Dáil Éireann debate -
Wednesday, 23 Mar 2022

Vol. 1019 No. 7

European Arrest Warrant (Amendment) Bill 2022: Second Stage

Minister of State at the Department of Justice (Deputy James Browne)

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

I am pleased to introduce the European Arrest Warrant (Amendment) Bill 2022 to the House. This Bill aims to address certain issues that have been identified by the European Commission with our existing legislation in this area in formal EU infringement proceedings. Timely enactment of the Bill will ensure that Ireland is not referred to the Court of Justice of the European Union, CJEU, and will not become liable for financial penalties. Second, this Bill also makes a number further amendments to European Arrest Warrant Act 2003 to ensure there is a continued efficient operation of European arrest warrant system within the State.

By way of background, any European Union country may use European arrest warrant systems to seek the return of a person who is wanted in that country in relation to a crime. The warrant may seek the return of the person to stand trial, to face sentencing after a conviction or to serve a sentence that has already been handed down by a court in that country. The original European Arrest Warrant Act 2003 transposed the European Union Council framework decision 2002/584/JHA and came into effect on 1 January 2004. It replaced the previous extradition process between EU member states with a much faster and more simplified system which has been successful and which is regarded as a vital tool in the fight against crime right across the European Union.

The 2019 report by the Irish central authority for the operation of the European arrest warrant, which was published by my Department only last year, noted that the arrest warrants received and issued during 2019 cited a wide range of offences. Among the principal offences that were cited were murder, grievous previous bodily harm, sexual offences, including the rape and sexual abuse of children, drug offences, robbery, assault, fraud and human trafficking. This shows the full scope of serious offences which can be subject to more effective criminal law enforcement as a result of the arrest warrant system. Some 109 orders for surrender were executed by the State in 2019, which involved 94 individuals. In addition, 51 individuals who were subject to the Irish-European arrest warrants were surrendered to the State in 2019.

I will briefly mention some of the main provisions of the Bill. Section 4 amends section 10 of the 2003 Act, which sets down the general provisions of the obligation to surrender persons on foot of an arrest warrant. The aim is to reflect as unambiguously as possible the requirement that a person will be arrested and surrendered by the State to the state that sent the arrest warrant, known as the "issuing state", where a private or criminal prosecution will be or is being brought against the person concerned.

Section 4 has been drawn up in parallel with section 26A of the Bill, which provides for the repeal of section 21A of the 2003 Act. The latter provision currently requires the High Court to refuse a surrender request where a decision has not been made to charge the person with, and try him or her for, an offence. The Commission's view is that the current section 21A represents an additional mandatory ground for non-execution of a warrant that is not provided in EU law. On legal advice, it is proposed to accept this approach and thus delete section 21A.

I am advised that the State will still be able to rely on section 10 of the 2003 Act to provide a similar safeguard, as the language used has a clear legal basis in article 1 of the framework decision, which provides that a European arrest warrant is issued with "a view to the arrest and surrender ... of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order".

Section 7(a) amends section 14(5) of the 2003 Act by providing that there is certainty with regard to the full release of individuals who are on bail where an arrest warrant is not produced in court on the required date. Section 7(b) provides that any such release does not prejudice any potential re-arrest and surrender and provides that a standard notice is to be added to the Schengen information system to reflect the fact that the release has taken place. The Schengen information system is the European Union-wide system for security and border management, which is administered in Ireland by An Garda Síochána.

Section 8 inserts a new section 14A into the 2003 Act, providing for the temporary transfer of the person who is the subject of an arrest warrant to the issuing state under conditions agreed by the High Court and a judicial authority in the issuing state. Subsections (4) to (6), inclusive, provide for an alternative to the temporary transfer where the person who is subject to an arrest warrant can be heard by a court in the State on the basis of a request made by the issuing state. Deputies may wish to note that my Department is currently in contact with the European Commission to confirm the exact nature of the legal changes required for this section. It is likely to be the subject of an amendment on Committee Stage.

The purpose of sections 9 and 10 is to align the timelines in the 2003 Act for the making of the High Court decision on the arrest warrant and the surrender of the requested person with the relevant provisions within the EU framework decision. The effect of the changes is that there will be a need for more expeditious processing of arrest warrant cases in this jurisdiction based on the requirements of the EU framework decision. A consequential amendment is made in section 11, providing that failure to adhere to the revised timelines for processing an arrest warrant for any reason does not constitute a ground to refuse to surrender a person and does not preclude the continued detention of the person under 2003 Act. This reflects the case of European Court of Justice, which requires that the deciding court must always retain the capacity to process arrest warrant cases to finality. Section 15 relates to the operation of the rule of specialty in section 22 of the 2003 Act. This rule is codified in international extradition treaties. It states that an extradited person should not be proceeded against, sentenced, detained or re-extradited in a requesting state for any offence committed before surrender, other than the offence for which extradition was granted. At present, section 22 provides that this rule may be waived by the High Court where certain criteria are met. Section 15 provides that the High Court shall waive rule of specialty where the criteria are met. This section also provides a time limit for the High Court's decision in this area.

Section 16 amends section 23 of the 2003 Act, which provides for the surrender of an individual by the issuing state to another member state in certain circumstances. Section 16 introduces an obligation and a timeline for the High Court in giving its consent to a request for surrender from the issuing state to another member state where certain requirements are met, such as where the person consents to the surrender. At present, the High Court has the discretion to give such a consent and there is no time limit for its decision.

Section 21 amends section 39 of the 2003 Act, which deals with the prohibition on surrender on foot of an arrest warrant, due to the person being immune from prosecution or punishment due to any amnesty or pardon. The amendment consolidates the existing provision into one paragraph, dealing with all forms of legal amnesty or pardon. In addition, the amendment clarifies that the State must have jurisdiction to prosecute the offence concerned if a person is not to be surrendered due to amnesty or pardon.

Section 22 amends section 41 of the 2003 Act, which deals with the concept of double jeopardy. Section 41 of the 2003 Act currently provides that a person cannot be surrendered for the purposes of being proceeded against in an issuing state where final judgment has already been given in the state, another member state or a third country for the same offence. Section 22 amends this to state that any sentence of imprisonment or detention already imposed in the state, a member or third country must have been served or no longer applied to the person for this provision to apply, as required by the EU framework decision.

Section 24 amends section 45 in 2003 Act changing from mandatory to discretionary the power of the High Court to refuse to order the surrender of the person where he or she did not appear to the proceedings giving rise to the arrest warrant. This section also provides that the High Court shall arrange for the issuing state to be informed of any request from a person for a copy of the judgment, which was the basis for the arrest warrant.

Section 25 amends section 46 of the 2003 Act, which currently prohibits surrender of a person who has immunity from prosecution as a result of holding any office or other position under the law of the State.

This is qualified to state that the prohibition on surrender applies while the person holds that office. Provision is also made for the High Court to request the waiver of such privilege in certain circumstances and for consequential changes to the time limits for arrest warrants.

Section 26 will provide for repeals, including the proposed repeal of section 37(1)(b) of the 2003 Act. At present, that section provides that a person shall not be surrendered if doing so would be incompatible with the European Convention on Human Rights, would contravene any provision of the Constitution or would be otherwise discriminatory or against human rights. It is proposed to repeal section 37(1)(b), deleting the reference to a contravention of the Constitution, as this is not provided for in the framework decision. I am advised this is required by the EU framework decision and that, given the remaining references, it will still ensure there is no overall change in the level of human rights protection provided by the section.

I look forward to the debate on the Bill, which will underpin a more efficient system for the European arrest warrant in Ireland, a system that is central to the fight against crime. I am pleased to commend it to the House and I look forward to working constructively with Deputies as it is progressed.

Deputy Martin Kenny

I am sharing time with Deputies Ó Laoghaire and Ó Murchú.

We welcome this legislation. Its introduction is timely, given it will transpose into Irish law an EU directive that has been around for some time. The EU in 2020 initiated infringement proceedings regarding the delay and it is unfortunate that we again find ourselves in this position. Another item of legislation from the EU has been around for a long time and it is only when the European Commission presses hard and takes infringement proceedings against the Government that it moves forward, and that is regrettable.

Nevertheless, we all recognise we live in a very interdependent world, and certainly an interdependent European Union, in which we have to try to work together. The free movement across borders, in particular, means there has to be a system in place whereby people who have acted criminally in any jurisdiction can be held to account. That is important. The Minister of State referred to the serious types of offences many of these people are involved in, relating to human trafficking, rape and sexual abuse, violence and even murder. All those crimes are very serious and we have to ensure they are dealt with appropriately in the states in which they have occurred.

Ireland is now the last country in the EU that works under the common law system. Since Britain left the European Union, we are the only ones who have that type of adversarial system, whereas all the other countries work under another type of system. That causes difficulties and problems and we need to acknowledge that and consider it when we examine these types of legislation. I have come across many incidents, some of which members of An Garda Síochána have spoken to me about, where persons have been the subject of European arrest warrants and the arrest warrants have sat on the shelf for years before anyone knew they existed. Sometimes it is only when a person falls foul of the law here that it is discovered a European arrest warrant has issued and has been sitting on the shelf for a long time. There are issues relating to the efficiency within this State in regard to ensuring those warrants are served properly and so on.

The Minister of State mentioned that under section 8, a person subject to an arrest warrant can be heard by a court in this State on the basis a request has been made by the issuing state. There was an example a number of years ago of a person who was subject to a European arrest warrant from Poland. The offence was a minor one and the person had been sentenced to less than six months in prison. The person had moved here and lived here a long time, had married and settled, had a family, a job and a life and was getting on with it and all of a sudden this came up against them. It was something from their past that had no relation to the life they were then living. Even the judge in the court at the time expressed his regret that he had no option but to send the person back to Poland to serve this minor sentence for a minor offence in the country they had come from. We will table amendments such that either a person in those circumstances could serve the sentence here or there could be some alternative method of dealing with such people where it is clearly a minor offence that has happened in the distant past, and where the person has clearly moved away from any criminal behaviour since then and has been a good and exemplary citizen in this State. There needs to be a way of examining that and recognising the circumstances.

Another issue that has been mentioned relates to the timelines for processing arrest warrants. We have to understand this can be a difficult issue. The system that exists in many European countries is such that the court not only decides the fate of the person but also acts as the investigator of the crime, which is entirely different from the process we have here. I might be going off on a tangent, but I sometimes think an element of that could be useful in this jurisdiction. There have been various tribunals and incidents where, in respect of the investigative processes used by An Garda Síochána, there were difficulties with the outcomes and where we now have problems with that. I often wonder whether there should be some kind of a judicial overview of that or some person independent of An Garda Síochána, who could ensure everything had been done correctly and followed through on. Certainly in regard to serious cases, that idea has merit and is something we should think about. While there would be an additional cost at the outset to put that type of system in place, and having some kind of judicial overview would cost the State more money initially, it would no doubt relieve the current situation whereby there are so many miscarriages of justice and so many other problems that come back to bite us in the long run because the State ends up paying compensation to people who have been badly treated by the State in that context. There are issues we need to consider in that regard.

We spoke earlier about the people coming from Ukraine, and a motion was tabled by the Social Democrats in respect of requests by some very unscrupulous individuals to seek sex in exchange for providing accommodation. The issue of human trafficking and the horrible instances thereof constitute an international organised criminal enterprise and we need to have a firm way of dealing with it. I mentioned earlier the people in University College Dublin who are carrying out research on the issue. They have told me that many of the women who are involved in this so-called sex trade move around to different countries. They might spend two or three weeks in Ireland, one week in Paris, another week in Amsterdam, a further week in Rome or some other city in Europe, and then they will be allowed to return to their home country, which is usually in eastern Europe, to spend a couple of weeks' holiday with their family and to bring back money with them, before they go back onto the same route once again. That demonstrated to me that very serious international crime gangs are involved in that type of activity. We need to find an effective way of dealing with that. I am not sure whether Ireland has the strongest legislation for dealing with that; perhaps other jurisdictions do. If certain jurisdictions have better legislation or better means of dealing with it, we need to work co-operatively with them to ensure we can bring that type of activity to an end.

European arrest warrants are just one element of all this. While we want the legislation to be progressed speedily and we want to ensure it will be done properly, with no loopholes or other ways in which people can get around it, we also need to have a system that is fair. Some jurisdictions can have quite unusual results following criminal investigations, whereby people may receive serious sentences for what we would consider to be minor offences, and we need to be conscious of that in a judicial context.

In general, this legislation, while long overdue, is welcome. I encourage the Minister of State to progress it as quickly as possible. We will consider some amendments and he indicated that some may be tabled by the Government too. That is all part of the process we need to go through to ensure we will develop strong and effective legislation to deal with international criminal gangs and to ensure it will deliver for the public and the greater good.

Deputy Donnchadh Ó Laoghaire

This is a Bill that my party is in agreement with. The European arrest warrant is an important structure in terms of co-operation across jurisdictions in the EU. It is vitally important that there is strong co-operation to ensure that criminals are not able to use borders to escape justice and to frustrate justice and the forces of law. As Deputy Martin Kenny outlined, there are a number of areas that we might try to address.

In general terms, and while it does not specifically fall under the European arrest warrant, I note that the European arrest warrant creates an exception to the fulfilment of the arrest warrant where that prosecution is being taken on the basis of the person's gender, sexual identity, race, political opinion or other factors. While the Russian Federation operates outside the EU - it is not a member state - in principle that exception exists to protect people against political prosecutions. It is important that we as a society protect Russian people who have bravely spoken out against Putin and his completely inhumane actions in Ukraine. I am thinking, in particular, of the brave Russian news broadcaster who spoke out against the war two weeks ago. We will, I am sure, see this scenario arising in the context of Russian protesters in the coming weeks. We are conscious of the need to protect those coming from Ukraine and from the conflict but we should also be conscious of providing refuge to those Russians who are facing persecution because of their opposition to the Russian Government. That is an appropriate ground for asylum as well.

The other point I will make regarding that general area is that it is vitally important that, regardless of their ethnicity, gender or gender orientation, all coming from Ukraine fleeing conflict are received safely. Unfortunately, there have been reports of mistreatment of people at the Ukrainian-Polish border because of their race. That is something that needs to be addressed. It is vitally important the State ensures that everyone who arrives here is protected.

The European arrest warrant process is grounded on the assumption that all EU member states have a minimum standard in terms of the rule of law. It is grounded on the basis that we expect a minimum standard from jurisdictions. That is a reasonable expectation. The outcome that the European arrest warrant sees is an admirable and appropriate one but the quid pro quo is that we ensure that every jurisdiction does indeed have adequate respect for the rule of law and adequate independence in terms of its judiciary etc. Unfortunately, there are issues, the Minister of State will be aware of them, and some concerns have been raised regarding the application of the rule of law by some member states, in particular Poland. While the European arrest warrant needs to continue to operate and we need to be in a position to co-operate with other jurisdictions, it is vitally important that the Irish Government continues to raise those concerns with those jurisdictions that have undermined the rule of law. If we are to continue with the extradition and with the surrendering under the European arrest warrant, we have to be entitled to assume that there will be a fair trial. It is vitally important that where a member state is breaking from that basic norm, it is challenged in relation to it.

There are also areas where there is a need for greater co-operation across Europe. The Hague Convention is one example. The convention exists but I have come across instances where it can be challenging. This particular Hague Convention is in respect of family law and ensuring that there is co-operation across jurisdictions where there is family breakdown and there are disputes in that regard. I have come across instances where one parent or the other has departed either from Ireland or from another member state and gone to another country without making the other person aware and the dispute that ensues in relation to that. There are processes to resolve this but it can be challenging to ensure co-operation from the corresponding court in another jurisdiction. That is something in which there is room for improvement.

It is also vitally important that we have substantial co-operation in relation to the area of sex trafficking and sexual offences. I want to raise again a point that has been raised in the past that there is not a unified sex offenders register across the EU. There is some sharing of information but there is not a unified sex offenders register. That would be something that merits serious consideration. If we are to have co-operation on this basis in terms of arrest and so on, it is also important that member states trust one another in terms of the information that should rightly be provided about people who may be a risk as they travel to ensure that the authorities, in Ireland or in any other country, are in a position to monitor those people. It is vitally important that we have co-operation in those areas as well.

European co-operation on issues of justice is vitally important. It is something that my party very much supports but there certainly are areas that require tightening up and additional co-operation, as well as the safeguards to ensure that minimum standard that needs to exist across every jurisdiction.

Deputy Ruairí Ó Murchú

I will add my voice to those of my colleagues who have spoken in support of the European arrest warrant and the necessity for it. We have all said on many occasions here previously we need whatever tools are necessary for dealing with the wide level of international criminality at this point in time.

The Minister of State and I have spoken about drug gangs many times. Obviously, at this point in time the Minister of State is thinking about human traffickers and many others way beyond that. In dealing with the Russian invasion of Ukraine, we are also dealing with what is a criminal state with a number of criminal subcontractors or oligarchs who sometimes put their business-criminal resources at the benefit of the Kremlin. There will be interesting research in the next while as to what exactly happened in the Brexit vote and from where some of the funny money, for want of a better term, came. That is why it is difficult at present, particularly coming from where I do, to listen to the outworkings of what could be this Nationality and Borders Bill in the UK and how we could be looking at a British Government imposing an unworkable hard border for non-Irish and non-British people on the island of Ireland. This is utterly unacceptable and needs to be dealt with. Not only do we need to ensure, together with our international partners, that this is fought tooth and nail but we need to look at whether there are any legal mechanisms. Not only is it abhorrent, it is ridiculous. It would not be the first time that a British Government instigated an action that was in breach of international law.

Deputy Kenny brought up some issues and when one is talking about a European arrest warrant, it needs to be enacted within this State in a timely fashion. It does not make sense that the forces of law and order would lie on something for a particular period. I accept there may be difficulties from time to time in apprehending someone - people understand that - but justice has to be swift. We need that to happen.

Also, in some of these scenarios, one is talking about a four-month custodial sentence. That is not necessarily what one would consider a serious crime. It depends. As Deputy Ó Laoghaire stated, we do not necessarily have an equality of law and order throughout even the European Union. We all have spoken here many times previously on the rule of law issues, particularly in Poland and Hungary. While we are in a different place now and those countries are involved in dealing with a significant humanitarian catastrophe, the fact is that if we are talking about the future of the European Union and about a Union that wants to open itself up and that Ukraine and others are looking to join, it must be a European Union that is about justice, rights and equality. Therefore, the law, European arrest warrants and everything else must fit within that framework. It is absolutely necessary. That is the sort of Europe that we want and which is completely anathema to what we are seeing coming from Russia at present.

There is a significant piece of work to be done regarding due diligence on some of the subfactors within this legislation. That must be done as soon as possible. Beyond that, it is a necessary piece of work. We are constantly trying to catch up with two things, namely, transposing EU directives and laws and from a legalistic or cyberworld point of view in terms of where international criminality is at and ensuring that we have all the tools that are necessary to address it. Within that framework, we must also look at the weaknesses that exist in social media, especially in the likes of Facebook. We have all heard what Frances Haugen has said about algorithms that pick up on Punch and Judy and on what are far greater evils that exist in society. People are able to use it and weaponise it. Connected networks are also something that we will have to get a handle on to deal with all the ills and woes that exist across the world at this point.

Deputy Brendan Howlin

I have been long enough in this House to remember the tortuous and cumbersome extradition procedure that used to exist prior to the enactment on foot of an EU framework directive of the European arrest warrant legislation. The Minister of State is far too young to remember any of that, but I remember debates in this House and major battles in the courts before criminals could be extradited from here. It was a most welcome innovation, which began to match the pan-European law enforcement capacity with the growing pan-European and transglobal nature of crime. Some colleagues have already referred to that in terms of drugs and other areas of criminality. Like all EU directives, the EU Commission maintains a proper watching brief on the precise nature of each member state's transposition process and subsequent enforcement. The Minister of State has told us that the Commission had issues with our transposition and had commenced infringement proceedings against us. I have said in regard to several other matters, in particular in the justice area, that Ireland is often very slow in bringing legislation to transpose directives in a timely fashion into this House. It is often when a long-standing deadline is approaching or in cases where legal proceedings have been commenced in the European Court of Justice that legislation is presented here and we are presented with a deadline, as if somehow we have to act with a degree of alacrity when we should have been given proper time.

We begin the debate with that in mind. The ministerial and departmental advice in the briefing note we got is that the Oireachtas should act with expedition to avoid financial penalties being imposed on the State. I might suggest that the Department moves with greater haste to avoid putting the National Parliament into that position in the first place. I have said that about other issues. Respect is needed for the Parliament. We need adequate time and preparation. Pre-legislative scrutiny was completed during the course of last year, yet the Bill has been brought to the House on the basis that we will do it quickly.

In truth, as the Minister outlined in some technical detail, most of the changes that are to be brought about are procedural and technical in nature. They do not make easy reading either, because we are reading across existing legislation and amending legislation in that regard is often confusing. I am all in favour of consolidating legislation so that any practitioner or citizen would be able to read the law in a single volume rather than have to read it across various amending Acts.

As the Minister of State has set out, the issues, which include the confirmation of time limits for the making of decisions and for the surrender of persons on foot of arrest warrants, all seem very reasonable and proper. The Bill provides for close co-operation and communication with the issuing state and with Eurojust, where that is appropriate and necessary, seems straightforward.

The measure on introducing clarification of the circumstances in which an arrest warrant may be refused by the High Court is a matter of implementing practice. Providing for the consent from a third country before approving the surrender of a person who has been extradited here from that country is again proper procedure that is in accordance with the spirit and detail of the directive.

Another measure relates to procedural rules for the requested person, where the arrest warrant relates to a conviction imposed on the requesting state in the absence of the requested person. Again, these are codifying procedural rules that have arisen. These are matters that clearly need to be codified in our law to accord with the generality of the procedures applied across member states of the European Union and of the requirements of the directive itself.

One issue struck me, and I would welcome clarity from the Minister of State regarding it. He referred to the rule of specialty in regard to section 15. The explanatory memorandum states:

This rule is codified in international extradition treaties and states that an extradited person shall not be proceeded against, sentenced, detained or re-extradited in the requesting state for any offence committed before surrender other than the offence for which extradition was granted.

On the face of it, that seems most reasonable. One applies for a particular offence, and it can only proceed if the extradition is granted for that offence. How does it work if, for example, somebody was charged and extradited for a brutal rape and, subsequent to the extradition, the victim died and the issue then became murder? Could the warrant be subsequently amended to deal with that more serious issue, or could the person only be tried for the offence specified on the extradition warrant, that is, aggravated rape and assault? That is not clear to me and the Minister of State might provide clarity to the House in regard to it when he makes his Second Stage summation.

It is essential that we ensure we have robust mechanisms in place in every EU state so that those who commit serious crimes can be pursued across state boundaries. Too often, we have seen major criminal gangs operate in a multiplicity of states. The godfather, or now occasionally the godmother, of a criminal gang lives in one state and operates in a multiplicity of other states across the European Union. We must have the same freedom of movement to deal with the situation from a law enforcement perspective as the criminals have in operating from various jurisdictions.

The idea of a common European extradition warrant is something that needs constantly to be updated to keep track of developments. The development of this legislation is extremely important. One of the issues that arose from our co-ordinated attempts over the past 20 years and more to deal with criminal gangs, in particular in the multinational drugs area, was the development of the proceeds of crime legislation and the establishment of the Criminal Assets Bureau. In a previous debate, the Minister for Justice described that as perhaps the most important individual criminal justice initiative to impact on crime gangs in this State.

We have amended the proceeds of crime legislation on a number of occasions.

As colleagues have instanced, in recent weeks we have witnessed the unfolding horror of Russian aggression in Ukraine. It is unlike anything we have seen in our lifetimes and something that we thought we had confined to the horrors of the Second World War to see, in various cities across Ukraine but most focused upon Mariupol, the absolute annihilation of a city with no regard at all for the fate of its inhabitants who are experiencing unimaginable horrors as we speak. I mention this because I sought, as the Minister of State knows, to broaden the scope of our proceeds of crime legislation by bringing before the House the Proceeds of Crime (Gross Humans Rights Abuses) Bill, which has passed Second Stage and has been referred to the justice committee. I reference it now because it is important that we are seen to be acting in a very clear and decisive manner regarding those who are self-evidently engaged in gross human rights abuses and that we can, with the same determination and I hope with the same effect, act against them should any of them have assets in this State. I am not saying they have but if they do, we should be able to act against them and seize those assets in the same way we seized the assets, very effectively, of those involved in serious crime, including drug crimes, over the past 20-odd years.

I remember many of the same pushbacks to that legislation. It was said that it was unconstitutional or that we could not seize criminal assets without a criminal conviction because of constitutional protections and all that, but it has worked effectively. It would be a very strong signal. I do not mind if people who are self-evidently tied to gross human rights abuses want to go to an Irish court to get their property back and make their case. Let them defend themselves and their actions in the Irish courts. That is why I ask the Minister of State, and I know he has been very positive about it, to support that legislation and its quick passage through the Houses.

I look at what is happening in other jurisdictions. People have bespoke legislation to deal with the situation now and are fast-tracking it. In Britain, an entire day was spent amending its existing Magnitsky legislation to deal with this. We can do more. If the platform of legislation that I have presented needs to be supplemented, amended or reinforced, I will happily support that 100%, but we need to give a very strong signal of where we stand. On that matter, and I hope the Minister of State will take careful note of what I am about to say because it is something that needs to be brought to the attention of his colleagues, a communication has come my way regarding the operation of sanctions on named Russian persons that we are legally obliged to enforce. I will read the communication that I have. It states:

It is clear sanctioned individuals are hiding money through family members and that the sanctions are being sidestepped. As the individuals in question, that is, the family members, are not sanctioned they could legally challenge withholding payments. Guidance on this matter from Government is urgently required.

I ask the Minister of State to take note of that.

Where there is money in our financial services system that is not in the name of the sanctioned individuals who are named in the orders that are being made throughout the European Union, but their relatives, that allows them to simply sidestep the sanctions in that way. I am saying, in a broad spectrum way, that we need to have much more focus and attention on the significant sums of money that are churning through our financial systems to ensure that we are not in any way aiding and abetting the hiding of the tainted, filthy money of those who are in any way connected with the gross human rights abuses that are unfolding in front of our eyes in Ukraine right now. I ask the Minister of State to take note of that and pass it on to his colleagues, including the Minister for Finance or his Department, and to come back to me or the House regarding what exactly is being done in respect of the friends or family members - and family members were instanced in the communication I received - of named sanctioned individuals who might have resources in this State.

As already stated, the Bill is quite technical. It deals with strengthening, updating and simplifying in many ways the procedures we have that surround the application of extradition right now. I will end as I began by stating that it has come a long way from when we had a tortuous and difficult extradition system in this country with repeated court challenges and constant delays so that, in many instances, it proved impossible to extradite out of this jurisdiction people accused of very serious crimes. Having a pan-EU directive, transposed into a common interpretation across all member states, has been an enormous advantage and boon. On behalf of the Labour Party, I am very happy to support this legislation, which addresses issues that have been raised in the application of the European arrest warrant process in our own systems but, more important, the requirements of the Commission as set out in the infringement proceedings over recent days. I certainly hope to give fair wind to its early passage and enactment.

Deputy Neale Richmond

I apologise for briefly nipping out to vote at the finance committee and for being somewhat breathless as a result. I thank Deputy Howlin for taking up as much time as possible but also for talking about a number of key issues that I will briefly refer to regarding this very important amending legislation. Its importance does not just relate to the European arrest warrant but to the amendments being tabled, seeing it passed speedily by the Houses and transposed into Irish law as quickly as possible because nothing is good if it stands still.

There is always an important responsibility on governments and legislators to improve, modernise and reform legislation. If we consider the importance of the European arrest warrant, it has been used nearly 400 times since its inception to bring organised gang members back to Ireland for trial and, in due course, incarceration, and for taking very violent criminals off the streets, not necessarily in Ireland but from their boltholes and places of luxury in exile. We have also seen it, very importantly, not just prevent acts of terror but allow an element of justice for serious acts of terror when we look at the arrests that have been made following the terrorist attacks in Paris and Brussels, the anniversary of which is this week.

A number of colleagues have referred to a couple of areas that are not necessarily directly covered by this legislation but lead us to discuss and think about them. Deputies Ó Murchú and Ó Laoghaire spoke eloquently about the rule of law in other EU member states, namely, Hungary and Poland, and the importance of this Oireachtas and, equally, this Government in tracking that, ensuring that the European arrest warrant will not be abused by Governments in those jurisdictions and that we will not send people back to legal systems that will not protect their rights as well as everything else. It is also crucial that we think quite clearly about the impact of Brexit on the European arrest warrant and the co-ordination of security in this jurisdiction. While it is extremely welcome that the British Government has moved the terror threat in Northern Ireland from severe to substantial for the first time since 2010, it cannot allow for an air of complacency.

Increased co-operation between the Irish and British Governments is important not only to tackle dissent and ongoing terrorism but also to deal with all aspects of criminality, from organised crime to petty crime.

I welcome the meeting in the past fortnight between the Minister for Justice, Deputy McEntee, and the Northern Ireland Minister of Justice, Naomi Long. I hope and expect that after the Assembly elections in May there will be another Northern Ireland Minister of Justice with whom we can have a working relationship because crime knows no borders. We know that in a European context and that it is crucial in the context of this island. That is why it is so important that we do not allow that relationship to weaken after Brexit. There have been arrests in England in recent months of violent and vicious criminals who have been active in this jurisdiction. Ensuring co-operation between An Garda Síochána and British police forces and the PSNI and other state agencies is important but we must also make sure that changes are made in legislation to reflect the profound changes that Brexit presents.

On a wider level, it is important that the existing arrest warrant is strengthened. In six to 12 months we will need to re-examine not only how we are transposing the arrest warrant into Irish legislation but also, from a European perspective, whether it is still fit for purpose in the context of dealing with the greatest number of displaced persons on the Continent since the Second World War. With 10 million people in Ukraine no longer having homes and as the war continues to be vicious, that number will only increase. Sadly, there will be those in the EU who will try to profiteer from their misery, whether by means of human trafficking, organised crime or scams and may prey on innocents, whether it is those fleeing war or the people who receive them or are trying to provide support. We have already seen it. No doubt people have had bogus collectors for Ukraine and refugees call to their doors. The number of these that operate across borders is gobsmacking. That is why we must ensure that the culprits at the centre of such activities can be brought to justice in due course.

While I support the speedy passage of this legislation, I call on the Minister of State or his colleagues to tell the next Justice and Home Affairs Council meeting that there must be a plan. Yesterday, when we debated the forthcoming European Council, I made a point about this matter. There is a lot of short-term planning taking place at the moment. That is understandable as a reaction to a crisis and the fact that refugees must be housed immediately and humanitarian aid and support to the Government in Ukraine are needed, with other EU states providing military and lethal support too. However, we must realise that the impacts of this conflict will be with us for some time. That is why there is a responsibility on the Oireachtas, the Government and, in particular, the EU to take that into account in the context of every aspect of how we operate in this State and beyond.

The European arrest warrant has been a success. Deputy Howlin eloquently laid out what things were like before it was put in place, with difficulties in getting extradition orders and in delivering justice for victims. Even today, opportunistic criminals hide in exile in places such as Dubai, South America or further afield, on the run from justice and the consequences of their actions. That is why the EU has a role in working bilaterally with other like-minded jurisdictions to ensure the most modern and efficient processes are in place and that we close these safe havens for criminals. They have been there since the beginning of time. However, as the world gets smaller, there can be no place where someone can hide in defiance and leave behind a legacy of misery and destruction the likes of which most of us cannot fathom.

Deputy Chris Andrews

I welcome the Bill. It is important that laws relating to European arrest warrants are brought up to date with the European Council's framework decision of 2002. That is long overdue. As a result of the delay in doing it, infringement proceedings were initiated in 2020 by the European Commission against Ireland. What is proposed with regard to the European arrest warrant will update the current extradition system between member states. There is a clear objective here, namely, to permit the free movement of judicial decisions in criminal matters across the EU.

While I welcome the Bill, there are, however, aspects that need to be clarified. Where will the Court of Appeal stand in the context of European arrest warrants if the Bill is enacted? I am also concerned that certain parts of the Bill are excessive, such as the provision relating to the extradition of someone to serve out a sentence of just four months. There is no option within the Bill for minor sentences to be served within the Irish prison system. Will the Minister of State clarify the position in this regard? Sinn Féin will support the Bill, but we will table amendments to correct flaws and strengthen different aspects of it.

While we are on the subject, it is important to note the abuses carried out by some states. Countries such as Great Britain have used requests for extradition to suppress civil liberties. Most notably, Julian Assange remains in a maximum-security prison despite not being charged with a crime in Britain. The charges he faces in the United States are politically motivated. This view is shared by every major press freedom organisation. The charges he faces are also a serious attack on journalism. It gives the green light to imprison journalists for simply doing their job. The abuses and suppression of civil liberties that Julian Assange endures at the hands of the British Government should not be tolerated by the international community. The fact that it is tolerated on the grounds of an extradition case is an absolute disgrace. The Government is like disinterested passersby when it should be shouting stop. Using the extradition process as a tool for political attack cannot be tolerated.

Deputy Catherine Murphy

The Social Democrats will support the Bill, which is largely technical in nature. It amends aspects of the European Arrest Warrant Act 2003 to ensure compliance with the 2002 framework decision on the European arrest warrant and the surrender procedures between the member states. As others have noted, every few weeks we come to the House and talk about our need to do better on transposing European directives and framework decisions. I have lost count of how many times I have stood here and debated legislation which was drafted either to avoid infringement proceedings or financial penalties. The Government often tells us that we are good Europeans but in this regard we are very poor. Is there a wall planner of timelines outlining things that will hit a critical point of things if we do not deal with them and avoid that scenario? I have asked in the past how this is managed.

The Department of Justice is a conveyor belt of legislation. A great deal of legislation goes through there. We all accept that. However, we will have to deal with the legislation one way or another. I do not understand the notion that delaying it is beneficial. There are very high administrative costs as well as legal costs and back and forth with the EU which must add to the difficulties and to the timeline. If the Department requires additional staff for drafting to deal with these things, I do not understand why that does not happen. The Government will pay for it one way or another. Infringement proceedings were launched against us in 2020 for failure to comply with a number of outstanding issues in the 2002 framework decisions, in particular those relating to mandatory time limits.

The European arrest warrant system has been operational since 2004 and has been a vital instrument in combating cross-border crime in the EU.

It ensures the open borders and freedom of movement we enjoy as members of the EU cannot be exploited by those looking to evade justice. The system allows for a simplified cross-border judicial procedure used in prosecuting or executing custodial sentences or detention orders, with warrants issued by one member state being valid in every member state. One of the most beneficial aspects of this arrangement is the strict time limits it imposes. We must remember that also benefits the accused and ensures he or she is not kept in custody for lengthy periods while awaiting a decision. The country where the person is arrested must make the final decision on the execution of the warrant within 60 days after the arrest if the person does not consent to surrender. If that person does consent then the decision must be made within ten days. This is in stark contrast with the lengthy extradition procedures that used to exist between member states prior to the framework decision. I remember some of those cases that were played out, especially between Ireland and the UK. We have been absolutely failing to comply with the mandatory time limits and it is welcome we are going to remedy that now.

It is also a welcome feature of this legislation that there are provisions to refuse a request to transfer a sentenced prisoner where there is a belief he or she may face discrimination on grounds of sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation. We can never be complacent about our responsibilities to protect individuals from discrimination within the EU. The EU has long had quite a poor record when it comes to sanctioning member states for breaches of treaty and human rights. The actions of certain countries over the past few years, like Hungary and Poland for example, have raised particular human rights concerns. Women’s rights, freedom of expression, judicial independence and the rights of the LGBT community have been under attack in these jurisdictions for some time now. Last year, Hungary passed a law outlawing the distribution of content that is deemed to portray or promote LGBT people to minors. This follows legislation enacted in 2020 which made it impossible for trans or intersex people in Hungary to change their gender legally. It is welcome to see the EU begin a substantive action against Poland and Hungary with daily fines and withholding payments due to violations.

We are now in a particularly difficult time with the likes of Poland, for example, which has a monumental task in relation to the intake of Ukrainian refugees. On the plus side, there is some remarkably good work being done on that and on the other hand, there are some very worrying signs at the border regarding the treatment of ethnic minorities or people of colour. We need to use all the tools at our disposal to protect human rights and the rule of law within the EU. Any rogue member state should of course face sanction. Europe is really that beacon and that requires us to protect that by making sure that there is compliance within the member states.

I turn to the issue Deputy Howlin referred to, namely, his proceeds of crime legislation. I spent about a year going backwards and forwards with the people in the Office of Parliamentary Legal Advisers, OPLA, essentially trying to construct a Magnitsky Act. Bill Browder was good enough to come over and meet some people here who wanted to collaborate on that. I have copious amounts of legal advice that they were able to give me and we commenced some drafting, which I had to pause because it became very clear a genuine Magnitsky Act would be required to come from Government because it would require a money message. A Magnitsky Act that would survive any challenge would require fair procedures. There is no doubt that would be a requirement for an investment if we were to do that.

I am aware the European Union has adopted a Magnitsky Act but I do not see how that can actually function as Europe is not a jurisdiction. It is the individual jurisdictions that would be required to identify and prosecute things like, for example, major human rights abuses or major corruption. That is unfolding as we talk about it. We are looking at the money that is washing through our financial services sector. Some of that is in shell companies and with some of it is very difficult to get at the ownership. I have no doubt there are people avoiding sanctions that are justifiable and that should be applied because they are not the direct person who has been sanctioned but who may well be friends or relations.

In 2009, Sergei Magnitsky, who was a tax accountant, revealed huge tax avoidance or tax scandal and Mr. Browder wrote about this in his book Red Notice. Reading it reveals a whole other world we did not know existed. After that, the US put in place a Magnitsky Act and that has been followed by Canada and a whole lot of jurisdictions across the European Union. Collectively, there are quite a lot of us who have done work on this and would be enthusiastic about sharing the work we have done to see if we can take this over the line. However, it will fall to Government because I do not see how it can be done by an Opposition party such that it can travel the entire distance of having the legislation passed and enacted. It is legislation that there is a desire to see passed, certainly on the Opposition benches.

It must be done at the individual country level. That is where it can be most beneficial, rather than using the wider European Magnitsky Act that went through the European Parliament. I hope there will be scope to do something on that on a cross-party basis possibly, because as I said there is much useful information which several of us have and which we would be more than willing to share. I am sure the likes of Mr. Browder would be more than happy to come back over and share exactly what is needed. It is not about trying to have legislation that allows people it is not intended to target fall into its categories. It is instead about the very high level of corruption and the very high level of human rights abuses. It should be possible for us to do that as a united Parliament.

Acting Chairman (Deputy Joe Carey)

I have slots available for the Regional Group of Independents and the Rural Independent Group but unfortunately we do not have any of their Members present. I therefore call on the Minister of State to reply to the debate.

Minister of State at the Department of Justice (Deputy James Browne)

I thank Deputies for their very considered and measured contributions on what is technical but very important legislation amending the European arrest warrant. The main purpose of the Bill is to address a number of issues identified by the EU Commission with our existing legislation in this area informing EU infringement proceedings. That is why we must enact this Bill in a timely way. The Bill also takes the opportunity to make a number of technical amendments that are necessary.

I hear what Deputies are saying on the delays with implementing a number of EU directives. Deputy Catherine Murphy pointed out the issues seem to arise in here on a regular basis. That is partly because when I was appointed a Minister of State at the Department I recognised there was a significant backlog of legislation. Working with officials in the Department, we have now cleared almost all of the backlog.

We now have this Bill, which needs to be passed, and the Criminal Justice (Mutual Recognition of Custodial Sentences) Bill is on Report Stage. In conjunction with the Oireachtas Committee on Justice, a number of amendments will be made to the latter. Two other matters relating to firearms will not need legislation but will need regulations. At that point, we should have all of the backlog cleared. This Dáil has already cleared the Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021, the Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2021, the Counterfeiting Act 2021, the Criminal Justice (Smuggling of Persons) Act 2021 and the Criminal Justice (Mutual Recognition of Decisions on Supervision Measures) Act 2020. With Opposition parties, which have been proactive and helpful, we have cleared the large backlog. I will keep a close eye on the situation so that we do not lapse again only to have to pass legislation quickly so as to avoid infringements and penalties.

Deputy Howlin referred to the rule of specialty, particularly as it related to section 15. It is allowable to have parallel European arrest warrants. Where someone is being detained in Ireland under a European arrest warrant, a separate warrant can issue if the charge based in the issuing state has changed. My understanding is that, even where the person has been extradited, a European arrest warrant can be issued if the charge changes, but I will seek clarification. That was the point the Deputy raised, namely, what would happen where the charge became a different or more serious charge post extradition. My understanding is that another arrest warrant can be issued even when the person is in custody in the receiving or issuing state.

Deputy Howlin referred to his Magnitsky Bill. Deputy Catherine Murphy also referred to it. The Minister, Deputy McEntee, is working with Deputy Howlin on the matter. The Bill's principles are important. I will leave it to the Minister to address the matter.

Deputy Andrews asked about the Court of Appeal. European arrest warrants can be appealed to that court.

Regarding minor sentences, the minimum level of charges is provided for in EU law. Therefore, there is no discretion in Ireland over what minimum sentences are covered under the European arrest warrant. I have dealt with a number of European arrest warrants while practising. Some of the charges and sentences in other countries were surprising. Nonetheless, this matter is covered by the directive and we are bound by that.

Extraditions to the USA have nothing to do with this Bill or European arrest warrants, so I will not comment on that matter further.

Deputy Howlin raised the issue of sanctions on named persons. Strictly speaking, that is a matter for the Departments of Foreign Affairs and Finance, but I will raise it with the latter. This Dáil passed the fifth anti-money laundering directive to tighten up laws around money laundering and terrorist financing.

Deputy Martin Kenny raised a number of important issues around delays. The infringement notice was received in October 2020, pre-legislative scrutiny was undertaken in September 2021 and we are moving forward with the legislation as quickly as possible. Only three member states have not been found to be in infringement where European arrest warrants are concerned. This is technical legislation and every state has its own laws. Some, like Ireland, have constitutions. As the Deputy pointed out, the only other EU country with an element of common law is Cyprus. All of this has caused technical difficulties. Many states are having problems in ensuring that European arrest warrants are applied uniformly across the EU. We will be keeping a close eye on the situation.

I thank the Deputies for their contributions on this Bill.

Question put and agreed to.