The Bill gives effect to the European Convention on the Suppression of Terrorism which the Minister for Justice signed on behalf of the Government in February last. That convention has as its purpose the suppression of terrorism by the strengthening of extradition and mutual assistance arrangements between the member states of the Council of Europe. All member states of the Council of Europe have now signed the convention and it remains to be ratified only by France, Greece, Malta and this country.
The convention is not an extradition treaty. Its purpose is to strengthen existing extradition and mutual assistance arrangements between member states of the Council of Europe by limiting the scope of the political offence exception. Listening to the debate in the Dáil, one would be forgiven for thinking that this Bill was making provision for the first time for extradition to Northen Ireland, Britain and continental Europe. That, of course, is not the case. Part II of the Extradition Act, 1965, which gives effect to the 1957 European Convention on Extradition, provides the basis for our extradition arrangements with countries which are parties to that convention — that is, most of the member states of the Council of Europe.
Those arrangements have been in place since 1965. Part III of the 1965 Act provides for a different, more simplified, procedure which we operate with Northern Ireland and Britain based on the backing of warrants. Those arrangements have also been in place and have been operated since 1965. Indeed, the 1965 Act in this regard replaces, with modifications, arrangements which we have had with Britain since the foundation of the State.
Many of the views which have been expressed in the debate in the Dáil relate primarily to our law on extradition rather than to the present Bill. If valid, they would imply that the Extradition Act, 1965, was itself in important respects misconceived. I do not believe that is the case and I propose to return later to the most important issues which have been raised.
In keeping with the convention, the primary purpose of the Bill is to limit the meaning of "political offence" for the purposes of those provisions of our law governing extradition and the taking of evidence for use in criminal proceedings abroad. The Extradition Act, 1965, provides that extradition shall not be granted for an offence which is a political offence or an offence connected with a political offence. Such an exception is a common feature of extradition treaties and extradition legislation. A similar provision is to be found in the 1957 European Convention on Extradition, for example.
While the political offence exception has been a feature of extradition treaties snce the 19th century, there is no generally accepted definition of political offence. The term "political offence" has traditionally been left undefined both in extradition treaties and in domestic legislation. There is general acceptance, however, that it is a matter for the requested State to decide for itself what that expression means. There is also a wide acceptance among jurists and other experts that it is not practicable to find a formula that would constitute anything approaching a comprehensive definition of the term.
Because of the difficulty in finding an adequate and generally acceptable definition, the approach taken in the terrorism convention is to exclude certain offences from the scope of the political offence exception. That has already been done in other conventions — the 1957 Convention on Extradition excludes from its scope the taking of the life of a Head of State or a member of his family; similarly, the United Nations Convention on Genocide excludes the offence of genocide from the exception. We have followed the lead given by those conventions in the 1965 Act itself and in the Genocide Act, 1973.
The key provision of the Convention on the Supervision of Terrorism in this regard is Article 1 which is given effect to by section 3 of the Bill. Under Article 1, contracting States undertake not to regard certain specified offences — which are particularly associated with modern forms of terrorism — as being political for the purposes of requests for extradition from other contracting States. The offences in question include hijacking, attacks against diplomats, explosives offences and so on. While Article 1 is mandatory in its terms, Article 13 permits a reservation to be entered in respect of it.
The effect of such a reservation would be to preserve, subject to qualification, a State's right to refuse extradition for an offence which the requested contracting State considers to be political. The qualification is that the requested State is obliged, when evaluating the character of the offence, to take into due consideration any particular serious aspects of the offence, including the fact that it created a collective danger to the life, physical integrity or liberty of persons, that it affected persons foreign to the motives behind it, or that cruel or vicious means were used in its commission.
Reservations in accordance with this Article of the convention have been entered by nine of the 17 countries which have ratified the convention. In addition, France, which has yet to ratify the Convention, has indicated its intention of making such a reservation and I understand that Greece which has also yet to ratify the convention will do so as well.
The effect of those reservations is that the State concerned reserves the right to refuse extradition for an offence which it considers to be political having taken into due consideration the matters specified in Article 13 which I have already mentioned. The Government, however, have decided to frame the Bill on the basis that a reservation would not be entered. In arriving at that decision, the Government were of the view that the offences covered by Article 1 were so odious, and so wanton and indiscriminate in their nature, that they should not be capable of being regarded as political in any circumstances. The decision not to enter a reservation also reflects the Government's commitment to the promotion of co-operation to defeat the use of violence for political purposes, above all on our own island, and, in the area of extradition, to play its part fully in the international effort to defeat terrorism.
Section 3 of the Bill, therefore, provides that an offence of the kind covered by the section is not to be regarded as a political offence or an offence connected with a political offence for the purposes of a request for extradition from a country which is a party to the Convention. The offences which section 3 excludes from the scope of the "political offence" exception are set out in subsection (3) of that section. They are offences within the scope of the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft or the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation; serious offences involving an attack against the life, physical integrity or liberty of an internationally protected person; offences involving kidnapping, the taking of a hostage or serious false imprisonment; and offences involving the use of an explosive or an automatic firearm, if such use endangers persons. Attempts to commit those offences and participation as an accomplice are also covered.
In providing for these offences the Bill follows closely the language used in the Convention although, where it has been considered desirable in the interests of clarity, or necessary for greater precision, some terminology used in Irish law has been substituted for that used in the Convention and, in other cases, expressions of a general nature that are used in the Convention are defined. In this connection I would invite the attention of Senators to subsections (4) and (5) of section 3 together with the definition of "serious offence" contained in section 1.
In addition to strengthening extradition arrangements between contracting States, the Convention seeks to promote mutual assistance arrangements among contracting States. Section 3 of the Bill, therefore, following Article 8 of the Convention, provides that the offences concerned are not to be regarded as a criminal matter of a political character for the purposes of the provisions of the Extradition Acts, 1870 and 1873, governing the taking of evidence in the State for use in criminal proceedings abroad. Those provisions are the relevant provisions of our law for the purposes of mutual assistance in criminal matters.
Section 4 of the Bill is related to Article 2 of the Convention. That Article differs from Article 1 in that it is optional, not mandatory. It allows, but does not require, contracting States not to regard certain additional offences as political offences for the purposes of extradition. The offences in question are set out in subsection (2) of section 4 and comprise a serious offence, other than one to which Article 1 applies, involving an act of violence against the life, physical integrity or liberty of a person, or involving an act against property if the act created a collective danger for persons. Implicit in the section, of course, is the assumption that one is speaking of offences where the question of political motivation might be advanced by the wanted person.
The Government intend to take the option which the Convention allows in relation to those offences but with a qualification. Section 4, therefore, instead of excluding these offences completely from the ambit of the political offence exception, provides that an Article 2 offence is not to be regarded as political where the court or the Minister, as appropriate, having given due consideration to any particularly serious aspects of the offence concerned, is of opinion that the offence cannot properly be regarded as political. The section provides that, when the character of the offence is being evaluated, due consideration must be given to certain specified aspects of the offence, namely, that it created a collective danger to the life, physical integrity or liberty of persons, or affected persons foreign to the motives behind it, or that cruel or vicious means were used in its commission. The Government have decided to give effect to Article 2 of the Convention in this way because, while they were anxious to give as full effect as possible to the Convention, they are not convinced that the exclusion of the full range of offences coming within the scope of Article 2 would be warranted in all circumstances.
Article 8 of the Convention also creates an obligation to provide assistance in relation to criminal proceedings instituted abroad in respect of an offence coming within the scope of Article 2. Section 4 makes the necessary provision in this regard.
There is one final matter I should mention in regard to section 4. The references to the Minister for Justice in section 4 (1) do not give any new power to the Minister but simply have the effect of restricting the powers vested in him by the 1965 Act.
Under Article 6 of the Convention a contracting State is also required to establish jurisdiction over Article 1 offences in circumstances where a suspected offender is present in its territory and it does not extradite him following a request for extradition from a contracting State whose jurisdiction is based on a rule of jurisdiction existing equally in the law of the requested State. Under Article 7, if a contracting State refuses extradition for an Article 1 offence, it is required to submit the case to its competent authorities for prosecution. In this way the Convention takes account of the possibility that extradition might be refused for a valid legal reason other than that the offence was political. Section 5 provides for the establishment of extra-territorial jurisdiction over the offences in question as necessary.
Certain restrictions are placed by section 6 of the Bill on the taking of proceedings in respect of section 5 offences. These are partly intended to reflect the fact that under the Convention the obligation to establish extra-territorial jurisdiction is confined to cases where a request for extradition has been received and refused.
These four sections thus constitute the core of the Bill and give effect to the Convention. I would like, however, to mention briefly some of the remaining provisions of the Bill. Sections 8 and 9 incorporate into Part III of the 1965 Act a possible ground of refusal of extradition that is allowed for by Article 5 of the Convention on Terrorism and that is already provided for in Part II of the 1965 Act at section 11 (2). Henceforth it will be possible for extradition to be refused under that Part of the Act if there are substantial grounds for believing that the warrant under which the person is sought was issued for the purpose of prosecuting or punishing the person on account of his race, religion, nationality or political opinion or that the person's position would be prejudiced for any of these reasons.
Section 10 of the Bill confers a power to apply the provisions of the Act to non-convention countries with which an extradition agreement is in force. Such an extension, however, will require a prior affirmative resolution of both Houses of the Oireachtas. That reflects the fact that issues which do not arise in relation to Convention countries might arise if the Bill were to be applied to other countries. Section 7 of the Bill, which is the result of an amendment proposed by Deputies O'Malley and Harney and accepted by the Minister for Justice on Report Stage in Dáil Éireann, amends section 4 of the 1965 Act. The effect of section 7 is to require a prior affirmative resolution of both Houses of the Oireachtas in the case of orders proposed to be made by the Government under section 4 of the 1965 Act.
It will be clear from what I have already said in relation to sections 3 and 4 that they do not make exhaustive provision for the delimitation of the political offence exception. Section 11, therefore, provides that nothing in the Bill will prevent a determination being made that an offence is not a political offence in circumstances or by reason of considerations other that those referred to in section 3 and 4.
As I mentioned in my opening remarks, the debate in Dáil Éireann on this Bill was concentrated as much on matters of general application to our extradition law as on provisions of the Bill itself. The issue of whether we should insist on the establishment of aprima facie case in our courts before a person would be liable for extradition is an issue which goes to the provisions of the 1965 Act rather than to this Bill. Similarly the issue of whether we should refuse to extradite our own nationals or whether restrictions should be placed on the extradition of our nationals are issues which go back to the 1965 Act rather than this Bill. This Bill proposes simply to limit the scope of the political offence exception for the purposes of extradition and provides for related matters. In so far as the debate up to now has focused on issues unrelated to the Bill, it would, I think, be appropriate for me to say something about those issues which have been raised.
The suggestion which has attracted the most attention, I believe, is that the Bill should contain a requirement that aprima facie case be established in our courts before a person would be liable for extradition. In some cases the suggestion was that such a requirement would apply only where the person sought was an Irish citizen.
The Dáil decided yesterday that provision of this kind should not be made in the Bill. That, I firmly believe was the right decision. To introduce such a requirement now would be a retrograde step involving a return to a practice which, in relation to countries other than the United Kingdom, we dispensed with in 1965 when we acceded to the 1957 European Convention on Extradition. To require that aprima facie case is to be made out in the requested country would be out of keeping with European extradition norms and it is not provided for in the 1957 Convention. That is why our arrangements under the 1965 Act with the other parties to that Convention do not provide for such a requirement. The establishment of a prima facie case has never been a feature of the backing of warrants arrangements which we have operated with Britain since the establishment of the State. That is why the 1965 Act does not contain such a requirement in relation to Northern Ireland or Britain. I am forced to ask, therefore, whether those people who now insist that the establishment of a prima facie case is a matter of critical importance are also saying that the 1965 Act is so fundamentally flawed and misconceived in this regard.
The 1965 Act was not misconceived. There are good policy reasons for not requiring the production ofprima facie evidence in extradition cases. Such a requirement is a serious obstacle to extradition and is now recognised internationally as such. It is a requirement which until 1965 was shared by all the common law countries. In dispensing with it in 1965, this country took a lead among those countries. Since then, there has been an emerging trend among major common law countries away from the requirement. Within the past few years Australia has removed the requirement in its extradition arrangements with many countries. The British Government have recently published legislation which will enable them to dispense with the requirement in its extradition arrangements. Britain has never, of course, applied the requirement in its arrangements with this country. The British Government has signalled their intention to become a party to the European Convention on Extradition and that legislation is a necessary prior condition of their doing so.
A requirement related to Irish citizenship would be a requirement directed against Northern Ireland and Britain. The backing of warrants arrangements under Part III of the 1965 Act are meant to be a simplified procedure intended to reflect the close ties which exist between this country, Northern Ireland and Britain. The situation which obtains as between this State and Northern Ireland is unique in Europe in terms of the number of persons in one jurisdiction who are citizens of the other. That applies particularly in the context of Northern Ireland but, given the nature of our citizenship laws, its application in the wider British context should not be underestimated either. The backing of warrants arrangements also reflects the geographical proximity of the two countries, the social and economic ties, as well as the special travel arrangements that exist between us, and, of course, the close similarity and historical connection between our legal systems. To introduce a requirement that aprima facie case be established in our courts before extradition could be granted to Northern Ireland or Britain would serve to impede legitimate and proper requests for the return of wanted persons. It would also amount to a public and unambigous declaration both to the people of Northern Ireland and the people of Britain that we were abandoning the Anglo-Irish Agreement and all that it means for all of us.
Having said that, I must accept — and the Government accepts — that the various suggestions which have been made are intended to address some genuinely held concerns about extradition. One concern throughout the debate that has taken place on our accession to the Terrorism Convention has been that the Bill might facilitate a development of extradition merely for questioning in the context of extradition to Northern Ireland and Britain. The Government had addressed this concern before the Bill was published and arrangements were agreed with the British Government whereby no warrant to be sent to this jurisdiction will, in future, be sent here for execution unless the case has first been examined at a high legal level to verify that there is, in the opinion of the prosecution authority concerned, sufficient evidence of a kind admissible in court on which to base a charge. The British Government have stated that in respect of accused persons the only purpose of the backing of warrants procedure is to enable persons to be brought before the courts and that a warrant for the return of a person will be sought only where the Crown Prosecution Service in England and Wales, or the Director of Public Prosecutions in Northern Ireland, is satisfied that there is a clear probability of a prosecution founded on a sufficiency of admissible evidence.
Those arrangements in themselves represent an important safeguard. They reflect the understanding that is shared by the two Governments that an extradition request implies a clear expectation that court proceedings will normally follow. The reason I say "normally" here is because there may be very exceptional occasions when they should not or could not be proceeded with.
The Minister for Justice announced in the Dáil on Tuesday that the British authorities have now also agreed to an addition to this arrangement. In all cases where a warrant has been sent to this jurisdiction for backing, the British Attorney General will send to our Attorney General, through the diplomatic channel, a confirmatory note to the effect that he — the British Attorney General — has satisfied himself that the relevant prosecuting authorities have complied with the arrangements which I have just described. That confirmatory note will serve as additional reassurance that these arrangements have been complied with in each case. Parallel arrangements will be put in place in Scotland under the direction of the Lord Advocate.
The new administrative arrangements, now further strengthened in this way, will, in my view, provide safeguards that ought to be accepted by any reasonable observer as being entirely adequate, and in saying this I would stress that I am not suggesting that abuses have occurred. These new arrangements will come into operation in the very near future — in some areas almost immediately and elsewhere very shortly.
The Government propose that, before the Bill comes into operation, sufficient time should be allowed so that those arrangements can be seen to be working in practice. For that reason, section 13 of the Bill, which deals with its commencement, was amended on Committee Stage in the Dáil to provide that the commencement date referred to in that section would be 1 December 1987 instead of 1 June 1987.
Before concluding, I would like to say a few further words about section 13. That section now provides that the Act shall come into operation on 1 December 1987 unless before that date resolutions to the contrary are passed by both Houses of the Oireachtas. It will also be open to both Houses to pass resolutions that the Act should come into operation on a specified date earlier or later than 1 December 1987. In that event the Minister for Justice will be required to make an order bringing the Act into operation on the date specified in the resolutions.
That provision reflects the fact that at the time the Hillsborough Agreement was signed, ratification of the Convention on the Suppression of Terrorism was set against the background of progress in relation to a number of matters covered by the Anglo-Irish Agreement. These matters were public confidence in the administration of justice in Northern Ireland, relations between the security forces and the minority community there and security co-operation.
Progress has been made under these headings. Legislation passed in Westminster last January will allow a greater number of offences previously tried by a judge alone to go for trial by jury. The Northern Ireland (Emergency Provisions) Bill, which received its Second Reading in the House of Commons on Tuesday, provides new safeguards regarding the emergency powers of the police and army, including a test of reasonable grounds of suspicion for the exercise of powers of arrest; it introduces increased rights for suspects in police custody; shifts the onus of proof in bail cases from the defence to the prosecution; and restates the conditions for the admissibility of confessions in scheduled cases. Measures have also been taken to reduce delays between arrest and trial, which will mean that persons will spend less time in custody on remand. Finally, certain court decisions, taken in conjunction with a statement of policy by the British Attorney General, appear to have greatly diminished the likelihood of cases being brought on so-called "supergrass" evidence without corroboration, especially against a large number of defendants.
Some of the changes I mentioned are still in course of implementation. Both Governments believe that further progress needs to be made on relations between the security forces and the minority community, on security co-operation and on the administration of justice, and they will continue to work towards that end.
This commencement provision has been carefully constructed to enable a further vital step to be taken towards ratification of the convention, while providing a mechanism whereby the Houses of the Oireachtas will be able to express their view again in the light of further developments.
Passage of this Bill would be a very important earnest of our intent to proceed to ratification of the terrorism convention against the background of progress on other issues mentioned in the Hillsborough communique.
I want to emphasise again that the Government are not creating a direct link between this legislation and any individual reform in the administration of justice in Northern Ireland. It is designed to give an opportunity to the Dáil and Seanad to review the introduction of the legislation in the light of progress overall in relation to the administration of justice in Northern Ireland, relations between the security forces and the minority community and security co-operation between the two Governments.
I therefore commend the Bill to the House.