be used against serious criminals. There is a feeling that serious criminals can get away with their actions because they have the power and influence to raise two fingers to the law and the people but that minor offences committed by those with little or no influence are punished readily and severely.

It happens all the time.

That should be borne in mind.

I thank all Deputies for the contributions during this debate on which we will reflect before Committee Stage. The Minister said this morning that he will propose amendments on Committee Stage. Most of those will be technical in nature to clarify certain provisions in the Bill. They should also address some of the issues that have arisen in the debate.

Deputies Connaughton and Costello asked what input we had into the European agreement. The agreement had to be adopted unanimously by all EU member states. We studied it in detail and agreed to adopt it on two conditions, that it was debated in the Oireachtas and that the Bill would contain a provision whereby a person could not be removed from the country just to be investigated. The person has to be charged or be someone on whom a prison sentence has been imposed and who is then taken out to serve that sentence.

Deputy Connaughton, Deputy Costello and others asked how many countries have signed up to this agreement. To date, four countries have ratified the agreement: the United Kingdom, Denmark, Portugal and Spain. The following countries are expected to meet the deadline of 4 January 2004: Ireland, Greece, Sweden, Finland and Belgium. The following countries will not meet the deadline: Germany, France, Italy, the Netherlands, Luxembourg and Austria.

On a point of order, there does not seem to be a quorum in the House.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

Various spokespersons raised points of interest but, unfortunately, due to the irresponsible attitude of Sinn Féin in calling a quorum I do not have the opportunity to reply fully.

If the Minister of State had not put a guillotine on this debate and allowed people to speak he would have plenty of time to answer questions.

In the short time available I will respond to two points. First, I reject and abhor Deputy Naughten's assertion that Limerick is the crime capital of Ireland and that there are no-go areas in the city. The people of my city are very concerned about this image being presented and such comments being made in the Dáil on a Friday evening, as if it was a smart thing to say. It might surprise some Members of the House to know—

Is it not true?

Limerick is not the crime capital of Ireland and it does not have no-go areas.

There is a problem.

It might surprise some Members of the House to know that Fine Gael have some votes left in Limerick. Deputy Naughten may think this is a smart thing to say. He may rest assured that I will let the people of Limerick know the feelings of a member of the Fine Gael front bench about my city.

The Minister of State can tell people that there is a serious crime problem and nothing is being done about it.

Enough time has been wasted. That is the Fine Gael view of Limerick and it will be publicised widely there next week. The Deputies need make no mistake about that.

I heard Deputy Ó Snodaigh pontificating earlier but I would take him much more seriously if he had acted differently on another recent event that occurred much closer to home. There was an incident involving a trial in Limerick which caused a great outcry and put the Minister for Justice, Equality and Law Reform into the eye of a storm. On radio he expressed sentiments about jury trials and human rights and so on very similar to those expressed today by Deputy Ó Snodaigh in his Martin Luther King style speech.

Now the Minister of State is paying me compliments.

I did not notice any word or syllable of support from him or the perfidious Sinn Féin Party in support of the Minister. He left the Minister standing in the gap on his own. He made no attempt to support the Minister when he was expressing the same views as the Deputy uttered today.

It is fine and trendy and fashionable to insist on civil and human rights for people overseas who are wanted for crimes abroad and whose victims have no connection with people here.

It is not fashionable. That is rubbish.

However, when the alleged perpetrators of crime are committing crimes against people on the Deputy's doorstep in Dublin South Central or Dublin North Central, or wherever, against people who will have votes in the next election, Deputy Ó Snodaigh joins the mob. He becomes part of the hanging and flogging brigade. That sort of hypocrisy is nauseating.

That is an insult. I have supported the Minister.

He would do better asking his military wing to tell the families of the unfortunate people whose bodies are still hidden where they are located so they can at least have a decent burial. To hear Sinn Féin rabbitting on about human rights and democracy and the rule of law, the same people who ran the nutting squad, who executed people without trial, jury or due process strikes me as nauseating hypocrisy and this is another example.

That is nonsense. The Minister of State should withdraw that remark.

It is fashionable to talk about the Miami Five, and the Florence Four and the Toulouse Three but when it comes to the Deputy's own area he is very happy to join the mob and that sort of nauseating hypocrisy will become evident to the voters.

The Minister of State is ranting. He should stick to the point.

Deputy Finian McGrath is on both sides when it suits him.

He plays for both sides.

That is rubbish.

Let us get back to Limerick.

When votes were involved he did not stand by the Minister for Justice, Equality and Law Reform and he is damned by his record. I have a copy of his speech on that debate. He is an unreconstructed hypocrite.

The Leas Cheann-Comhairle should ask the Minister of State to withdraw that remark.

I do not have the time to quote from his speech but he is damned by his words on the record. I thank the Labour Party—

Where did I go wrong?

—and Fine Gael, apart from Deputy Naughten, for their constructive contribution to this debate. I commend the Bill to the House.

Question put: "That the words proposed to be deleted stand part of the main Question."
Question declared carried.
Amendment declared lost.

An Leas-Cheann Comhairle

I declare the Bill to be read a Second Time in accordance with Standing Order 119(2)(i).

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