Seanad Éireann debate -
Wednesday, 12 Dec 1973

Vol. 76 No. 4

Air Navigation and Transport Bill, 1973: Second Stage.

Question proposed: "That the Bill be now read a Second Time".

Minister for Transport and Power (Mr. P. Barry)

The purpose of the Bill is to enable effect to be given in Irish domestic law to the Convention on Offences and Certain Other Acts Committed on Board Aircraft, drawn up at Tokyo in September, 1963, and the Convention for the Suppression of Unlawful Seizure of Aircraft drawn up at The Hague in December, 1970. Some of the provisions in the Conventions can be applied administratively while others require legislation. The enactment of this Bill will clear the way for this country to formally adhere to the Conventions.

The Tokyo Convention came into force internationally on 4th December, 1969, after the twelfth ratification was made and The Hague Convention came into force on 14th October, 1971, after the tenth ratification was made. The Tokyo Convention is now in operation between 67 states and The Hague Convention between 57 states.

The principal states with which we have regular air services, the US, the UK, France, Germany, Belgium, Italy, Spain and the Netherlands, have already ratified either or both of the Conventions. The Tokyo Convention was intended to establish international co-operation with a view to ensuring that persons who committed crimes on board aircraft in flight would not escape apprehension merely for lack of jurisdiction. It made it clear that the state of registration of an aircraft had the authority to apply its laws to events occurring on board its aircraft while in flight in any place whatsoever. It provided the aircraft commander with the necessary authority to deal with offenders. It delineated the duties and responsibilities of the contracting state in which the aircraft landed, including its authority over and responsibility to any offender. It also dealt with hijacking of aircraft but in this regard it confined itself to requiring a contracting state to restore control of the aircraft to the lawful commander and to permit passengers and crew arriving in its territory to continue their journey. It did not provide for the establishment of hijacking as an international offence and it did not call specifically for punishment of hijackers.

The Hague Convention of 1970 expands and strengthens the Tokyo Convention provisions in regard to hijacking by providing at international level for the definition of the offence of hijacking, the establishment of jurisdiction over it and its punishment by heavy penalties or extradition of the offender, where appropriate. The Convention makes hijacking an international offence in that, with some exceptions, it requires states to establish jurisdiction over the offence irrespective of where it is committed, the nationality of the offender or the state of registration of the aircraft.

The purposes of the Bill can be grouped under three main headings. Firstly, it clarifies the legal position in regard to crimes of a general nature committed on board Irish aircraft. Secondly, it empowers the commander of Irish aircraft and of aircraft of any other state party to the Tokyo Convention to restrain, disembark or deliver up to the competent authorities in the state where the aircraft lands, any persons on board who have committed, or are about to commit any general offence on board or who jeopardise the safety of the aircraft or persons on board. Thirdly, it establishes hijacking as an international offence irrespective of the nationality of the aircraft, the nationality of the offender or the place where the offence is committed. These are the main features of the Bill and I will explain each of them in detail.

In regard to the application of Irish law to Irish aircraft in flight outside the State the present position is that, except for certain internationally recognised offences such as murder, an offence committed on an Irish aircraft while outside the State is not amenable to the Irish courts in the same way as an offence on an Irish registered ship. This represents a serious gap in jurisdiction particularly in regard to offences committed when the aircraft is flying over international waters not within the jurisdiction of any other estate. In such cases there is a danger that an alleged offender may escape apprehension merely for want of jurisdiction. The Tokyo Convention accords international recognition to the exercise of extra-territorial jurisdiction under the circumstances contemplated in the Convention. The Bill reflects this by providing that any act or omission which would constitute an offence if committed within the State shall equally constitute an offence if committed on an Irish aircraft in flight outside the State.

As a logical extension of the provisions about jurisdiction, the Bill furnishes the aircraft commander with powers to deal with persons who commit offences on board or who by their actions jeopardise the safety of the flight. In such cases the commander of an Irish aircraft, or of an aircraft of any other state party to the Tokyo Convention, is empowered to take such measures as he reasonably considers to be necessary to protect the safety of the aircraft or its passengers or to maintain good order or discipline on board the aircraft. These measures may include putting the person involved under restraint, disembarking or delivering him to the competent authorities of the state of landing. Provision is made to safeguard the rights of individuals and to ensure that they are not kept under restraint any longer than is necessary. The Bill specifies limits beyond which restraint shall not be exercised and imposes on the commander the obligation of reporting to the appropriate authorities on any persons under restraint, disembarked or delivered. It lays down penalties for failure by the commander to observe this.

The establishment of hijacking as an international offence is covered by section 11 of the Bill. The effect of this section is that any person who interferes with the control of an aircraft by force, threat or intimidation will be guilty of an offence under Irish law irrespective of the offender's own nationality, the state of registration of the aircraft or the place where the offence is committed. Attempted hijacking and other acts of violence connected with hijacking are similarly covered. The offender will thus be amenable to Irish courts and subject to prosecution or extradition, as appropriate. In this way hijacking, including attempted hijacking or other acts of violence connected with hijacking, is established as an international offence. These provisions, taken in conjunction with the corresponding provisions in the legislation of other contracting states, are designed to ensure as far as possible that a hijacker will find no place of refuge.

The Hague Convention applies only if the place of take-off or the place of actual landing of the aircraft involved is outside the State of registration. The effect of this is that a hijacking of an aircraft on a domestic flight within its own country is not covered by the Convention.

A further limitation on the scope of the Convention is that it does not apply to aircraft used in the military, customs or police services. In the interests of affording the greatest possible protection to all forms of aviation, the Bill goes beyond the Hague provisions by extending the offence of hijacking to all cases of unlawful seizure of an aircraft, including a state aircraft, where:—

(a) the act is committed by a citizen of Ireland or a person habitually resident in the State;

(b) the act is committed in or over the State, or

(c) the aircraft is an Irish controlled aircraft.

For example, a hijacking of an Aer Lingus aircraft flying between Dublin and Cork will be covered by the Bill although it is outside the scope of the Convention. This will make for consistency in the application of Irish law and provide more effective and all-embracing legislative provisions to deal with hijacking.

The Convention requires that the offence of hijacking shall be punishable by severe penalties. The Bill reflects this requirement and the enormous gravity of the offence by providing that an offender, on conviction on indictment, shall be liable for a term of imprisonment up to life imprisonment. It also provides that if a state does not extradite an alleged hijacker it shall without exception whatsoever submit the case for the purpose of prosecution. Contracting states are accordingly afforded the choice between extradition and prosecution and no substantive change in our existing extradition law is called for.

Section 15 of the Extradition Act, 1965, provides that extradition shall not be granted where the offence in question is regarded as having been committed in the State. In the case of offences committed within the territorial area of the State, therefore, we would discharge our obligation under the Convention by way of prosecution. However, section 11 of the Bill by creating hijacking an international offence automatically brings it within the jurisdiction, no matter where it is committed, and section 2 says that offences may for all incidental purposes be treated as having been committed in the State. Some might seek to establish that as a consequence hijacking is not an extraditable offence in any circumstances. To safeguard against this it is necessary to provide that section 15 of the Extradition Act shall not apply in such cases.

Section 11 of the Extradition Act provides that extradition shall not be granted for an offence which is a political offence or an offence connected with a political offence and a hijacker may escape extradition if the offence is in that category. It will be a matter for the courts to determine whether or not the offence is a political offence.

Before concluding I should perhaps say a few general words on why we are taking the Tokyo and Hague Conventions together in this Bill. The previous Government had a Bill prepared in 1970 to enable effect to be given to the Tokyo Convention which came into force in 1969.

Unfortunately, however, as history has shown, that Convention did little to halt the spate of hijacking and it became clear that it would be necessary to expand and strengthen the Toyko Convention provisions on hijacking. The Hague Convention of 1970 did this by declaring hijacking an international offence. Since then other forms of interference with aviation, not covered by either the Tokyo or Hague Conventions, have been devised and it became necessary to draw up a third Convention at Montreal in September, 1971 to cover these unlawful acts—they relate mainly to armed attacks, sabotage and similar acts of violence, other than hijacking, against aviation and its installations and facilities. It is proposed to ratify the Montreal Convention as quickly as possible but I have decided that the introduction of the Bill to enable effect to be given to the Tokyo and Hague Conventions should not be deferred any longer. Consequently I am having a separate Bill prepared to give effect to the Montreal Convention and I would hope to introduce it in the near future.

It is clear that legislation alone is no panacea for the crime of interference with aviation. Hijacking of aircraft and other attacks against the safety of aircraft continue. The threat is as great as ever. Our efforts as an individual member of the international community to improve the situation involve action on two levels: on the one hand we have developed practical preventive security measures at our airports and on our air services and on the other we are assisting through this Bill in the creation of a new structure of international law designed to outlaw the hijacker. However, until all countries are committed to ridding aviation of the scourge of interference, hijackers will not be entirely discouraged. Committed states may therefore be forced to think in terms of multilateral measures against defaulting states. A recent international conference on air law held in Rome considered proposals to this end but failed to reach agreement. These efforts are continuing and I will not hesitate to bring in any further legislation necessary to give effect to any further instrument in this field.

The present Bill is not a contentious one. We are seeking to give the force of law to the provisions of two international instruments designed to promote the safety of aviation and which have been signed or adhered to by all the major countries of the world. The airline industry and the airline pilots associations have called for adherence to the Conventions.

I commend the Bill to you in the assurance that all Senators will support it and in so doing make Ireland's contribution to a peaceful and safe development of civil aviation throughout the world.

Mr. E. Ryan

I have very much pleasure in supporting this Bill. It is a very necessary Bill to deal with a hazard which appears to be becoming increasingly frequent. Each hijacking that takes place seems to lead very shortly afterwards to another one. Much of the reason for these hijacking efforts seems to be not only to achieve a particular purpose but also to achieve a certain amount of publicity. It can be said that the majority of hijacking efforts are not successful in achieving the primary purpose which those who hijacked the plane said was their purpose. But they certainly are successful in getting a great deal of publicity whatever their purpose is alleged to be.

The Bill, even though very carefully drafted and based on a Convention which in turn is a very good one, will not, I am afraid, be entirely successful. In saying that I am not suggesting that either the Convention or the Bill are in any way inadequate or inefficient. By the very nature of the offence which we are dealing with, it will be very difficult indeed to eliminate it. Consequently, whereas one can welcome this Bill and hope that it will be to some extent successful, one must be rather pessimistic about the effect it will have.

One of the features about it which I have already mentioned is the extent to which publicity plays a part. Although it would be impossible to legislate in such a way as to prevent publicity, every effort should be made so far as this can be done, to give as little publicity both to the object of the hijack and the extent of the particular incident. I know this is very hard to achieve because these hijackings are very often rather spectacular. They are rather dramatic and consequently the media find it very difficult indeed not to use the incidents and give them the headlines. It would require a great deal of self-discipline on their part to play down these incidents and give them as little publicity as possible. If that were done it would contribute very largely to the solution or diminution of this problem. However, it is not something that can be effectively dealt with by way of legislation.

It is very important in this Bill that the question of extradition has been provided for. In a very large number of cases, these hijackings are carried out by people who have some particular cause, usually political, who either wish to achieve an objective, or at least wish to achieve publicity for what they are doing. Consequently, any proceedings that take place are more than likely to end up dealing with the question of whether or not it is a political offence done with a political motive. It is therefore essential that this question of extradition should be provided for in so far as it is possible to provide for it.

It is a Bill which we must all welcome. I regret that I cannot be more optimistic about how effective it will be. Certainly, in so far as the Minister is concerned and those who drafted the Bill, it is a step in the right direction. I cannot suggest any improvement and, in spite of my pessimism, I hope it will play some part in eradicating this very serious hazard which all people who fly have to undergo at present.

Mr. Alexis FitzGerald

I shall not detain the House very long. I should like to raise one question. In his introductory speech, the Minister referred to the necessity of providing that section 15 of the Extradition Act should not apply. The Minister also referred to the maintenance of the provision in section 11 of the Extradition Act. I should like to put myself on record with regard to this matter.

Until international law is changed to deny the right of asylum, there will not be effective deterrents against hijacking of aircraft. I should like to think that the Government, the Minister and his advisers are facing up to the very serious implications of that. The view I take of the matter is that it is an assault of the first order on civilisation, an assault equivalent to piracy. The pirate has been dealt with effectively by being capable of being prosecuted anywhere by anyone in any place. There should be no reservation of right. I know the full, serious consequences of that, but we are reserving a right to claim political asylum under our law in relation to hijacking.

The Minister has told us that there is another Bill in preparation and we ought to be thinking very seriously of our setting a headline in this matter. I know there are all sorts of treaties in existence where this right of asylum, even in relation to this offence, is recognised. In many matters in the past we have taken a progressive lead and we must do it in relation to this matter, too.

Dr. West

I welcome this Bill. I have some figures which indicate that since 1950 there have been more than 300 hijackings resulting in over 400 deaths and many millions of dollars' damage to equipment and, of course, injuries to personnel. This encouraged the International Civil Aviation Organisation to organise three Conventions in Tokyo, The Hague and Montreal, in order to attempt to reach international agreement on dealing with these offences.

My only criticism of our action is that it is a pity we did not ratify the Tokyo Convention, 1963, earlier. As a small state, with an international airline, we have nothing to lose and everything to gain by ratifying such an agreement. It is a pity we did not ratify the Tokyo Agreement earlier. As with such international agreements, their effectiveness and our interest in them depend on their being ratified by as many other states as possible. They have no effectiveness if the ratification is not wide and across the board. According to the report which I have, the number of states that have ratified these Conventions is still very low. Major powers have ratified them, but there are many smaller states who have not done so and their effectiveness is very much lessened.

The fact that these agreements have been backed up by the airlines and by the pilots' associations and have got their full support indicates that they are the ones which we should be supporting. I should not be surprised to see strong measures being taken against states who have not ratified these Conventions in whose territory or in whose aeroplanes hijackings take place. These might involve a boycott or cancellation of air services. They could involve more serious action, such as the cutting off of economic aid, or other sanctions. This would clearly involve Government decisions. I can well foresee airlines and pilots' associations boycotting traffic to countries who do not ratify these Conventions and in whose territory offences are committed.

This would appear to be the first and effective way of getting countries to ratify these agreements. We have nothing to lose by ratifying them at an early stage. The extradition problem may have held up ratification here, but I am glad that the Minister has clearly outlined his determination to ratify the Montreal Convention in another Bill as soon as possible. I would encourage him to do this, because, as Senator Alexis FitzGerald has said, we are a country who have given a lead in these matters. I should like this country to be in the forefront of nations ratifying such international conventions which are essential if international air traffic is to continue to be safe and not collapse altogether. A spate of hijacking could have a very serious effect on the total air traffic and our whole communications system would be disrupted.

I have no hesitation in welcoming this Bill and in encouraging the Minister in his efforts to ratify the Montreal Convention.

Mr. Halligan

I rise to support the point put by Senator Alexis FitzGerald. When I read the Bill I noticed that it did not cover the escape clause of the use of political offence as a mechanism for preventing extraditions. The Minister in his Bill has covered one defect in the law by providing that lack of jurisdiction shall no longer apply. It may be that international hijackers will not drive a coach and four through a Bill like this, but they may fly jumbo jets through it.

We accept that hijackings fall into two categories; those which are for straightforward criminal purposes, such as ransom, and those which are political. Without having the statistics to hand, I believe a high proportion of hijackings have been of a political nature. We know of the use to which this particular weapon of terrorism has been put by those involved in the Arab cause. We know too of the number of sanctuaries which they find— admittedly growing less in number but still sufficiently large for them to escape punishment. Like Senator West, I wonder what action can be taken against a state which refuses to proceed with prosecution, or what sort of action can be taken against those who would plead as a defence against extradition proceedings that their offence was of a political nature.

I would add my voice to the plea of Senator Alexis FitzGerald that our Government would undertake, as a matter of urgency, an examination of this problem, admitting all of the very important implications which would arise in the whole field of international law. The question of hijacking must be treated the same as that of piracy, which is precisely what it is.

Mr. Horgan

I should like to welcome the Bill and to ask one question on it. I note in the Minister's opening speech that the Bill empowers the commander of an Irish aircraft:

to take such measures as he reasonably considers to be necessary to protect the safety of the aircraft or its passengers or to maintain good order or discipline on board the aircraft.

Is there any possibility of liability attaching to the commander of an aircraft in this sort of situation in which it might be proved that any steps he took could not be regarded as reasonable and from which an innocent third party such as other passengers sustained injury? Would this problem be covered by the normal conventions governing the payment of damages to passengers who were involved in aircraft accidents as such or would this situation give rise to a separate cause for action against the commander or the owners of the aircraft involved?

Mr. Russell

A few brief points. I should like to agree with the other Senators in saying that this Bill is very welcome in the House. It is only proper that this country which has been associated with international air navigation for more than 50 years— since Messrs Alcock and Brown landed in Galway in 1919—should have a particular interest in a Bill of this nature.

One point with which I am concerned and it was mentioned also by Senator E. Ryan, whose pessimism I share, is that this Bill gives authority to the aircraft commander while in flight to deal with offenders. It does not say how he will do this. Unfortunately, so far it has been almost impossible to deal with hijackers in the air. It is a much simpler matter on the high seas. In the air the commander cannot effectively deal with hijackers armed with submachine guns and other such weapons. I wonder if there have been any discussions in either the Tokyo or Hague Conventions to provide the commander either with the necessary armaments to deal with hijackers or is there any method by which security guards could be provided to ensure that the aims of these Conventions can be put into practice? They dealt with the situation from the legal point of view, but in practice it is impossible for a commander to do anything if he is held up by hijackers. Perhaps the Minister might have some comments to make on this point.

Minister for Transport and Power (Mr. P. Barry)

As I expected, the Bill has been well received by the Seanad. As Senator West has pointed out, we have all been concerned for many years at the extent of hijacking throughout the world. Conventions have been drawn up to try and curb this practice but it is now seen that they are defective. This is the reason why the last Government had arrangements made to bring in legislation to deal with the Hague Convention. Events however had overtaken them and I am bringing in the Bill, although it does not go far enough. I will bring in legislation to deal with the Montreal Convention as soon as possible.

Referring to the point made by Senator West, these matters were the subject of discussions at the Rome meeting in August. Many methods of dealing with this were suggested, such as pilots' organisations refusing to land in countries where these Conventions had not been signed or airlines refusing to fly into those countries. These matters were all discussed but there was a failure to reach agreement. At the next meeting the situation will again be reviewed in an effort to find a solution. This is the weakness of these Conventions: that only a limited number of countries sign them with the result that there is asylum for hijackers in other countries. We must be one of the number of countries who are determined in their efforts and by legislation to try to stamp out this appalling offence.

Senator E. Ryan is correct in saying that many of the hijackings are for the purpose of gaining publicity for the cause of the hijackers rather than for the actual acquisition of a jumbo jet, which would be of very little use in a man's back garden.

It is better to cure the offence of hijacking rather than to curb the Press in their reporting of these incidents. Even if at the next meeting in Rome a new convention is drawn up I am sure it will contain some loopholes and further legislation will be needed. If publicity were removed from incidents of hijackings it would be desirable. But it is not the function of any country to tell the Press what they should or should not publish. It is our function to bring in legislation which will prevent the occurrence of offences of this nature, thereby removing publicity by removing the crime.

Senator Horgan made the point about the liability of the commander of the aircraft. Section 10 provides the commander with indemnity in such cases. If passengers were injured during a hijacking they would have recourse in civil law against the air company; but the purpose of this Bill is to protect the commander and give him the necessary powers to apprehend and hand over the hijackers to the competent authorities.

Senator Halligan and Senator Alexis FitzGerald raised the question of extradition. The changing of our laws in regard to extradition is a much wider area than could be gone into here under the terms of the Air Navigation Bill. The Bill, however, provides a choice, when the aircraft has landed in a country. Supposing a South American hijacked an American aircraft and flew it to Australia and 12 months later was found in Ireland. He could be prosecuted here under our law and imprisoned here. This is how international jurisdiction affects the Bill. In this way we have a choice of extraditing or prosecuting here. We could prosecute him here and he could be punished here for the crime of hijacking an aircraft which is not ours and which did not land in our country. For that reason, in most cases we would probably choose to do that rather than extradite. The object would be to see that a hijacker would not escape punishment.

Senator Russell raised the point about the means by which an airline commander would apprehend a hijacker. This is really dealing with the hijacker and his punishment. But the airline would take action to see that the airline commander would be competent and in a position to apprehend somebody whom he found on board who had the intention of hijacking.

As I said in my opening address, this Bill does not go far enough. Rather than delay and have a Bill drawn up to give effect to the next Convention I would prefer to go part of the road and deal with these Conventions as quickly as possible. Then, if there is a further Convention later on, to deal with that again. Senator West referred to the necessity of having some way of dealing with hijackers in countries which do not sign Conventions. Until that is realised and until we can employ some form of moral pressure to ensure that every country in the world signs them, there will be a refuge for hijackers, and it is up to us to see that that refuge is not here.

I should like to thank the Seanad for the reception they have given, to this Bill. I expected it and I hope that I will be back here fairly soon with further legislation to deal with this appalling crime.

Question put and agreed to.

Agreed to take remaining Stages today.