European Arrest Warrant Bill 2003: Report and Final Stages.

I advise Members that the list of amendments circulated this morning contains a number of incorrect line references. The list of amendments has been reprinted with the correct line references and recirculated to Members. The correct list has a note on the top right-hand corner of the cover. There is one correction to be made to the reprinted list. The lead on amendment No. 92 should read "In page 40 to delete lines 17 to 25 and to substitute the following:"

Amendment No. 1 in the name of Deputy Ó Snodaigh is out of order as it amounts to a direct negative. Amendment No. 2 in the name of Deputy Costello arises out of Committee proceedings.

Amendment No. 1 not moved.

I move amendment No. 2:

In page 5, between lines 16 and 17, to insert the following:

"(2) This Act in so far as it relates to extradition and the Extradition Acts 1965 to 2001 may be cited together as the Extradition Acts 1965 to 2003.".

This amendment was tabled by my colleague, Deputy Costello, in order to be helpful in the drafting of the legislation. The Minister for Justice, Equality and Law Reform, Deputy McDowell, did not accept it on Committee Stage and no doubt I will get a negative response now. When the Minister is replying, will he consider re-stating or consolidating the extradition Acts, as there is a great variety of legislation in that area?

This legislation will have a significant effect on the 1965 Extradition Act. We saw the debacle created around that Act when Dominic McGlinchey was extradited from this State to Northern Ireland and a few months later extradited back again. There were several similar cases, including Robert Russell and Dessie Ellis and a host of other people who came before the courts on the extradition issue. At the time, the 1965 Extradition Act was shown to be full of holes. The case law established around the cases mentioned served to tighten up the legislation. At a time when we have probably reached some semblance of understanding between the Judiciary and people before the courts on this type of issue, we are being presented with legislation which has the potential for unravelling the situation again. That is not wise.

I know the Minister has knowledge of these matters because he acted for many republicans at the time. I commend him for his success in many of those cases, though I am somewhat saddened that his views have changed as much as they have done in recent times. This Bill is unnecessary and it is wrong to introduce it at this time.

Deputy O'Sullivan is correct in anticipating that I will not accept the amendment, but I considered the matter overnight, as I told Deputy Costello I would. It would not be helpful to cite this Act as part of the Extradition Act. The Bill before us is a fundamentally different concept. It is a European framework directive on arrest warrants. It does not relate to extradition as historically understood between member states. I accept that Part III of the Extradition Act of 1965 was also concerned with rendition on warrants rather than formal extradition, but it is the view of the draughtsman and of my Department, which I share, that it would not help simply to say that this is part of our extradition law.

The point of the framework decision is to replace the concept of extradition with rendition on a court to court basis on foot of warrants, rather than on a country to country basis, as implied by extradition as a term.

The Deputy raises an interesting question as to whether the extradition Acts be the subject of a consolidation or re-statement. They should be, because these Acts are a prime candidate for a re-statement in accordance with the statute law re-statement legislation now at hand. Extradition law is currently to be found in a number of different statutes. It would be a very useful exercise if the laws could be either consolidated or restated. That is a matter I will consider, and I will find out if the statute law revision unit in the Attorney General's office would recommend a single re-statement of the extradition law.

Deputy Morgan is correct in saying that as a member of the Irish Bar I represented many clients of many political hues. The fact that I represented them reflects only that I was adhering to—

To a fat wallet.

I was adhering to the ethical obligations of my profession, which are to represent clients whom I am competent to represent, regardless of whether I agree with them or not. It is true that on many occasions when practising at the criminal Bar, I have represented members of what would be termed the republican movement.

Regarding this framework decision, the law on extradition between Ireland and the United Kingdom, which was set out in Part III of the Extradition Act of 1965, was on the basis similar to that of the legislation before us, of Irish courts honouring United Kingdom warrants. That was the law. From 1965 to 1976, and thereafter, it was generally assumed that there could be no rendition on these warrants in respect of what were termed political or revenue offences. In the context of the Sunningdale Agreement, efforts were made to secure rendition between the United Kingdom and Ireland in respect of offences in which the political exception was frequently cited. A commission was then established between the two countries in which lawyers from both sides tried to work out whether it was constitutionally permissible, or permissible under international law, for rendition on warrants of this kind to occur.

It was as a result of a disagreement between the expert panel of lawyers from both sides that the Criminal Law (Jurisdiction) Act 1976 was enacted. It sought to avoid the extradition for political offences question by conferring on the Irish courts jurisdiction to deal with cases which were committed in Northern Ireland, provided they were scheduled offences under that Act. It was not until 1987 and 1989 that the question of political offences again arose in the Legislature. At that stage under the European Convention on the Suppression of Terrorism, the political offence exception to extradition was narrowed down very considerably.

It should be clearly understood by the House that the European Union has now developed to a point that the member states have agreed among themselves that the political offence exception has no future in European interstate relations regarding whether fugitive offenders should or should not be sent for trial in member states by other member states. That is the new position. It means that if one shoots or bombs somebody or engages in any other activity which is a criminal offence to which the European arrest warrant framework decision applies, one cannot resist being sent from one country to another to face trial for that offence by simply claiming it was politically motivated.

For an offence to be the subject of a European arrest warrant, it either must fit within the list of positive offences which are cited in Article 2.2 of the framework decision or, alternatively, it must be an offence which is punishable under our law. That the offence was politically motivated will no longer be a ground for resisting rendition on foot of a warrant to anywhere in the European Union, including the United Kingdom. The same applies to taxation offences. The old rule in Buchanan and McVeigh that people could not be extradited for revenue offences has likewise been abrogated.

From 1 January 2004, as part of the creation of a European area of freedom, security and justice, people who engage in serious criminal offences, even for a political motive, will be liable to be sent to face trial or to complete their sentences regardless of whether their motivation was political. Does that mean that everybody in every circumstance would be liable to be extradited regardless of the political dimension? It might be that in certain cases, a case could be made that it would be contrary to the European Convention on Human Rights to send somebody for trial in a state if the political character of the circumstances of the offence was such that it would amount to a denial of his or her human rights to be made accountable for the particular offence in question. That is a highly exceptional and unusual possibility.

Things which were in the past regarded as a political offence such as, for instance, shooting policemen, letting off bombs or being in possession of firearms or the like, will be the subject of state to state rendition. I do not agree with Deputy Morgan's implication that the case law which existed under the 1965 Act and the subsequent Acts are of value and should be retained. What Ireland has agreed to as part of the development of the European Union as an area of freedom, security and justice, is that a political offence exception should no longer form part of our law when we are dealing with partner states in the European Union with whom we closely co-operate and whose systems of law we trust.

There are some shortcomings with the EU as it stands but there will be even greater ones on the accession of Turkey to the EU. I am sure the Minister for Justice, Equality and Law Reform is well aware of the inglorious record and history of that country. That is one example and I will not labour the point about difficulties that will undoubtedly arise in the future.

The Labour Party amendment states, "in so far as it relates to extradition". It is understood that the Bill in its entirety is not about extradition but it certainly relates to extradition. I understand the Minister will not accept the amendment so I will withdraw it.

Amendment, by leave, withdrawn.

Amendment No. 4 is an alternative to amendment No. 3 and these amendments may be discussed together by agreement.

I move amendment No. 3:

In page 5, to delete line 17 and substitute the following:

"(2) This Act shall not come into operation until such time as all other European Union Member States have enacted similar legislation, and until such time as the Human Rights Commissions or equivalent bodies in each Member State have certified according to the procedures of their respective national parliaments that the safeguards provided therein are acceptable, and that the protections available are equivalent between Member States.".

The amendment is to delay the coming into operation of this legislation when it is passed until all member states have enacted similar legislation. At this stage, only four out of 15 member states have passed similar legislation. The Minister spoke about another four yesterday on Committee Stage but that still leaves another seven about which there is no information. The legislation should be conditional upon the human rights commissions or equivalent bodies in the member states. The national parliaments should provide the acceptable safeguards and the protections should be equivalent between member states.

The introduction of EU arrest warrants was proposed at the Tampere summit in 1999. It was discussed in the context of an EU legal system harmonisation over a period of a decade or so. Sinn Féin has opposed in principle the harmonisation of the EU legal system. There is a contradiction in the Minister's position as he has frequently defended the superiority of the Irish constitutional guarantees over other European systems and has argued the need to protect the integrity of the Irish system which has been developed since the foundation of the State. In this context I fail to understand how the Minister can possibly justify this harmonisation in the absence of an upwards harmonisation of safeguards.

The Human Rights Commission has pointed out that the framework decision was based on a flawed presumption of effective and equivalent protections between member states. The Minister will know that this equivalence does not exist throughout the European Union and is not likely to exist in the short-term. Turkey will be accepted into the European Union without that country achieving a better standard of human rights protection which it will not achieve at present and is not likely to achieve in the near future. If such countries are accepted into Europe, the equivalence of safeguards in human rights will not exist. I ask how the Minister can justify measures which will reduce judicial scrutiny by Irish courts. He must understand that this is part of a broader drive towards the integration of an EU legal system and ultimately an EU superstate federation. That is the proposal being planned by some of the architects of the future Europe.

I fail to understand the difference between this proposal and the slippery slope of harmonisation of taxation measures which has been denounced by the Minister's PD colleague, the Tánaiste. They are similar harmonisation proposals.

Even the Minister's colleague, Mr. Paul Higgins, senior counsel, has expressed concerns about this measure. When one considers what the Minister has stated previously concerning the need to ensure the integrity of the judicial system, his position on this matter is fundamentally contradictory. There is no contradiction between our opposition to unnecessary judicial integration leading to an EU super state and our support for the harmonisation of rights and safeguards across the European Union. This position is perfectly in keeping with the harmonisation of rights and safeguards on this island through the introduction of an all-Ireland charter of rights, and with our commitment to greater human rights standards across the globe. However, this measure is taking a step away from this. Ultimately, we are not merely aiming at the reunification of this island but also the global harmonisation of rights and safeguards on the basis that everyone should enjoy equal rights.

The Human Rights Commission has provided an opinion on the legislation for the Minister. Its analysis concludes that not only was the framework decision fundamentally flawed but also that the original scheme paid insufficient regard to the protection of human rights. I welcome the new safeguards provided for by the Minister, including a number of additional ones accepted yesterday on Committee Stage. Even with all these safeguards, however, the Bill is likely to diminish constitutional protections concerning extradition. If it is to proceed under those conditions, it will be unacceptable.

The Human Rights Commission's conclusions must be taken seriously. That is one of the reasons I have moved this amendment which would allow for a delay in the Bill coming into operation. The Government maintains that it has had limited discretion in framing it but it does have the option of delaying its enactment. The Human Rights Commission's report states:

The Human Rights Commission is aware of the limited legislative discretion afforded to the Oireachtas. However, the Human Rights Commission is also aware that the preamble to the framework decision makes reference to both the existing human rights protections in member states and those guaranteed by the treaty of the European Union, which in turns makes reference to the ECHR paragraph 12 of the preamble, which states: "This 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". Article 13 of the Framework Document goes on to state that "This framework decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in article 6 of the treaty of the European Union. Article 6 of the treaty of the European Union states that the union shall respect fundamental rights as guaranteed under the European Convention on Human Rights, and as they result from constitutional traditions common to the member states, as general principles of community law".

The Minister's lack of a comprehensive response to the concerns raised by the Human Rights Commission, and the fact that he has not addressed all of the commission's concerns in the amendments, are appalling. The implication is that the opinion of the commission is of little value, that human rights concerns should not guide the framing of legislation, and that the Minister does not accept that legislation should be human rights proofed.

Since the Minister has failed to do so, I am forced to move such amendments in the hope they will be accepted. Even though my party opposes the Bill in principle, in the short time we have had to table amendments, I have attempted to ensure that if the Bill is to become law, it will include the best possible guarantees of protection. Many of my amendments address issues raised by the Human Rights Commission but the rushed nature of the debate has not allowed us to have a proper discussion. We are now attempting to discuss 93 amendments in the space of 90 minutes. The Bill was rushed through Second and Committee Stages in order to facilitate its passing by an arbitrary deadline by which it does not have to be passed. However, because many other EU directives will not be passed by the time Ireland assumes the EU Presidency on 1 January we could have taken our time to debate the Bill properly, teasing it out to ensure all the questions raised by the commission are addressed properly and effectively. It is not sufficient to deal with the legislation in such a short period. Legislation framed in haste results in bad law, which is even worse.

There are flaws in the Bill and the Minister has tabled amendments. The fact that he is still coming up with new amendments right up to the last minute is deplorable because, barring the two amendments left over from Committee Stage yesterday, they deal with new issues. That is not good enough. Yesterday we were landed with many amendments for which we did not have time to pay attention. The House should be able to scrutinise legislation properly and raise matters of concern in order that we can stand over it once enacted. We cannot do so if legislation is rushed through the House, particularly in the case of technical Bills such as this.

The Deputy is wandering from the two amendments before the House.

We are not experts.

The Deputy has made his point about the lack of time but it may be more appropriate to do so on Fifth Stage.

I want to continue as we will probably not even reach Fifth Stage.

The Deputy should stick to the amendments before us and we will see how many we can get through.

While the Minister has used the 1 January deadline as an excuse, other Deputies, including myself, have succeeded in ensuring that at least there has been some discussion on relevant points. If the Bill is passed without amendment No. 3, it will accelerate the extradition process between member states and, in some cases, with third countries, making it nearly automatic in some instances. Most of the traditional grounds for refusing extradition are abolished, including the political offence exception. The Bill abolishes the dual criminality requirement for large categories of crime. It also disapplies the speciality rule and the re-extradition rule in a number of circumstances. The Human Rights Commission is not convinced that the safeguards are adequate. The Bill must not be viewed in isolation but as part of the repressive package of measures known as the so-called EU anti-terrorism road map.

Even though it concerns sensitive issues of fundamental rights, the Bill has not been dealt with properly and is being fast-tracked. I oppose it as well as the framework decision on which it is based. My party will be voting against it later tonight. We tabled a motion to seek to delay it going beyond Second Stage to ensure a proper debate because we knew then that the Government would be rushing it through the House. Deputy Deasy is shaking his head. I will conclude to allow him speak.

I cannot wait.

The whole Bill should be opposed. If not, the Minister should take the opportunity to adopt this measure. We can then ensure that the equivalent human rights protections are included from the day the Bill's provisions come into operation. We should delay the coming into operation of the provisions until all the European states are harmonised upwards in terms of human rights standards and procedures and we have the safeguards that are necessary to build a Europe which deserves our support.

My amendment is technical. It proposes the use of the active voice, something that the Law Reform Commission proposed some time ago. There is an inconsistency in the drafting style, which stays with the old style.

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.

While I may have rambled a little, I did acknowledge that the Minister had taken on board some, though not all, of the Human Rights Commission's concerns. I welcome the fact that he takes such a positive view of the commission's report and that each aspect was thoroughly examined.

The Minister has stated we must pass this legislation by 1 January. As I stated yesterday, there is no legal consequence for Ireland in this case if it refuses to incorporate this enabling legislation, as I understand third pillar measures do not currently come under the jurisdiction of the European Court of Justice. Therefore, no proceedings could be taken against Ireland if the Government was to state our national Parliament had decided that the legislation was unacceptable on the basis that its safeguards were inadequate and that it would undermine constitutional rights.

As I stated, most member states will not have passed the required legislation by 1 January. What will happen to them? The Minister mentioned the "big four" of Germany, France, Italy and, I believe, Spain, none of which will have passed the legislation on 1 January. Why will they not be punished? They have shown that directives can be ignored. The Stability and Growth Pact has also been ignored by several larger states, yet the institutions of the European Union have not collapsed around us. The Minister has stated this is the best we can come up with. Having set the standard, we should demand that it be met by all other member states and delay the legislation until such time as this demand is realised.

I have said all I have to say on the amendment. I will accept Deputy Deasy's amendment because he is right about the draft.

Question put: "That the words proposed to be deleted stand."



Will the Deputies claiming a division please rise?

Deputies Ó Snodaigh, Crowe, Morgan, Ferris, Cowley and Eamon Ryan rose.

As fewer than ten Members have risen, I declare the question carried. In accordance with Standing Order 68 the names of the Deputies dissenting will be recorded in the Journal of the Proceedings of the Dáil.

Question declared carried.
Amendment declared lost.

I move amendment No. 4:

In page 5, line 17, to delete "shall come" and substitute "comes".

Amendment agreed to.
Bill recommitted in respect of amendment No. 5.

I move amendment No. 5:

In page 5, line 22, to delete "construed" and substitute "read".

The amendment concerns the use of more simple language. The new Interpretation Act, which was sponsored by the Minister when he was Attorney General, deleted all occurrences of the word "construed" and inserted the word "read".

Is the Deputy informing me that, under the drafting guidelines, the word "read" is now supposed to be used where the word "construed" was used?

Yes, in the interests of consistency.

In the circumstances, I will accept the amendment.

Amendment agreed to.
Amendment reported.

I move amendment No. 6:

In page 6, line 22, after "person" to insert "exercising judicial functions".

This amendment relates to the definition of "judicial authority". We are concerned about the use of the word "person" not being qualified in any way so we are seeking to qualify it by the insertion of the phrase "exercising judicial functions". This will ensure that the person in the definition is exercising a judicial function. This amendment is required for clarity and to ensure that it is not a person who is not exercising a judicial function. I hope the Minister will accept the amendment.

I indicated on Committee Stage that I would look at the amendment again. However, the more I look at it, the happier I am to leave the Bill in its present form. Judicial authority is given the extended meaning of: ". . . the judge, magistrate or other person authorised by the law of the Member State concerned to perform functions the same as or similar to those performed under section 33 by a court in the State”.

I do not wish to be too technical but one must first apply the rule of construction or reading, which is called the justum generis rule. A justum generis rule means that where one uses a phrase such as “the judge, magistrate or other person”, the phrase “or other person” is construed as having the same broad category as the first two nouns in the phrase. If that were not the case, it would simply mean a person and there would be no point having the terms “judge” or “magistrate” in front of it.

In this context, the term is delimited to a person "authorised under the law of the Member State concerned to perform functions the same as or similar to those performed under section 33 by a court in the State”. Section 33 relates to the function of issuing an arrest warrant. I wish to ensure the provision is as flexible as possible to accommodate differences in structures in different legal systems. In some countries a warrant is issued by a judge, in others it is issued by a magistrate and in others it is issued by a court. There could be some other similar person in another system, such as a procurator, and I do not wish to delimit the ambit of the section or to confine it unreasonably in any way, provided the legal system of a member state confers on the person the function similar to the Irish court's function in section 33. Having regard to the justum generis rule, I am satisfied it will not be simply anybody who can issue a warrant but somebody with a similar function to the judicial function in the Irish system.

It is not necessary to accept the amendment. I can offer the Deputy an example. The Director of Public Prosecutions has to act in a quasi-judicial manner but could not be said to be carrying out a judicial function in, for example, deciding to send a case to the Special Criminal Court or not. These are functions which are peculiar to the Irish system. Whereas in other countries those decisions might be made by courts, in Ireland they are not. I am anxious that this legislation be as flexible as possible to accommodate the diverse systems of criminal justice in the European Union without creating a trap or loophole by which the scope of the legislation is narrowed unnecessarily. I am satisfied with the provision as it stands.

I accept the Minister's point that in another state it might be a person who is not necessarily a judicial person who might be exercising this authority. However, the definition is of "judicial authority" and I believe the provision would be tighter by the inclusion of what we propose.

Amendment, by leave, withdrawn.

I move amendment No. 7:

In page 6, line 27, to delete "or Gibraltar".

Gibraltar is not a member state and should not appear in the explanatory section of the Bill, any more than Jersey, the Isle of Man and other such states or principalities such as Sardinia, Andorra and San Marino. The European Union has 15 member states at present and on 1 May next year it will have an extra ten members, with more to follow. Perhaps Gibraltar will be one of them when it declares its independence. So far it has only declared its independence of Spain but not of Britain. It does not, therefore, fit into this provision and should be removed.

Article 33 of the framework decision, which we are obliged to implement, provides that the framework decision shall apply to Gibraltar. If it is to extend to Gibraltar, although Gibraltar is not in the ordinary sense of the term a member state of the European Union, we must either insert the phrase, "This shall also apply to Gibraltar", into every section or give a special extended meaning to the term "member state" to cover Gibraltar. That is what we have done. Deputy Ó Snodaigh may have an objection to Gibraltar featuring separately in the legislation but the framework decision makes that distinction. It is necessary to make provision for Gibraltar and the neatest way to do it is to extend the meaning of "member state" to cover Gibraltar.

It is still odd. A member state is a member state of the European Union. Gibraltar is not a member state and is not likely to become one. At some stage it might become part of the Spanish member state and that would be welcome.

Amendment, by leave, withdrawn.
Bill recommitted in respect of amendment No. 8.

I move amendment No. 8:

In page 6, line 32, to delete "construed" and substitute "read".

Amendment agreed to.
Amendment reported.

I move amendment No. 9:

In page 7, line 9, to delete "and (3)".

This amendment is related to amendment No. 10. The section as drafted provides for the retrospective application of European arrest warrants for offences carried out prior to the legislation coming into effect. The Minister said he took on board most of the concerns expressed by the Human Rights Commission. The commission still maintains that there is a strong argument that all persons subject to extradition requests should be afforded equal protection, a right that is protected under Article 40.2 of the Constitution. The commission cited the case of McMahon v. Leahy, where the Supreme Court held that the extradition of a person in respect of a specific offence is prohibited where an application for the offence of another person in relation to the same offence has already been refused. This is based on a principle of equal treatment under Article 40 of the Constitution.

The rule in the McMahon v. Leahy case protects persons from being transferred to another state in regard to an offence committed if the transfer of other persons for the same offence has been refused previously. In keeping with this analysis, amendments Nos. 9 and 10 propose strengthening equality before the law regarding the differences in extradition standards and equality between persons charged with the same offence.

I am not attracted to the amendment. It appears that if there were such a constitutional problem it might be dealt with under section 37. I do not concede in the context of the current legislation that the mere fact that someone else had been refused extradition prior to the event would constitute good grounds for refusing extradition. I am not attracted to that argument in the context of the legislation.

I not only seek to strengthen equality before the law, but to delete the section so that if extradition comes into effect it will deal from now on with cases that are not retrospective, in order to ensure equality between persons charged with the same offence, and equality before the law in respect of differences in extradition standards throughout the European Union. These are differences on which we have already focused. I ask the Minister to look at the case the Commission on Human Rights cited to see whether it has implications for the section. The Supreme Court case of McMahon v. Leahy held that the extradition of a person in respect of a specific offence is prohibited where an application for the extradition of other persons in respect of that offence has been refused.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 10 not moved.

I move amendment No. 11:

In page 7, to delete lines 20 to 22.

The amendment proposes to delete section 4(4). Subsection (4) states that the Act shall not apply in respect of a European arrest warrant issued by a member state before the commencement of Parts 1, 2 and 3. Since it will commence on 1 January, and no other member state could have issued an arrest warrant prior to that date, it has become redundant. Therefore, I propose to remove the subsection from the text.

As we have not yet accepted the Bill, a miracle might happen. It should remain in line with the argument I made earlier that the Bill should not come into effect until all member states have adopted the proposal, including the human rights aspects. Perhaps this will ensure it happens, therefore, I propose it remains in the text.

Amendment agreed to.

I move amendment No. 12:

In page 7, between lines 33 and 34, to insert the following:

"(c) an offence will be considered a corresponding offence for the purposes of paragraph (a) only if it corresponds in all its component aspects with an offence under the law of the State.”.

It has been pointed out that it is the general legal principle that an extradition may only be executed in respect of an alleged or committed offence where that offence in all its constituent aspects is also an offence in Irish law. This is contained in sections 10, 43 and 47 of the Extradition Act 1965. It was developed later in court findings in two extradition cases, namely, Furlong v. Kelly in the 1970s and Wyatt v. McLoughlin. The test for equivalence is whether all the agreements required when assessing if an Irish offence has been committed also exists in respect of the offence in the requesting state. The Commission on Human Rights concluded that the Bill as drafted was unclear as to whether the existing position in Irish law was protected and it requested to clarify the amendment. I propose the amendment in order to state more clearly that an offence for which a warrant is issued must correspond in all its component aspects with an offence under Irish law. There are many offences, and different sentences, throughout the European Union for which we do not have legislation. Offences in other countries, which are not criminal offences, would carry heavy penalties in these countries. The amendment seeks to include protection and clarify that the offence for which a warrant is issued must correspond in all its component aspects with an offence under Irish law.

I do not propose to accept the amendment.

An Leas-Cheann Comhairle

Is the Deputy pressing the amendment?

Will the Minister explain the matter further?

I did not mean to be dismissive. I was looking at a different amendment. On the points the Deputy raised, I believe the existing language of the section is sufficient. I do not know what extra distinction the Deputy is trying to arrive at by proposing that all the component parts should correspond with an offence under the law of the State. It appears this is designed to introduce extra artificial constraints in the operation of the European arrest warrant. If offences correspond, it should be sufficient. Substantial correspondence should be enough. I do not consider that including the words "all component parts" improves the text.

It may be that in one country something is expressed to be an offence with four ingredients which corresponds to an offence comprising three different ingredients in the law of another country. I do not want to cause a totally artificial legal obstacle to the operation of the European arrest warrant by requiring that states arrive at correspondence by exactly the same route.

Amendment, by leave, withdrawn.
Amendments Nos. 13 and 14 not moved.

An Leas-Cheann Comhairle

Amendments Nos. 16, 17 and 18 are alternatives to amendment No. 15. All four may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 15:

In page 8, to delete lines 27 to 38.

The section I propose to delete deals with the obligation to surrender. We need to ensure the best possible protections are included. The Minister has mentioned the protections in section 37, which are to be welcomed, but section 10 should be removed. Doing so would not affect the Bill in its entirety and it would allow the Bill to proceed without establishing the obligation for the judicial authority to surrender the person concerned in every case.

Amendments Nos. 16 to 18 are in the name of my colleague, Deputy Costello. Deputy Ó Snodaigh is seeking to delete section 10, while we are seeking to tidy it up and make it more precise and more in line with the extradition legislation. Amendment No. 16 provides that a warrant should only be addressed to Ireland in respect of people who are in Ireland. As the Bill refers only to criminal proceedings, we feel that the word "criminal" should be in the text of this section, hence amendment No. 17. No. 18 deals with the possibility that a sentence may not be enforceable – because it is under appeal, for example – and provides that only an immediately enforceable sentence is included under this section. All the amendments are designed to tidy up the section and render its intention more accurate.

Deputy Ó Snodaigh's amendment seeks to remove the obligation of the State to surrender persons in respect of whom valid arrest warrants are issued. One can view it two ways. The Deputy rather optimistically says this would not affect the substance of the Bill. I presume he is implying that if this obligation was taken away there would somehow be an option left – that people might decide, if the humour took them, to surrender people in respect of warrants. The question of who is to be capable of exercising such a broad discretion is not clear.

Section 10 provides that certain persons are liable, subject to and in accordance with the provisions of this Act and the framework decision, to be arrested and surrendered. If they were not liable to be arrested and surrendered the Act would become largely unusable. In this context, I draw the attention of the House to section 11(3), which has not been mentioned much in our proceedings. It states:

Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of the offence specified therein, the European arrest warrant shall, be accompanied by–

(a) an undertaking in writing of the issuing judicial authority that the surrender of that person is sought for the purpose, only, of his or her being charged with, and tried for, the offence concerned, and

(b) a statement in writing of the issuing judicial authority that–

(i) the person has been charged and a decision to try him or her for the offence concerned has been made, or

(ii) a decision to charge the person and try him or her for the offence concerned has been made.

These two provisions are supposed to reflect the declaration made by Ireland at the time the framework decision was adopted that we would not extradite people for other purposes such as participating in a criminal inquiry, principally because we were concerned that under one construction of the framework decision it would be open to member states to seek the extradition of people to participate in an inquisitorial process other than their trial. That may go some way towards alleviating Deputy O'Sullivan's concerns.

In the matter of amendment No. 16, it is not the intention of the Government to accept an amendment which would have the effect of providing that only a warrant that was Ireland-specific could be acted upon. If, for example, a child abductor went on the run from the United Kingdom and was believed to be either in Ireland, France or Belgium, the same arrest warrant should be capable of being executed in each of those countries at the request of the UK. This would be preferable to obliging the UK to issue separate country-specific warrants, which is not the intention of the framework decision.

It is expected that if Ireland is to act on a Greek arrest warrant we will be provided with a translation, but provision has been made in an amendment I moved on Committee Stage for the requirement for translation to be restricted in certain circumstances, so that if at some future date the European countries decide the arrest warrant need only be in one or two languages of the EU, for example French and English, and that it does not need to be translated into the official languages of 25 member states, our law will be capable of dealing with that.

To return to the country-specific arrest warrant which Deputy O'Sullivan is proposing, I do not think we should narrow down the scope of the arrest warrant. It is implicit in the framework decision that a single arrest warrant could be sent to a number of member states, albeit accompanied by a translation. I do not think it should be necessary for a country to be sure a person is in Ireland before it transmits an arrest warrant to Ireland. When fugitive offenders are being hunted one must operate under a number of different hypotheses – individual member states should operate on the contingency that the fugitive is in that country.

I am opposed to the amendment in the name of Deputy Ó Snodaigh because it would render the Act unworkable. Deputy O'Sullivan's amendments are not required or would be too restrictive.

Amendment, by leave, withdrawn.
Amendments Nos. 16 and 17 not moved.

I move amendment No. 18:

In page 8, line 31, to delete "a" and substitute "an immediately enforceable".

I am not satisfied that the section referred to by the Minister, section 11(3), addresses the issue I raised in regard to sentences that may be under appeal.

Question, "That the word proposed to be deleted stand", put and declared carried.
Amendment declared lost.

An Leas-Cheann Comhairle

Amendments Nos. 19 and 23 are cognate and may be discussed together, by agreement.

I move amendment No. 19:

In page 9, between lines 33 and 34, to insert the following:

"(3) The Central Authority shall ensure that a copy of a European arrest warrant and of any undertaking required to be given under this Act is made available to a person named in the European arrest warrant in a language he or she understands.".

It is to be expected that if the person arrested has not got the warrant in a language he or she can understand, the legal team would have access to a document detailing the exact nature of the offence and transmit it to the person and would have the ability to put forward a case on whether to proceed with the extradition, to accept the request with which he or she has been served or to accede to it without recourse to a court challenge. It is a natural provision.

Amendment No. 23 has the same wording as amendment No. 19 but seeks to be inserted in a different part of the Bill. Whether it appears here or where Deputy Costello wishes it to appear is irrelevant. It needs to be stated in the Bill that a person facing extradition or an arrest warrant should have a document served on him or her which he or she can understand. That would not be very difficult. If one goes through the process of drawing up such an arrest warrant the language of the person being sought would most likely be known to the authorities seeking the arrest and transportation to another state. Therefore, they could prepare the document in advance and have it served by the arresting authority in another state. In that way the rights of the person arrested would be protected. That would be the correct procedure in this case and it would set a standard which we should try to live up to.

Deputy Ó Snodaigh has explained the amendments very well. Deputy Costello's amendment No. 23 is similar to amendment No. 19. When addressing amendment No. 16, the Minister mentioned serving notices in various languages if the same warrant was going to a number of different countries. As he appears to accept the principle in regard to languages, I hope he can accept the amendment.

I do not propose to accept the amendment because it goes beyond what is required by the framework decision. The provisions in the Bill address adequately the matter about which the Deputy is concerned and I agree it is an issue about which we should be concerned. Where a person is arrested and also at his or her first appearance before the court he or she will be informed of his or her right to obtain or be provided with, where appropriate, the services of an interpreter. A person will be given an interpreter at the time of arrest and at the time he or she is first before the court. Our view is that it will be the function of the interpreter to explain and translate for the person in question any documents or exhibits relevant to the proper conduct of his or her case.

I do not propose to accept amendment No. 23 on the same grounds. Where a person is arrested and also at his or her appearance before the court he or she will be informed of his or her right to obtain or be provided with, where appropriate, the services of an interpreter. In my judgment, it is implicit in the clear obligation under the statute to provide an interpreter, that all of these documents will be translated for a person who cannot understand them. The effect of what has been proposed by the amendments in the names of Deputies Costello and Ó Snodaigh is already provided for.

There are a number of typographical amendments I wish to make to the Bill which do not in any way change the meaning of the legislation:

In page 6, line 11, to move the word "and" up to line 10,

In page 23, line 14, to transpose the word "and" down one line and move it out to the edge,

In page 38, line 20, to transpose the word "and" down and align it as mentioned in respect of the previous amendment, and

In page 38, line 34, to delete the dash before the inverted commas.

These far reaching amendments have been noted as ones that are properly required if the Bill is to be of the highest possible standard. I seek liberty to move them as drafting amendments.

An Leas-Cheann Comhairle

Are the amendments agreed? Agreed.

On amendment No. 19, I welcome the Minister's point on interpreters and I note it has appeared quite often throughout the Bill. I have tabled two further amendments, Nos. 37 and 39, where it would have been appropriate to have the services of an interpreter. It is pity they will not be reached. Amendment No. 19 should be accepted.

I welcome the fact that the Minister has a new job as a proof reader. It is a good sign when he is dotting the "i's" and hopefully he managed to catch all the "or's" last night. He is only trying to catch the "and's" tonight.

To conclude on amendment 19, the Minister said the person will get an interpreter and will get the documentation in due course. I am seeking to ensure that following the arrest the person has the documentation as soon as possible.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

I am now required to put the following question in accordance with the order of the Dáil of this day: "That the amendments set down by the Minister for Justice, Equality and Law Reform and not disposed of are hereby made to the Bill, that Report Stage is hereby completed and that the Bill is hereby passed."

Question put.



Will the Deputies claiming a division please rise?

Deputies Cuffe, Ó Snodaigh, Crowe, Morgan, Ferris, Gogarty, Eamon Ryan, Boyle and Gormley rose.

As fewer than ten Members have risen I declare the question carried. In accordance with Standing Order 68 the names of the Deputies dissenting will be recorded in the Journal of the Proceedings of the Dáil.

Question declared carried.