We are meeting with the Minister for Justice, Equality and Law Reform in regard to the forthcoming Justice and Home Affairs Council meeting of 19 December 2002. I welcome the Minister and his officials. We are very appreciative of the effort made by departmental officials in providing briefing material and executive summaries to us in such a prompt and efficient manner despite the late change to the agenda.
Justice and Home Affairs Council Meeting: Ministerial Presentation.
I thank the Chairman for inviting me to address the joint committee. Members will be aware that I am a very strong advocate of improved Oireachtas oversight of our European agenda. I very much welcome, therefore, this first opportunity to discuss with the committee aspects of that agenda, in the context of the meeting of the Justice and Home Affairs Council next Thursday, 19 December 2002. I look forward to meeting the committee on a regular basis in the coming years to provide substantial support for Oireachtas scrutiny of EU policy and legislation which affect the functions of my Department.
It is very useful to have debates in committee on European Union matters. The committee format is less rigid and allows for a more meaningful exchange of views and deeper engagement with the important issues under scrutiny. I am aware that the committee has received a considerable amount of documentation for this meeting which reflects the number of items on the draft agenda proposed for discussion by the Danish Presidency. I acknowledge the kind words spoken by the Chairman in regard to my officials. The draft agenda was revised as recently as last Friday.
The committee of ambassadors, COREPER, is meeting in Brussels today, after which meeting a final agenda will be issued. At this stage it is not certain that all of the items proposed in the document given to this committee will be on the final agenda. Some may be removed while others may be added. It is worth recalling that work in the Justice and Home Affairs area represents a considerable amount of the overall work of the Council of Ministers. It is recognised in all member states that work in combating transnational crime, be it in the area of terrorism, trafficking in people or drugs, money laundering, child pornography and other forms of crime, requires closer co-operation between member states. Ireland has played a full role in these matters and will continue to do so.
As members of the committee will see, the agenda covers a wide range of topics. Before the meeting of the Council, there will be a meeting of the mixed committee which comprises Ministers of the 15 member states and Ministers from Iceland and Norway. That will discuss various Schengen topics. As regards the meeting of the Council, there are 11 substantive items on the agenda ranging from Europol to penalties for drug trafficking.
There is also a long list of A items. Members may not know that A items are listed before the Council for agreement without debate as they have already been the subject of detailed considerations. One of the A items is the second round of mutual evaluations on law enforcement and its role in the fight against drug trafficking. This concerns summary reports on a series of five evaluation visits, including an evaluation of Ireland. It is noteworthy that the experts stated that they were impressed by the personal involvement of the Taoiseach and the Ministers in tackling the drug problem via their membership of the Cabinet committee on social inclusion and drugs. This body was seen as symbolic of the high priority given to drug issues in Ireland. Moreover, the experts considered that it sets a clear example, both nationally and internationally, of the importance of personal involvement at all levels of society in combating drugs.
The committee has been provided with information on each of the agenda items. I am prepared to comment on each of them, Chairman, if you wish me to do so. However, bearing in mind that time is limited, it might be of more interest to you and to the members if I respond to issues raised rather than attempt to do a survey of the territory.
Perhaps the Minister could comment on a couple of matters. As regards the list of A items, one such item highlights acts against the environment which would be considered criminal offences. What is the Minister's position on acts against the environment and how serious does the Government view the matter?
As regards A5, a non-convention report on terrorism which was drafted by Europol, there are a number of matters in relation to the Provisional IRA, the Continuity IRA and the Real IRA. Is the Minister's position in line with that? Has there been any diminution in the threat these bodies pose to national security?
As regards A9, a report was done after a series of visits to five countries, including Ireland. Concern was registered about the widespread availability and recreational use of synthetic drugs, particularly by young people as part of their leisure activities. From talking to young people in their late teens and early twenties, it seems that the use of ecstasy and cocaine in Ireland is becoming a problem. How does that fit into the European context?
I was delighted that part of the report lauded the personal involvement of the Taoiseach and Ministers in tackling the drug problem via their membership of the Cabinet Committee on Social Inclusion and Drugs. The group suggests that other countries should take on board what the Taoiseach and the Ministers do in this country in that regard.
As regards A22, a proposal to lay down minimum standards for the reception of asylum seekers in member states, what is Ireland's position in that regard? Do our standards meet European standards or can we improve them?
I welcome the Minister. The documentation is voluminous. It would be useful if we could get an executive summary of the main areas which might give rise to controversy or debate or which are new on the agenda. Many of the issues with which we are dealing are old issues, such as drugs and terrorism to which the Minister referred. Other issues are ongoing and it is important to deal with them. Some of the issues are framework decisions which are being dealt with without debate. The Minister said that the list of A items is dealt with without debate. Where are the A items on the agenda? Are they subject to approval and how are they dealt with prior to that? What level of consultation has taken place to enable them to be presented without debate?
The document on racism and xenophobia is a Council document. I presume it will be stronger than a convention in terms of its application to the member states. Perhaps the Minister might comment on its origins and its application to this country.
As regards the confiscation of the proceeds of crime, that is part of what we discussed earlier. We asked the Garda Commissioner in the last session about whether the powers given to the Criminal Assets Bureau in existing legislation are sufficient or whether we need to introduce amending legislation to apply them more broadly. Is that the type of provision envisaged under the draft Council framework decision?
As regards extradition and judicial co-operation in criminal matters between the European Union and the United States, what is the level of debate on matters relating to areas outside the jurisdiction of the European Union and the Council of Ministers? How are such matters discussed and resolved when one is dealing with a different sovereign country?
As regards the points raised by you, Chairman, the environmental crime framework decision was recently discussed at the committee. It will soon come before both Houses for Article 29 ratification. It obliges member states to criminalise with serious and proportionate penalties environmental crime committed within their jurisdiction. It covers items such as pollution offences. It is a minimum framework for the European Union member states which obliges us to take our responsibilities seriously. As regards Ireland, it does not add much to the price of eggs. We have covered the basics already. It is a framework decision which will be binding on all new member states. It will form part of the European acquis and, therefore, it will be binding on all new entrant states and also on any further applicants. They must have a criminal law which at least corresponds with such offences.
The Chairman also asked about the Real IRA, the Continuity IRA and the Provisional IRA. As regards the Provisional IRA, our intelligence is that it is respecting its ceasefire. There have been a number of criminal incidents involving suspected members of the Provisional IRA or Sinn Féin which have caused us some concern. As regards the Good Friday Agreement, it is the joint assessment of Commissioner Byrne and Chief Constable Hugh Orde, and it has been repeated publicly on a number of occasions, that the Provisional IRA remains committed to maintaining the ceasefire.
The position regarding the Real IRA and the Continuity IRA is different. Both organisations have engaged to varying degrees in armament and, on occasion, attempted deployment of weapons and bombs. There has been a remarkable degree of co-operation between the Police Service of Northern Ireland and the Garda Síochána. A number of bombs, mortar devices and other items have been seized in transit to Northern Ireland, thus averting serious terrorist offences. There is also evidence that a number of these organisations have fairly extensive support structures within the Republic which engage in supplying them with material. I am sure the Chairman will have noted the seizure of firearms and semtex in Limerick recently. That is indicative of the fact that there is a group of evil-minded people who are determined to try to re-ignite the civil conflict in Northern Ireland, notwithstanding the adoption by the people on both parts of the island of the Good Friday Agreement. Vigilance in respect of those organisations remains high. There is evidence that both are attempting to recruit new members and that they are having some success from outside what would have been considered traditional Republican circles. I strongly condemn that.
As regards drugs, the forthcoming JHA Council will have before it a proposed framework decision in relation to the minimum element of drug trafficking offences. That framework decision has been delayed, for as long as I have been the Minister attending these meetings, by disagreements related to the Netherlands situation where they refused to adopt a common minimum definition of criminal drug trafficking in respect of the supply of cannabis through what are termed "coffee houses" in Holland. The Dutch look at the issue differently from most other people. Consequently, we have not been in a position to make significant progress on that front.
Deputy Costello asked about the A list. It is similar to what we experience in the Dáil, namely, the matters which are for adoption without debate.
The devil is in the detail.
Exactly. There would have been extensive negotiations in each of those cases. Matters go on the A list when they are agreed and compromises are reached, while some matters are on it from the beginning. If they are non-controversial, they are put on the A list because there is an indication from the member states' representatives at COREPER that there will not be a problem. The A list is like the Order of Business in the Dáil in that it is dealt with on that basis.
Deputy Costello also asked about the framework decision on racism and xenophobia. That is of some interest because under the European arrest warrant, for which there was a previous framework decision, crimes of racism and xenophobia were set out as one of the crimes in the list of offences to which the European arrest warrant applies. What is a crime of racism and xenophobia? This framework decision is trying to establish what everyone agrees by that term. It proposes a number of things in Article 1 which would amount to racism. Some of these are fairly familiar to Irish people.
Article 1 states that each member state shall take all measures necessary to ensure that the following intentional conduct is punishable, at least when threatening, abusive or insulting: public incitement to discrimination, violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religious conviction, descent or national or ethnic origin. Some of the member states still have a problem with incitement to discrimination because they believe it is not racism. Religion is included in the article and some of the member states question whether that is covered by racism and whether racism is different from religion. The committee will appreciate that anti-Islamic propaganda, for example, is co-terminous in many people's minds with racism. Would a sectarian speech in Northern Ireland, for example, amount to racism? The article refers in (b) to the commission of an act referred to in (a) by public dissemination or by the distribution of tracts, pictures or other materials.
Paragraph (c) is also interesting and I have raised a question about it. It refers to public condoning, denial or gross trivialisation of crimes of genocide, crimes against humanity and war crimes, as defined in the statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religious conviction, descent or national or ethnic origin. That covers such things as denial of the Holocaust. In some countries, particularly in Germany, it is an offence to deny the Holocaust or to trivialise it to say it did not matter. Professor David Irving is free to write books, to speak his mind and to do whatever he wishes. He is free to say that the Holocaust did not occur, although all of us know that it did. People are free to say things, although factually we disagree with them. That is an example of an issue on which, if the framework decision is agreed by Ireland in its current form, we will be obliged to pass a new law to criminalise Holocaust denial and similar offences.
A set of defences, some of which refer to free speech, is proposed in Article 8. Do we want a law which states that free speech will be an offence? Deputy Bruton and I exchanged views in public recently on this issue. One must ask if it is necessary for European co-operation that the German anti-racism law should apply across Europe or if it can be left at a lesser basis. If this was decided by qualified majority, would my objections on free speech grounds be heard or would people say it is an odd view from a small corner of Europe which can be ignored?
We will discuss that matter on 14 January.
That is correct.
The USA extradition issue is interesting because there are a number of issues.
What is the Minister's position as regards discussing that item? Will he present the position he has articulated to us?
There is a negotiation process in train. I am trying to put into the text of the framework decision a statement that it does not oblige member states to criminalise any behaviour where that would cut across their constitutional notions of free speech. That is the kind of thing I am trying to negotiate and the Presidency has come up with a text to accommodate me on that. So, perhaps, we are moving towards an agreement. They want to put it in the recitals and I want it to be part of the text of the agreement itself.
Will the Minister be adding another article to it?
Something like that. The point we will be discussing on 14 January is whether I would have any leverage to do that on behalf of Ireland if QMV applied. That is the issue.
On the issue of extradition, there is a considerable degree of uncertainty as to whether the agreement between the EU and the US will in fact come into operation. As things stand, EU member states have individual bi-lateral agreements, in every case I think, with the US. This is an effort to introduce a new simplified extradition arrangement with America on behalf of the EU member states. It would not seriously affect, and is more or less in line with, the existing Ireland-US treaty.
Some of the EU member states have quite interesting constitutional problems with it in relation to the death penalty in America. We have a particular arrangement whereby we can take an American assurance that the death penalty will not be imposed. Other member states say that is not enough and that they cannot possibly extradite somebody to America in respect of an offence which could carry the death penalty. It is not a matter or whether it will, but whether it could. For instance, Portugal's constitution prohibits it from sending people away for life imprisonment. Life imprisonment as a concept is constitutionally prohibited in Portugal; it has to be for a definite period and one has to have some chance of getting out during one's lifetime, as I understand it. Other states do not have that arrangement. I do not know whether that agreement will in fact come to pass.
On extradition generally, the European arrest warrant has now been adopted as a framework decision. The Government recently adopted the framework of the Irish scheme to implement it into Irish law. It has to become effective from 1 January 2004. It will sweep away extradition arrangements between all member states of the European Union. Among other things it will, for instance, replace the British-Irish arrangements whereby the attorneys general of both jurisdictions scrutinise files. Extradition arrangements will now have to be dealt with on the same basis for all member states. That is one of the consequences of the framework decision.
What sort of talks have gone on with the United States in relation to these matters?
There are bilateral negotiations. At the last JAJ meeting there was a considerable degree of pessimism as to whether an EU-US deal would be hammered out. It was thought more probable that the existing bilateral agreements would remain in place, rather than reaching a new agreement for them all. It is a complex situation, one has to build on the existing bilateral agreements, respect everybody's individual constitutional arrangements, and then improve methods for processing requests between Europe and the US.
The extradition system we have with Britain is not in place in most countries. Arrangements are already in existence in Scandinavia, but most extradition arrangements are state-to-state matters which are conveyed through diplomatic channels and filter down through the legal system. The arrangement we have with Britain of a warrant being presented from one court to another is replicated in some European situations but it is not normal there. Our extradition arrangement with America is a very workable system and it is not difficult to extradite people in either direction. The real question is to try to simplify procedures between all member states and America in the context of the fight against terrorism.
In the context of extradition to America and the difficulty of the death penalty there, is the Minister dealing with the Federal Government of the United States? To what extent would any arrangement which may be made impinge upon individual states which have their own approaches to the death penalty which vary from state to state?
Does the Minister regard the new extradition arrangements envisaged between Ireland and Britain as an improvement on or a watering down of the existing arrangements? Over the years those extradition arrangements have evolved and many procedural changes have occurred due to the situation that existed. Will the new extradition arrangements between Ireland and the United Kingdom, as envisaged by the Minister, be less stringent than at present?
When Ireland signified its agreement to adopt the European arrest warrant it made a declaration at the same time that it would not render people to other countries in Europe for the purpose of investigative detention, but only for the purpose of trial. That is because the common law system means that one turns up one day for trial in court, whereas many countries have a civil law system of investigative detention whereby a suspect is put into custody and examined at length over a number of months, or sometimes years, by a judge d’instruction which is an examining magistrate.
We have a slightly different arrangement in that we have never allowed our citizens to be extradited for purposes of inquiry alone, in other words to participate in what, in effect, is a murder inquiry rather than a trial. Under the new arrangements, however, one cannot protect one's own citizens from that process under the European arrest warrant. Ireland has signified that in our statutory measures to implement the arrest warrant framework decision, we will insist upon a mechanism, which is being drafted at the moment, to ensure that people will not be extradited simply for investigation. In other words, they will not be plucked from Westmeath and sent to Sardinia to participate in an investigation there, but if there is a case for them to meet they will do so in a formal trial.
The Deputy also asked about the United States where we only have an agreement with the Federal Government. In the American scheme of things, the Federal Government is the only institution which has the right to conclude international agreements on behalf of states. The states in America have pooled their sovereignty completely in their federal system and it is not open to the state of Nebraska, for example, to reach its own agreement with Ireland; it has to come through the US Senate. That is the way things are.
We have an extradition agreement with America and it is not quite mutual. For instance, we will respect an American warrant which seems to correspond to an offence in Irish law. The Americans, in respect of their citizens, require us to establish something short of a prima facie case by affidavit.
Would the Minister have a difficulty if the extradition was to the state of Texas where use of the death penalty is widespread?
Yes but we have arrangements in relation to that. We will not extradite somebody to the United States in respect of an offence which carries the death penalty unless we have an assurance from the United States that the death penalty will not be carried out. That is in article (vi) of the agreement which states:
When the offence for which the extradition requested is punishable by death under the law of the requesting state, and is an offence which is not so punishable under the law of the requested state, extradition may be refused unless the requesting state provides such assurances as the competent authorities of the requested state consider sufficient that the death penalty, if imposed, will not be carried out.
Would such an assurance from the federal authorities in the United States bind the state authorities?
As I understand it, it would. The state could not carry out an execution. The President would be bound to pardon a person on foot of his international obligation to Ireland. Some European countries regard that as insufficient protection. They would not extradite someone unless it were legally impossible for the person to be even sentenced to death, let alone have to rely on a presidential pardon to escape the death penalty. The Irish system, which was concluded in 1983, and the ultimate mechanism for ensuring that the death penalty not be carried out if the state attempted to do so, is that the President of the United States would pardon the individual.
The next committee meeting on 14 January may be triggered by the report of a working group which I chaired on the Convention on the Future of Europe, which has recommended a number of changes in the areas of asylum, immigration and criminal law and co-operation between states on policing matters. Before the committee comes to any conclusions about this, I would welcome the opportunity to make a formal presentation on the content of the report. I was not the only participant representing the Dáil who was involved in the preparation of the report - Deputy Pat Carey was also involved. I hope the committee agrees to hear a formal presentation on the thinking which led to this consensus report after much work and participation by all EU member states.
This relates, of course, to justice and home affairs matters so it is entirely within our remit.
Yes.
I strongly support Deputy Bruton's proposal. He should be facilitated to explain the background to the report and its conclusions to the committee because it is such an important issue. I am anxious that the report and any response to it receives a fair hearing.
The committee is grateful to Deputy Bruton for his offer and will take him up on it in due course.
It may interest the committee to know that, in the preparation of the report, we heard from the director of the federal police in Belgium, Mr. Abbott from the national crime intelligence service in the UK, people from EUROPOL, EUROJUST, representatives of various universities and people from the border guard units of various countries.
Will the Deputy be in a position to attend on 14 January?
If I am in the country, I will. The convention is meeting all the time but I will endeavour to be here to make a presentation before that. However, I may not be here on 14 January.
We will make every effort to facilitate the Deputy and the other members of the convention.
Even if Deputy Bruton were not in the country, it is important that he be in a position to present any written commentary on the report he wishes to.
The spontaneity of dialogue can never be equalled by paper communication.
It sounds like a fascinating discussion coming up but I am afraid I will not be able to make it on 14 January either so perhaps——
That was just a point of order. Deputy Bruton has the floor.
One directive we have not reached agreement on is the framework decision laying down minimum provisions for the constituent elements of criminal acts and penalties in the field of drug trafficking. The Minister will agree that this was highlighted as one of the priorities we were to get agreement on in the Tampere Council decision. In paragraph 48, the Council - including the Taoiseach - identified action on this as important, along with trafficking of human beings, exploitation of women, sexual exploitation of children, hi-tech crime and environmental crime. It is a great shame this report has not been concluded. The Minister has drawn attention to the fact that it is being blocked, under the principle of unanimity, by the Netherlands.
Can the Minister envisage what will be the situation with 25 countries in the EU if we have difficulty getting this through because one country out of 15 can block it? We are more likely to find one country out of 25 blocking various proposals. The Tampere Summit set down an ambitious agenda in this area which, under existing procedures, is not being fulfilled. The Minister has drawn our attention to the specific example where action has not been taken because the procedures are unduly slow. Will he comment on that and say whether - as I assume is the case - he is in favour of the directive as it stands?
I share some of the Minister's concerns about the need to preserve free speech. Does the European Convention on Human Rights not state that freedom of speech is one of those rights? Would any implementation of EU directives on racism or xenophobia not have to be interpreted in the context of the right to free speech we enjoy under the European convention? Is it the Minister's contention that the provisions of the European convention in the matter of free speech are insufficiently robust to protect us against the concern he expressed? If things were as he described I heartily share his concern. In that context, what are the Minister's views on the incorporation of the charter of fundamental rights of the European Union, which also has provisions regarding free speech, into the treaties? Would the incorporation of the free speech provisions into the charter be helpful in dealing with the problem he has referred to here regarding possible unduly severe interpretation of the ban on xenophobic speech?
I have an issue regarding the Provisional IRA. It is stated that the ceasefire, declared in 1997, continues to hold. Does breaking someone's leg with an iron bar while holding a gun to their head with the threat of killing them constitute a breach of the ceasefire? This activity has been ongoing, so what does a ceasefire mean? Surely it is a breach to threaten to use a weapon if the threat is designed to get people to do such unnatural things as allowing their legs to be broken by someone with an iron bar. How does the Government arrive at the interpretation that the ceasefire has not been broken when these punishments are meted out on both sides of the Border by the provos?
I would like to have the Minister's appreciation of the extent to which the Provisional IRA is involved in cigarette smuggling. It is also involved in extensive tax evasion on fuel where petrol and diesel are distributed on which no duty has been paid using bunkers on both sides of the Border for the purpose. I know that is not strictly speaking a breach of the ceasefire. My source is a non-confidential report on terrorism and trends in Europe - document 14280/1/02 - which states in paragraph 312 that the Provisional IRA ceasefire, declared in 1997, continues to hold.
I realise that but we are getting slightly away from the point.
I hope the Minister will put them wise about the activities of the Provisional IRA because it is a subject about which no one is prepared to talk. The existence of such an organisation, associated with a political party in this House, represents a continuing threat to our democracy. I hope the Minister, who has a deserved reputation for courage, will demonstrate that in answering forthrightly and frankly the questions put regarding the doublespeak that seems to exists regarding questions as to whether the ceasefire is in fact a true ceasefire.
I understand Deputy Bruton's point but the thrust of the IRA's activity has moved away from war as against the British elements in Northern Ireland towards what is now largely described as criminal activities such as smuggling and drugs, breaking legs and so on. There is no doubt this has happened in my constituency as well as Deputy O'Connor's constituency in Tallaght.
I am more concerned that the Provisional IRA has not engaged with the Police Service of Northern Ireland. It has not taken on board that part of the arrangements made in the Good Friday Agreement and, in the absence of its involvement, this criminal activity will continue. Pressure should be brought to bear and the matter articulated at European level.
The anomaly relating to extradition to the United States is that the more serious the crime, the less likely the extradition is to take place. If the crime in question is one that carries the death penalty and no assurances are given, extradition is unlikely to take place.
To clarify that point, the Americans have to make a choice between giving us an assurance and getting an extradition.
That is precisely my point - If they do not give an assurance, there is no extradition.
Yes, but that is their choice.
It is a curious anomaly that, for a heinous crime which carries the death penalty and without an assurance from the other side, there is no extradition.
I agree with much of item 10 in relation to the treatment of drug abusers in prison but there is no reference to a recent regulation which has been introduced into our own prisons and which our former President Mary Robinson had a go at last week. It concerns the requirement by the authorities to limit the number of visitors to prisons, specifically in relation to drug smuggling and this is the case even for prisoners who have not been convicted of drug offences. Visitors must now provide photographicidentification - a passport or driving licence. The families of people in prison are unlikely to have this type of identification - they are unlikely either to be drivers in the heart of Dublin or Limerick, nor are they likely to go on many foreign holidays. Whereas the thrust of this draft Framework Document is towards the rehabilitation and treatment, the question of visitors is not mentioned in any part of the document.
Deputy Bruton asked about the drug framework decision. I do not want to trespass on what we will discuss on 14 January but the implication of his question is that the capacity of the Dutch to insist they will not criminalise their coffee house activities is an impediment to the proper implementation of the Tempore declaration and a Europe-wide drive against drugs. The implication, which he will doubtless articulate on 14 January, is that if there was qualified majority voting, the Dutch would not be in a position to maintain this isolated position and the rest of us would force them to follow suit. That is one of the implications of unanimity but that requirement - rightly or wrongly - allows a member state to refuse to take a particular step. In that context, the choice the Commission and the other states are faced with - and it is similar to the one Deputy Costello mentioned - is to get a unanimous agreement to and deal with the Dutch problem by some exception or opt-out clause. This was the case in relation to Ireland's position on the European arrest warrant when we said we had a problem sending people for investigation only. We made our declaration.
To some extent, the issue is a graphic illustration of when a country, for its own purposes, decides it does not want to be part of a common definition of a crime for Europe because of the serious internal political problems associated with it. This is an issue to which we will return on 14 January so I do not want to say more about it now. However, we must think about it carefully because, if the flip-side of that coin is that one state can never hold out against the rest - no matter what they try to impose on them - we will have a problem too.
Deputy Bruton asked about the European Convention on Human Rights in the context of xenophobia. He suggests the ECHR is the answer because of the common guaranteed minimum right of free speech across all the adherents to the convention and, if everyone agrees to it, there should be no problem in finding a common definition of an offence which is compatible with it. However, it is not like that because the ECHR is not, and never attempted to be, a constitution for an ordinary functioning nation state. The ECHR is a minimum rather than maximum set of protections. For instance, states that have holocaust denial as a criminal offence would say that - within the margin of appreciation the Strasbourg Court affords to convention members - having that offence is necessary, proportionate in the context of their history and culture for the purpose of preventing racism. However, the European convention does not produce similar results everywhere. Many people have been beguiled into a false adulation of the ECHR as somehow superior to the constitutions of member states when it is not.
Many things we find unacceptable by way of criminal procedure such as lengthy pre-trial detentions are entirely compatible with the ECHR and are practised by the great majority of adherents to it. One cannot argue that everything compatible with the European Convention on Human Rights is fine and, consequently, Ireland should be willing to accept anything compatible with the ECHR. This is not how things work. It is a false logic trotted out on occasion that because we are all signatories to the ECHR we should have no difficulty with any proposal that is compatible with it. While the ECHR is a floor in terms of human rights protection and the protection of civil liberties, it is by no means a ceiling. It is not an instrument which purports to be a nation state's constitution. It means different things in different places, depending on what is known as the margin of appreciation, which is the flexibility accorded to member states in how they comply with it.
This brings me to Deputy John Bruton's question concerning the incorporation of the charter as part of the treaties. I agree with comments made by Prime Minister Blair recently in Cardiff in which he stated that while there must be a constitution for Europe - there will be one if the members states can agree - the charter should not be incorporated in it in a way that overrides the capacity of national legislatures to legislate. I agree with those sentiments.
The horizontal provisions of the existing charter, which outline what it means, state that all measures therein which correspond to articles of the European Convention of Human Rights have and are intended to have the same meaning as the convention. One is then left with the question of whether Ireland should effectively substitute the European Convention of Human Rights for its own constitutional provisions and be content to live with anything compatible with the ECHR. Many things which we would take for granted as cornerstones of our system may be compatible with the European Convention of Human Rights but they are not guaranteed by it. If, therefore, on a question of qualified majority voting we were then told to amend our law of criminal procedure in a way which we were unwilling to do, it would be of little help to argue that our current procedure is compatible with the ECHR, which, for instance, does not guarantee jury trial, habeas corpus and many other things which we take as absolute givens in our approach to criminal law and criminal procedure.
We do not have jury trials in the Special Criminal Court.
That is precisely the point and it is not a fanciful one. For instance, the corpus juris, a proposal being worked on for a common federal law for crimes against the financial interests of the European Union, proposed to scrap jury trial in member states and establish three judge courts which would decide these kinds of cases across the Union. The question of whether such proposals would be introduced against our wishes then arises. These are all matters to be addressed on 14 January and there is no doubt we will return to them.
The other important issue raised by Deputy John Bruton is the question of the Provisional IRA ceasefire. The two chiefs of police on this island and the two Governments adhere to the position that the ceasefire, whatever it means, is intact as far as the Provisional IRA is concerned. According to Deputy Bruton there is a question of whether the savage beatings in which people have their limbs smashed with iron bars under threat of death, the organisation of armed robberies, threats to people which exclude them from their homes and smuggling, cigarette and cross-Border fuel rackets are compatible with the ceasefire. While there is nothing in the ceasefire which deals with racketeering and drug related activity, this amounts to a corpus of activity which is mob and gang law.
The Mitchell principles are very helpful in this respect. If we were to use them as the definition of what constituted a ceasefire, it is absolutely clear the Provisional IRA are not on ceasefire because they include not just violence, but the threat of the use of violence.
If the Mitchell principles were coterminous with the ceasefire, the deduction the Deputy draws would be correct. However, we must bear in mind that the two Governments are hoping to move to a transformation of the political and paramilitary situation in Northern Ireland between now and the date set for the Assembly elections. Although I am tempted not merely to agree with the Deputy but to go further, I do not want to go down that road because the Government must keep its eye on the prize, namely, the possibility of reaching a position by March or April next year in which all forms and outworkings of paramilitarism are gone.
I agree with the excellent point made by Deputy Costello that participation in policing carries with it the logic that all forms of unlawful violence are not only ignored, but prevented by those participating in the supervision of policing. We are, I hope, moving rapidly towards a position where everybody comes around a table and agrees that the Good Friday Agreement is implemented not in a minimalist or bare way, but consummated in its spirit and that everybody around the table realises that the threat of violence or unlawful activity as a back-up to violence is finished. The time is rapidly coming when all the forces of law and order north and south of the Border, including, I hope, a northern equivalent of the Criminal Assets Bureau, will be able to focus completely on the suppression of criminality in every shape or form.
Deputy Costello asked about the new regime in respect of prisons. I noted what former President Robinson said at a recent conference in Dublin and also that it was thought by some that this new measure is illiberal. The truth is slightly more complex than might have been appreciated by some of the commentators. Ordinary prisoners, who are doing no harm to anybody, receive unsolicited visits from people whom they are afraid not to receive and put under pressure to assist in smuggling into prisons drugs for people who would be under much closer supervision during visits. They have not initiated such visits and do not want them to take place. A regime was established for the protection of ordinary prisoners by which everyone who seeks to visit a prisoner must be properly identified. It limits the circumstances in which such persons can be put under pressure to act as drug mules into our jails.
There is a very simple alternative, one for which, on occasion, there may be an argument, that is, to make it impossible for anyone to have physical contact with a prisoner, regardless of whether he or she is a perceived danger, by installing glass screens, on the grounds that he or she will be used as a courier under pressure. Governor Lonergan, the director of the prison service, Sean Aylward and I are adamant that we have a moral and, perhaps, a legal duty to use every reasonable and humane means at our disposal to reduce the supply of hard drugs to those in our prisons.
We have a moral and legal duty to use every reasonable and humane means at our disposal to reduce the supply of hard drugs to those in our prisons. Mr. Lonergan, who is not a man with illiberal, unrealistic or inhumane views on this matter, has strongly defended the new regime, despite the criticism it received when it was launched last week. I do not think the new arrangements will diminish the rights of prisoners in any sense as they will protect innocent prisoners who face threats of brutalisation, within the prison system, at the hands of those to whom drugs are to be sent or, outside the prison system upon their release, if they do not help to import drugs into jails. The families of innocent prisoners who do not co-operate are often threatened.
We cannot be naive about these serious issues. If a licence or similar document is not produced, I do not believe that somebody as humane as Governor Lonergan would deprive a genuine prisoner of a genuine visit from a relative or close friend. If someone comes looking for a prisoner on an unsolicited basis, there has to be a system to protect inmates.
I do not want to drag out the discussion on this matter, but I wish to make two more points. Shanganagh Castle, the only drug-free prison in the country, is about to be closed down. It has a fabulous record and there has never been a fatality or serious injury there. The regime at the prison was beneficial to the prisoner.
I agree with the thrust of Governor Lonergan's attempts to change the Prisons Service. As one cannot allow people to come to prisons to peddle drugs, one cannot allow visits by people who are not the real friends or relatives of prisoners. On the other hand, those living in places like Sheriff Street and Seán McDermott Street do not normally have photographic identification. If one tries to vote in a polling station, one will be asked to produce identification such as a passport, a driving licence, a bus pass or a utility bill. Many people are turned away in such circumstances and I wonder if greater flexibility should be shown. I appreciate that the objective is desirable, but the means of accomplishing it may not be effective.
This is an important topic, but we have lost our focus.
The other Council members will not be asking——
It is an important matter for Deputy Costello.
Item No. 10 is non-contentious.
I share Deputy Costello's worries about the matter he raised. It may well be onerous for some people to produce photographic identification, but if a total stranger arrives at a prison and claims to be the brother of a prisoner, how is a prison officer supposed to be sure he is telling the truth? We have to bring some reality to both sides of this matter because merely saying one's name does not represent prima facie evidence of one’s identity, particularly if a serious campaign of smuggling drugs into prisons is ongoing. I will convey Deputy Costello’s views to the director of the Prisons Service and I will examine whether a degree of flexibility in bona fide cases where there is no doubt can be introduced. Most people have to carry some form of identification in this day and age, as they are required to do so for many activities, such as getting on an €8 Ryanair flight.
There have been ructions about that also.
I do not think the people to whom Deputy Costello refers use high-cost airlines to get to London if they can pay €8 with another airline.
I thank the Minister for discussing these important European matters and the other issues that have been raised. I also thank his officials, to whom we are grateful.
The joint committee adjourned at 6.55 p.m. sine die.