On the points made by Deputy Ó Snodaigh, I want to be orderly and not depart too much from the scope of his amendment but the amendment itself is inconsistent with the provisions of the framework decision, which require all member states to enact a law to give effect to it by 31 December of this year. I could not say I was complying with my obligation under EU law if I brought in an Act which would not operate until every other member state had complied with its obligation to enact similar legislation. That would not be appropriate or reconcilable with our European law obligations.
Deputy Ó Snodaigh also quoted from recital 12 of the framework decision. He said he would not quote in extenso from the report of the Human Rights Commission but it is worthwhile pointing out that recital 12 in the framework decision states:
This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof. Nothing in this Framework Decision [I stress this point] 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 these reasons.
I stress the term "or that that person's position may be prejudiced for any of these reasons".
In terms of transposing this provision into Irish law, I draw Deputy Ó Snodaigh's attention to Part 3, section 37 of the Bill, which states:
A person shall not be surrendered under this Act if–
(a) his or her surrender would be incompatible with the State's obligations under–
(i) the Convention, or
(ii) the Protocols to the Convention [which is the European Convention on Human Rights]
(b) his or her surrender would constitute a contravention of any provision of the Constitution (other than for the reason that the offence specified in the European arrest warrant is an offence to which section 38(1)(b) applies),
The next paragraph is of relevance because it deals exactly with the point raised by Deputy Ó Snodaigh. It states:
(c) there are reasonable grounds for believing that–
(i) the European arrest warrant was issued in respect of the person for the purposes of facilitating his or her prosecution or punishment in the issuing state for reasons connected with his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation, or
(ii) in the prosecution or punishment of the person in the issuing state, he or she will be treated less favourably than a person who–
(I) is not of his or her sex, race, religion, nationality or ethnic origin,
(II) does not hold the same political opinions as him or her,
(III) speaks a different language than he or she does, or
(IV) does not have the same sexual orientation,
(iii) were the person to be surrendered to the issuing state–
(I) he or she would be sentenced to death . . . or
(II) he or she would be tortured or subjected to inhuman or degrading treatment.
We have taken the recital from this framework decision and will have embodied it into our substantive law when this legislation is enacted. There is a clear, unequivocal and absolute prohibition on the extradition of any Irish person or any other person in Ireland to any other member state or their rendition on foot of a warrant if any of those circumstances apply, and we have handed to our independent courts the protection of every individual on those grounds.
People talk about the protections we have put in place on foot of the framework decision. We have used every mechanism available to us in the framework, including the language of its own recitals, to ensure that no person will be surrendered by the State to any other member state on foot of a European arrest warrant where any of those possibilities exist to a substantial extent in the mind of an independent Irish courts system. What more does anybody in this House want by way of protection? We entrust to our courts the protection of everyone, citizen and non-citizen, by reference to those grounds.
One can conjure up any scenario but I cannot imagine more strongly worded and firm-minded protections for individuals than we have put into this legislation. It may be that we have created a lawyer's charter for the future, and some people may be critical of us because these issues are now litigable before the Irish courts, but we have taken the language of the framework decision at face value and taken some of its recitals and made them our substantive law so that people would be protected from extradition. Those rights apply regardless of the fact that a state may or may not be admitted or may or may not be a member of the European Union. Those rights, which are embodied in this statute, will apply to every person in respect of whom a European arrest warrant is issued by any other member state.
It is relevant to refer to Part III because this is not just something which might arise in a case. It is a positive duty imposed on every case that comes before the Irish courts that there should be no surrender, to use a phrase, under this legislation unless and until these hurdles are got over. I do not know what greater protection of human rights could have been put into this legislation. The Parliamentary Counsel in my Department and in the Attorney General's office and I have made sure that every possible defence for human rights and civil liberties, and every possible defence based on discrimination or threat to human rights, would be included in this legislation.
Deputy Ó Snodaigh has also raised the question of the Human Rights Commission's critique of this legislation. I want the record to clearly indicate that when that critique came to hand it was taken very seriously. The Department of Justice, Equality and Law Reform, as does every other Department but particularly my Department, takes seriously any critique the Human Rights Commission offers of any legislation. At my request, all of the individual arguments, criticisms and points were analysed in tabular form to determine if they were valid, invalid, covered by any portion of the Bill or whatever. It is not correct to say that in some sense we have been cavalier or ignored the views of the commission. We have taken them very much on board but in so far as the commission criticised the process leading to the adoption of the framework decision, we are bound by the adoption of the framework decision, and this House, in the lifetime of the last Dáil, voted for the framework to become binding on the Irish State. Subject to this, we have included everything possible in the legislation to protect the rights and liberties of individuals without making the whole system unworkable.
Without wishing in any way to be prejudiced by its adoption, we have taken every letter, word and phrase in the text of the framework agreement which gives us the right to uphold the human rights of individuals – these are stated and acknowledged by the framework decision – to ensure they have a concrete and real defence. We have not, as we could perhaps have done, vested in the Minister of the day, for example, the right to interfere with a warrant on foot of these grounds but given this role to the courts. We have stated these issues "must", as opposed to "may", be taken into account by the courts which "must", as opposed to "may", refuse to extradite if they find that any of the dangers outlined are present in a particular case. We could not have gone further.
Deputy Ó Snodaigh may have a rooted objection to the principle of the legislation in the first place but he should at least acknowledge that Part 3, particularly section 37 to which I referred, goes as far as any member state of the European Union, and further than most, in protecting the freedoms and rights of people in respect of whom arrest warrants are issued.
The Deputy suggested the legislation was the slippery slope to the creation of a European superstate and that this particular measure was part of an inexorable process of integration leading towards some form of European superstate with a uniform criminal law. I repeat my comment on Committee Stage last night that two broad strategies were open to member states at the Tampere Council meeting, one of which was to develop an area of freedom, security and justice on the basis of uniformity and approximation, whereas the other was to adopt a wholly different approach, namely, to create the area of freedom, security and justice on the basis of mutual recognition of systems, while at the same time preserving to the greatest possible extent the autonomy of member states to determine their own criminal law and criminal law procedure. The latter, the line taken by the Government, prevailed.
The legislation is the exemplification of this approach because it operates on the basis that member states respect and recognise each other's decisions and orders and co-operate among themselves, while at the same time retaining the right to determine their own criminal law and criminal law procedure. It was also the position taken by the Government in respect of justice and home affairs matters at the recent Intergovernmental Council meeting.
I reject, therefore, the suggestion that this is the slippery slope or carries with it the implication that Ireland is somehow submitting to anaesthesia in order that it can slip quietly into some form of European superstate with a single criminal law. Nothing could be further from the truth. Having regard to the provisions of section 37 when they come into effect, no state in the European Union will have a higher degree of real and substantial protection for those who seek the protection of its courts.