I wish to inform the House that amendment No. 2 has been ruled out of order in view of Article 26 of the Constitution. I want to point out also that, in that printed list of amendments, under amendment No. 1 in the name of Senator John Robb the following phrase should be inserted, "Acceptance of this amendment involves the deletion of sections 1 and 2 of the Bill." Amendments Nos 1 and 3 are related and may be discussed together.
Extradition (Amendment) Bill, 1987: Committee and Final Stages.
I thank you a Chathaoirligh for your observations. I move amendment No. 1:
In page 2, before section 1, to insert the following new section:
Evidence in Extradition Proceedings in relation to Offences
1.—(1) In any proceeding under Part III of the Principal Act in respect of any warrant for the arrest of a person who is for the time being a citizen of Ireland and is accused of an offence, a final order shall not be made under section 47 of that Act unless documentary evidence within the meaning of this section shall have been produced to the District Court.
(2) In this section, `documentary evidence' means an affidavit or statutory declaration setting forth reasonable grounds for believing that the offence to which the request for extradition or warrant, as the case may be, relates has been committed and that the person before the District Court committed it.
(3) The Minister may by regulation made under this Act in relation to `documentary evidence' provide for any or all of the following matters:
(a) the persons or classes of persons who may swear an affidavit or make a statutory declaration.
(b) the persons before whom an affidavit may be sworn or a statutory declaration made,
(c) the form of an affidavit or statutory declaration and the manner and place in which it is to be sworn or made,
(d) the means of knowledge required of a deponent,
(e) the documents if any, that shall be exhibited in an affidavit or statutory declaration,
(f) such other matters as appear to be necessary or expedient for the proper working of this section,
(g) the revocation or amendment of any order made under this section.
(4) A document purporting to be an affidavit or statutory declaration for the purposes of this section shall be received in evidence by the District Court when tendered without further proof and it shall be presumed until the contrary is shown that the document was made for the purposes of this section and in accordance with the provisions of any order for the time being in force under subsection (3) of this section.
(5) In considering whether or not an affidavit or statutory declaration sets forth reasonable grounds for believing that the offence, to which the request for extradition or warrant relates (as the case may be), has been committed and that the person before the District Court has committed it, the Court shall have regard only to the matters set out in the affidavit or statutory declaration and any matters duly exhibited therein.
(6) Notwithstanding any rule of law or practice to the contrary a person who swears an affidavit or makes a statutory declaration for the purpose of this section shall not be liable to be summoned before the Court or cross-examined thereon in the course of any proceedings under Part III of the Principal Act.
(7) Every regulation made by the Minister under this Act shall be laid before Dáil Éireann as soon as may be after it is made and shall not have effect unless a resolution approving the said regulation is passed by Dáil Eireann.
(8) In this Act `the Principal Act' means the Extradition Act, 1965.".
In rising to move this amendment I will state the principles which led to its being drafted. First, it is recognised that it is much easier — and this is recognised in legal circles throughout the world and in democratic countries in particular — to obtain the conviction of a person who is guilty of an offence if the trial takes place in the jurisdiction in which the offence was committed. Extradition, therefore, is justified for the offences listed in the European Convention on the Suppression of Terrorism. Secondly, it is vital that safeguards are introduced to ensure, by every means possible, that no one not guilty of the alleged offence is extradited into another jurisdiction and, if he or she has been, that such safeguards will make it quite certain they are subjected to a fair judicial process resulting in their release. In providing these safeguards we should do so in such a way that there is the least possibility of compromise, and that there is conviction of the guilty.
Third, the procedure used by the requesting state must be monitored and attitudes to extradition from one country to another should be under continual review, and the law subjected to qualification, depending upon the respect shown for human rights and fairness in the requesting state. So it is on those three principles that I am promoting my amendment.
The need to convict those guilty and the need to safeguard the innocent apply in the ordinary process in the domestic law of all civilised states, but the need for safeguards is all the more important when we are dealing with emergency legislation such as the Offences Against the State Act here, the Emergency Provisions Act in Northern Ireland under which falls legislation enabling the single judge non-jury courts, and the Prevention of Terrorism Act in Britain. The need for safeguards in legal terms is heightened when the emergency legislation involved is the legislation in a different jurisdiction into which a requested state is to extradite citizens for trial. In this respect the tradition in Britain of rendition or the backing of warrants for the Commonwealth countries, and extradition with insistence onprima facie evidence for most other countries outside the Commonwealth, with notable exceptions such as those affected by the Washington Treaty, is surely not without significance.
Added to reservations about legal and perceptional difficulties is the effect of the long and bitter historical legacy with its residue of negative perceptions on all sides to which I alluded in my Second Stage address. In recent weeks some of these have been aired by Irish republicans in relation to extradition to Britain and Northern Ireland, and in Britain by the British in relation to safeguards being demanded as a condition for extradition from Ireland. In the Second Stage speech to which I have alluded I tried to tease out the reasons for these fears and the attitudes behind them and I also tried to highlight the divergent legal approaches to citizens protection that has developed in the common law of Britain and the constitutional law of Ireland. It becomes apparent——
I do not like interrupting any of my colleagues but the one thing I have to be careful of is that on amendments to any legislation I cannot allow any Senator to drift into a type of Second Stage speech. It is nicer to say it at this stage rather than later.
Thank you, a Chathaoirligh. I felt in fact that I might be transgressing in that direction when I was preparing this but, I felt it was necessary to give the background to why I feel this amendment I am putting forward is important. I shall do my best to come back on the tracks on which you are indicating that I should remain. You know I have considerable difficulty in this direction and I will certainly be glad to receive your advice and admonition.
The only advice I will give you is that I will stop you again.
Thank you very much. I have no doubt that you will do that if you feel it necessary. The puff-puff that I am driving is not yet exhausted. However I understand the position I have placed myself in and I certainly respect the Chair and the observations made from the Chair.
What we are dealing with here is the priorities to be given and the way in which we deliver the safeguards. The Extradition Act of 1987 has addressed itself to these by subjecting a warrant to the scrutiny of the Attorney General who will not, let us re-emphasise, endorse it unless there is a clear intention to prosecute and such intention is founded on sufficient evidence. Furthermore, as the Minister pointed out in the Second Stage debate, the Attorney General at that stage cannot himself extradite because the offence has to be put before the courts to see whether or not it is an offence that is extraditable.
The fears that have been expressed that the Attorney General might be swayed by political considerations not to endorse the warrant have been expressed. I will try to tease out why I am not altogether happy with the Bill as it stands and why it is necessary to try to promote an amendment. Such fears border on cynicism with many of the Northern Loyalist population, but they have also been expressed in England. While I understand these fears, I would say that with every year that passes they become more and more unfounded, and this despite the difficulties in the republican consciousness in relation to the legacies of the past and reservations, some grave, concerning the emergency legislation in the present as it exists in Northern Ireland and England.
On the other hand, those whose chief concern is with civil liberties would express concern that the same Attorney General on his own could not provide safeguards adequate for the protection of the rights of the individual, and in particular the innocent, in an area so redolent with raw nerves, emotive responses and political repercussions. In all of these respects, it is gratifying to have read that, over the weekend Mrs. Thatcher has indicated more understanding than she had last week of the difficulties. Perhaps, unlike Senator Shane Ross, she reads the Northern paperThe Newsletter. Hopefully in response she will now give serious ongoing thought to reducing the numbers of cases heard before single judge non-jury courts because this is very relevant to the Bill, the safeguards and the reason for the amendment.
In this respect let me take this opportunity to knock on the head the report in Friday'sIrish Times when it was said that I was glad the pendulum has swung from the positive to the negative on Anglo-Irish relations. I know I am straying here a little, but I hope you will give me some licence because I believe I was wrongly reported, subject to reading the Official Report. If my speech was so long and I was so tired, then it was a very serious slip of the tongue. If, on the other hand, the long suffering reporter was tiring of the delivery, while I can sympathise, I would be grateful if he or she might take steps to amend. I was in fact suggesting that it was constructive for us all that relations between London and Dublin had, in recent years, begun to swing from the negative to the positive. I only make that point in passing. In fact, I said that it was vital that the Anglo-Irish understanding should not be allowed to falter as a background to what we are discussing.
Returning to safeguards in relation to extradition, especially the extradition of persons to be tried before non jury courts with their own rules of evidence, I would also like to correct another impression gained from an incorrect statement in the editorial ofThe Irish Times of October 22, I am not, repeat not, a passionate supporter of three-judge Diplock Courts. I would agree with Fr. Denis Faul that it is a much wider and deeper problem requiring a much more sophisticated response than an extra two judges.
I was reported as saying that extradition could be instrumental in reducing the present campaign of violence. This was a very wide interpretation of what I was saying. What I did try to convey was that the removal of those who are guilty of deliberate killing and maiming will be aided by successful conviction of such as are guilty. Let it be added here that deliberate killing, whether perpetrated by people in or out of uniform, should be amenable to the law. However, unless the guiltless are protected from wrong conviction and the guilty protected from torture in human or degrading treatment in the process of interrogation and unless we all strive to monitor the effects of all emergency legislation at the same time, whether it is in this jurisdiction or in other jurisdictions to which extradition is taking place, then as we earnestly seek to promote the understanding that can give a prospect of a democratic political settlement, extradition for the sake of extradition will more than likely lead to more resentment, more recruitment and more, rather than less, violence.
It is one thing for the European Convention to determine what is or is not a political crime and to criminalise certain violent activities, which has been done through the convention by classifying them as non-political. It is quite another to remove from the arbitrators and their supporters the conviction that the motive is political. It is therefore vital——
I am sorry, Senator Robb. The points you are making are Second Stage points. We are now at the commencement of Committee Stage and the Senator should address himself to the amendments which are quite clearly written out by himself. I cannot let this type of discussion go on on amendments that are very specific, as I read them.
All right. May I briefly come to the point that you are driving me towards with considerable verve? It is important to understand why one feels it necessary to raise this amendment in view of the fact that I have already supported the Government's Bill. I am trying to tease out the existing difficulties in order to show the particular predicament which faces the Attorney General and why we should be moving in the direction of the amendment. Let me see if I can concisely state the further drift, as they call it in North Antrim. The line of my drift has been somewhat disturbed.
Not for the first time, Senator.
It is because of the Senator's drift.
I thank Senator Loughrey. It is nice to have him back with us again. He was drifting into more domestic matters in recent times.
Senator Robb to continue, without further interruption.
It is vital that we deal with extradition which claims political motivation not in isolation from its effects. We must do that in the context not only of the development of adequate democratic structures, not only of insistence on adequate safeguards at all times for the rights of the citizen but also, in particular, the rights of the citizen in relation to arrest, following arrest, during interrogation, in the period between interrogation and trial and throughout trial, and, if convicted, time in custody. We want to reduce resentment. That is what I am after and I have now come back to the central track. We must try to reduce to a minimum resentment and the political reaction arising out of resentment. We are dealing with an amendment to ensure that extradition only takes place to Britain and Northern Ireland when we are satisfied, as far as is possible to be certain, that there is a case to answer.
With regard to the role of the Attorney General, I believe in the light of what I have said — and this is why I have said it — that the Bill's provision will be reviewed after a year. Second, and much more important, I welcome the prohibition on improper communication with the Attorney General for the purpose of influencing the making of a decision by him to give a direction under section 44a. However, the very safeguard which is so important is also tending to promote further his isolation in these acutely sensitive matters. We must consider such isolation in terms of its effect on him as a person and its effect or perceptions by the people who have placed him in a more and more remote context.
Just as worrying is the concern expressed by Senator Robinson in this House during Second Stage debate that the Bill may fall before the Supreme Court because of the role exercised by the Attorney General. Were this to happen, the negative vibrations elsewhere would be considerable. Thus it is that I have introduced what was, in essence, an amendment put down in the other House by Deputies O'Malley, Harney and McDowell, mainly with a view to achieving three things — and this is important, a Chathaoirligh — first, to ensure a more open process through the courts; secondly, to make it technically easier to obtain extradition of those guilty of the offence than it otherwise would be ifprima facie evidence had to be produced in the courts and the technicalities associated with that had to be gone through and, thirdly, at the same time, through the scrutiny of affidavits, to ensure a more open protection than is at present envisaged. It is because of these concerns that protection for the citizen is so important and because extradition should have, not the enthusiastic, but the qualified support of the people in the Republic. That is a very important aspect. Therefore, there must be seen to be fair play and adequate safeguards if the present progress in this area is to be sustained and improved.
We cannot, in promoting this, fail to take account of what was said, and I will not repeat it because we are on Committee Stage, by an English barrister, Mr. Michael Mansfield, in Dublin last week — I take it that under the rules of this House, I would not be allowed to quote fromThe Irish Times in that respect — and by an English solicitor who was also here last week. What was said in relation to the treatment of Irish prisoners and attitudes to them makes alarming reading. Therefore, openness at all times becomes essential. We do not have to go to England because in The Irish Times today that situation is confirmed in an article by the Rev. Denis Fall and the Rev. Raymond Murray who have throughout these years been great champions of human and civil rights. Am I correct that I would not be permitted to introduce what they have said at this stage in promoting my amendment?
Then I shall not. There is much concern and it is because of that concern that it is essential to try to make the process open with those two great things in mind, first, extradition of the guilty, with which I am in complete and unequivocal support, and, second, the need to safeguard the innocent. The third thing is to ensure that when people are extradited, to wherever they are extradited, the situation is fair. It is essential — and I emphasise this — to make a distinction between extradition to Britain where, in regard to the legal process the Irish Government have such little influence outside of diplomatic channels, and extradition to Northern Ireland, over which process the Government through the Anglo-Irish Agreement may exert considerable influence.
I come now to the amendment. In promoting this idea in the Washington Treaty which governs extradition between Ireland and the United States and extradition between Britain and the United States we are promoting something that will take the extradition issue out of the political arena and place it in an open court, and, possibly, most important of all, will give the person who may be extradited knowledge of the charge for which he is being extradited. This does seem to relate to Article 8 of the Washington Treaty which you can read about if you wish in Michael Ford's recently published bookExtradition Law in Ireland.
As I understand it, the United States insists on an affidavit being produced before it will extradite a person to Britain and it also insists on an affidavit being produced before it will extradite a person to Ireland but for some strange reason neither the Irish nor British Governments insist on affidavits being produced in their countries before they will extradite a person to the United States. If both Britain and Ireland were to move to that next step and have reciprocal arrangements with the United States whereby affidavits would have to be produced before a person would be extradited, we would clearly be ready to have the same arrangements operating between Britain and Ireland and this amendment would stand for very obvious reasons. Therefore, this amendment has much to commend it. I hope the House will consider it. I need not go through it in detail. Presumably everybody has read it. The amendment deals in a very effective manner with many of the difficulties which have been expressed in regard to the role of the Attorney General and it also deals with many of the reservations which have been expressed without in any way interfering with the very desirable object of ensuring that those who are guilty of such henious offences as have been listed in the European Convention on the Suppression of Terrorism and of other offences can be extradited and tried where such trial is most likely to lead to conviction, namely in the country in which the offence was committed.
Before I call on the Minister to reply to Senator Robb, Senator Ferris asked whether we are taking amendments No. 1 and 3 together.
In fairness to——
I shall call on you in a minute.
——Senator Robb it would be better for him to have a response from the Minister.
I am also concerned about you. I dislike interrupting any of my colleagues in the middle of their contributions. Senators who table amendments word those amendments. Those same Senators may already have made long and profound speeches on Second Stage so I appeal to all of my colleagues for the rest of the afternoon to stick to the amendments they have worded themselves. The Minister is now going to reply to Senator Robb and I will then call on Senator Ferris.
It is normal practice that where amendments are being taken together, in this instance amendments Nos. 1 and 3 are being taken together, that the second amendment should be proposed. If Senator Ferris makes his points I will reply to both him and Senator Robb together. The amendments are interwoven and I would end up repeating to one what I had said to the other.
I appreciate the Minister's dilemma. The two amendments are similar but the House will decide on each of them separately. Our amendment reads as follows:
In page 2, before section 2, to insert the following new section:
2.—Part III of the Principal Act is hereby amended by the insertion of the following section after section 44.
It is not necessary to put the amendment on the record of the House as it will be reached later.
I thought you were anxious for us to stick to the precise wording of the amendment——
All I seek is that you stick to the wording of the amendment you have tabled.
First, I have to give a reason for tabling this amendment which seeks to insert a new section and to say why the section which has been inserted by the Minister does not meet the case made in our amendment. The Labour Party are opposed to any involvement of the Attorney General in the process of extradition. If I start from that base, I would also have to be opposed to the Bill and we did vote against it at the end of Second Stage. I was rather surprised that the Minister could not see fit to include anything along the lines contained in this amendment proposed by us because in the other House he spoke in favour of the principle of aprima facie case or an allied prima facie case. We consider that much more desirable than involving the office of the Attorney General. It is highly undesirable to involve the Attorney General.
The Constitution sets out the precise role of the Attorney General which is that he is an adviser to the Government in an administrative role. By its very nature any decision made by the Attorney General would have to be made behind closed doors rather than in an open court by a judicial process where the public would be aware of the case being made for extradition and of the case being made by the defence against extradition. If justice is to be done it will have to be seen to be done. The Attorney General in looking at a request for extradition and in forming his opinion on it will do so in the privacy of his office. The Attorney General although not a member of the Government does sit at the Government table. One would expect that in the normal day to day running of the affairs of State an extradition request would come before the Government and that the Attorney General whose role is set out in the Constitution would be required to leave the Cabinet table while the request was being discussed. Because of the amendment which was accepted in the other House the Government, in common with all other public representatives would be precluded from interfering with the functions of the Attorney General as set out in this Bill. That will make it almost inoperable and we would like to query the process which would follow.
The present extradition arrangements do not require the new definitions which are written into this Bill. As a result of this most unusual step a new process will have to be followed in a forum which the public are not privy to. We consider it appropriate that if there is a book of evidence or a warrant which can be substantiated by evidence, affidavits or statutory declarations, signed and witnessed, it should be presented before the District Court. At least people would then be aware of the case being made for extradition and that is appropriate. Extradition is a very serious matter. It is appropriate that there be a process which would allow for people to be extradited if the need arises but it is also important that it be not a haphazard system. I listened to the Taoiseach when he was in Copenhagen at the weekend referring to cases under existing law where there were difficulties because of some problem the British seemed to have about getting their act together. I tell the Minister they are very critical of us, and he rightly has put it on the record of the Seanad and of the other House that we will legislate for ourselves. We will listen to and take advice from other people but no other jurisdiction should interfere in our internal legislative process.
Apart from criticising the interference of the British Prime Minister, which was most inopportune, if we want to be really critical we can say that we have seen in recent years some of the anomalies that have arisen because the British obviously are unable to produce evidence to the minimum standard required here. I say "minimum" deliberately because we have tried to make extradition as workable as possible where there were excellent grounds for it.
Senator Ross this morning rightly pointed to some of the cases in which people were extradited and the British afterwards failed to produce a case and because of that they were released and back in our jurisdiction again. He said in support of the judicial system up North, that in that instance it seemed to work. We are more anxious to ensure that a proper case is documented here before the person leaves the jurisdiction. If it was properly documented and if this District Court process we are suggesting in our amendments was in place and working properly there would be a much better opportunity for all sides, the Government, the courts, the judicial system and the applicant country, to make the case properly.
It is a most unfair burden to place on the Attorney General and his office who have a defined role in the Constitution and are now suddenly being given an additional and at times unworkable role in this. We hope we are wrong, but it is our duty in preparing legislation at least to point out what we consider are the anomalies in this process.
I said on Second Stage that I was pleased that a new amendment was accepted in the other House which at least removed the Attorney General's Office from interference. Whether that interference was warranted, unwarranted, subjective or whatever, the very fact that there would be any interference would make the Attorney General's job totally untenable in this area. I welcomed the fact that he, like the DPP, is removed for the purpose of this Bill from representations from anybody. He has to make a decision completely, openly and frankly in his own mind. I am not sure what process he will use to make his decision or form an opinion or on what grounds he forms the opinion.
If in his opinion the grounds are not good enough to warrant him allowing an extradition or a procedure for an extradition, does he contact other persons and inform them of that opinion? Do they make other efforts to produce additional information so that he can form an opinion afterwards? It is extremely complex and is not spelled out sufficiently at least for the members of the Labour Party to say that we are satisfied that we could follow this procedure. We are not sure that there is a proper mechanism in the Bill itself to bring the Attorney General's power into play or to indicate when his power is brought into being.
Senator Ferris, I had to —"reprimand" is too severe a word — ask Senator Robb to stick with the amendment. I might be terribly wrong but if we let the Minister in at this point and then you had a further question of concern after listening to him it might help procedures.
I bow to your ruling. I had hoped that he would respond to Senator Robb first and that would have given me a guideline as to his possible response to me.
Senator Ferris, he is here for the evening. He will give you any answer——
I am here as well. I want to be helpful and constructive and I will bow to the Minister at this stage. Perhaps he is going to accept my amendment and frighten you, a Chathaoirligh.
The purpose of both of these amendments is to require that before extradition can be granted aprima facie case, or something analogous to that has to be established in the District Court. The idea underlying the amendments is that the question of sufficiency of evidence is one that should be determined by the court.
I understand fully and respect the motivation behind these amendments. I agree with the objective of the amendments, which is to provide a safeguard on the sufficiency of evidence, but I disagree with the method chosen to achieve that objective. The difficulty about theprima facie requirement is that, in legal systems similar to our own, it has in practice proved to be a formidable obstacle to extradition. Ironically, it is the experience of the operation of the prima facie requirement in Britain which has given greatest room for doubts about the desirability of such a requirement. Britain at present applies the prima facie requirement in relation to extradition requests which it receives from all countries except Ireland.
The British experience has been that the imposition of this requirement in relation to other European countries has proved to be a substantial technical barrier to extradition. Many European countries have found the requirement to be difficult if not impossible to cope with in practice. The net result is that for a number of European countries Britain has come to be regarded as a place from which it is very difficult indeed to get extradition. In recognition of this situation the British Government have brought forward legislation, which is now going through Parliament, to enable them to dispense with theprima facie requirement in extradition cases. When the legislation has passed it is the intention of the British Government to become a party to the European Convention on Extradition of 1957.
The Government do not favour the introduction of aprima facie requirement in our law because the strong probability is that it would cause expense and delay in extradition proceedings and would result in the failure of legitimate extradition requests. If the prima facie requirement were to operate in a way which would provide the same protection as is available in a domestic criminal case in a preliminary examination, the prosecuting authorities in a foreign jurisdiction would be obliged to prepare, at short notice, a Book of Evidence which would comply with Irish rules of evidence. They would also have to be prepared to face the possibility that key witnesses would have to be made available in court to be examined on their written statements.
The amendments which are proposed here seek to avoid difficulties of that kind by providing that it would only be documentary evidence which would have to produced in the District Court. I recognise and appreciate that the intention behind the amendments is to avoid undue complications arising of the kind that might otherwise be associated with theprima facie requirement. I am not satisfied that what is proposed would work out in the way intended and I am very much afraid that in practice it would lead to undue complications and could pose a decided obstacle to extradition. There is a strong danger that, irrespective of the terms in which a prima facie requirement would be couched, the reality would be likely to be that once the issue of the adequacy of the case against the person sought became justiciable in court such doubts and questions could be raised by the defence that the foreign prosecuting authorities would be forced to produce witnesses in court or run the severe risk of losing the extradition application. My fear is that any variation on the prima facie requirement would involve evidence having to be established in the relevant court proceedings and would, therefore, be likely to result in the failure of legitimate requests. That would be an unacceptable prospect at any time but it is particularly unacceptable at present when there is very strong public feeling that the perpetrators of terrorist acts should not be able to treat this jurisidction as a safe haven.
Senator Robb made the point that both Ireland and Britain have agreed to a probable cause provision being included in their respective extradition treaties with the United States. He wondered why, therefore, Ireland and Britain could not adopt this provision and apply it in their extradition relations between each other. However, in both the Anglo-American and the Irish-American extradition treaties the probable cause provision is applied at the United States end only. This is because the concept of probable cause is one which is peculiar to American law and has its origin in a provision of the United States Constitution.
It may be that probable cause works satisfactorily and does not constitute an excessive restriction on extradition in the American system. However, there are serious risks inherent in transplanting a concept that is well-rooted in one legal system to the alien soil of a different legal system. Legal traditions and procedures and judicial approaches vary considerably from country to country. There can be no guarantee that if we were to adopt the probable cause concept that it would work as smoothly and efficiently as it may well do in the American system. For that reason the Government consider that the approach taken in the present Bill on the question of sufficiency of evidence strikes the right balance between the need to provide safeguards for the rights of individuals facing extradition and the need to ensure that extradition arrangements can work without undue complication or restrictions. Unfortunately, in answer to Senator Ferris's question, I cannot accept the amendments.
I would like to surprisingly row in behind the Minister on this, which is an unusual position to be in.
Mind yourself, Minister.
The Minister must be wrong.
Having done that, perhaps he will accept the amendments.
I am worried about the Minister now.
If I could continue without interruption from the Chair for once I would be very grateful. Having listened to Senators Robb and Ferris there is absolutely no doubt of their sincerity and integrity. The amendments are only suggested with the intention of safeguarding the rights of Irish citizens so that they can get the fairest possible trial.
An awful lot of nonsense has been talked aboutprima facie evidence being given. It sounds particularly good, worthy and just that this mainly superficial but convincing evidence ought to be produced if people are to be extradited and it is difficult to argue in principle against something like that. The Minister put his finger on it when he said that in practice it is almost impossible to extradite people under this rule. In practice, we will find that terrorists will be acquitted, let off and not extradited because of the difficulties he pointed out and because there would be a difficulty about producing a book of evidence in another jurisdiction which would take account of that jurisdiction's laws.
It is very difficult to produce witnesses and to make them cross borders to give evidence. If this requirement were introduced — it is now going out of fashion in Europe and in other countries — it could possibly be even more obstructive than the Attorney General's system which is being introduced. Some of the objections the Minister produced to theprima facie requirement could also apply to the system he has introduced under the Bill. It would be wrong for us to put forward, as Senator Ferris and Senator Robb have, a very worthy theoretical system for extradition which in practice would prevent people from being extradited.
I think I am now in a minority of three in the Oireachtas, myself and two Members of the other House, in being opposed to extradition. Therefore, my position on this Bill is somewhat different from most of my colleagues. These amendments will make reasonably balanced the operation of extradition to jurisdictions where I do not believe one can guarantee that citizens of this country who are caught up in the emotions which are entangled in this issue will get a fair trial. Because of that, it is important that there should be real safeguards and I am not persuaded that the present procedures envisaged in the legislation represent a real safeguard. I will deal with this later when I come to my own amendments. Even though the amendments do not go nearly far enough, I will support them because they represent a restoration of the balance and also because I recognise the fact that we have to go through as many possibilities as possible to try to identify what are the most appropriate safeguards. However, I would like the Minister to elaborate on a couple of points.
Is it true that there are a number of countries who have ratified the European Convention on the Suppression of Terrorism who have entered in restrictions among other things about the extradition of their own citizens, in some cases retaining the equivalent of aprima facie case being made? If there are, perhaps the Minister would tell the House what the precise position is on the ratification of the European Convention on the Suppression of Terrorism by other countries so that we do not get the impression that somehow there is only one country in the OECD which is somewhat reluctant to pursue the issue of balance and rights for their own citizens? I do not have on me the up-to-date information in the detail which the Minister has, but I am led to believe there are a number of reservations entered in by countries who are happy they have ratified the European Convention on the Suppression of Terrorism but who still impose considerable restrictions on the extradition of their own citizens and in some cases make their equivalent of a prima facie requirement an essential part of the operation of that procedure. Perhaps the Minister could clarify that.
This issue is, to a certain extent, being clouded by pressure on us from another country. On the issue ofprima facie in British law, I know they are putting legislation through Parliament at present to eliminate that but I understand from newspaper reports, which are not necessarily reliable, that there will be a provision for judicial review of extradition orders. I would be interested to know what that judicial review will involve. Will it involve an assessment of the evidence by a British court before a British citizen who is aggrieved about an extradition order can be extradited? It appears that in the hightened sense of sensitivity and emotion that has existed in this country after recent events that we are perhaps being railroaded to a certain extent into doing something that under greater detachment we might not be keen on doing.
The House is entitled to the full information on the precise nature of any reservations on the issue of extradition that have been entered in by other parties to the Convention and also the precise nature of the judicial review, if the Government are aware of it that the British Government intend to make available to people who are to be extradited under British legislation. This might clarify for us that we are not some virtual pariah in Europe who are imposing safeguards that are unreasonable by other people's standards. They may be unreasonable to our nearest neighbour but our nearest neighbour is not necessarily the best judge of what is reasonable under conditions like this.
We do not extradite our nationals to other countries except in the case of Britain. Any derogations decided on by other countries who signed the Convention were placed at the time of the signing and ratification of the Convention. We are not talking about that now; we have signed and ratified the Convention and, therefore, as of now we cannot put in anything by way of amendment that will in any way interfere with what we have already done. The decision has been made and as of now it is behind us.
I accept that in the case of the 1987 Act which came into operation on 1 December it is not possible to seek aprima facie condition because it will be in contravention of the Convention. However, the Bill before us seeks to amend the 1965 Act which deals with extradition to Great Britain and its colonies, if I might use that description. It was because of that we felt it was appropriate to write in judicial safeguards, if possible. In trying to amend the Bill it is appropriate that we should see how the 1965 Act has worked and who had been excluded in Part II of that legislation.
People are excluded in respect of a political offence or an offence connected with a political offence, offences under military law which are not offences under ordinary criminal law, in respect of revenue offences, where the offence for which extradition was requested was committed in Ireland or where a prosecution is pending in Ireland, where the statute of limitation applies, where the offence is punishable by death in the applicant country but not here unless the Minister for Justice is satisfied that the death penalty will not be carried out and where final judgment has already been passed on the person in Ireland or a third country in respect of the same offence.
In addition extradition cannot be granted unless the law of the applicant country, or the extradition agreement, provides that the person extradited will not be proceeded against for any offences committed prior to his surrender. The exceptions to this are, if the Minister agrees and where the person extradited is acquitted of the offence and fails to take a reasonable opportunity to leave the jurisdiction. The same rule applies in cases of re-extradition to third countries. We apply the same rules to people extradited to this country.
I should like to remind the House that section 22 of Part II of that Act includes aprima facie requirement. That section states:
Where the relevant extradition provisions require the production by the requesting country of evidence as to the commission by the person claimed of the offence for which extradition is requested, extradition shall not be granted unless sufficient evidence is produced to satisfy the requirement.
Consideration ofprima facie is, therefore, not new. It has been a feature of our law for a long time although admittedly not all extradition agreements in the past 20 years included it. I am pleased the Minister has accepted our bona fides in moving this amendment and that he realises why we need this safeguard. I realise why the Minister feels unable to include such a provision. If I accept this argument I, therefore, must come to the conclusion that he wants section 2 to stand.
In the event of section 2 remaining, will the Minister explain how the Attorney General will be involved? Will the Attorney General be involved before the Minister has given consideration to whether he should endorse a warrant or will the Minister wait until the High Court has decided there are no grounds open to it to refuse to endorse a warrant? At what point will the Minister say he is not satisfied with the procedure presuming that section 2 is retained? The Attorney General will be considering all the evidence in his office and it will not be open to scrutiny by the country seeking extradition or the person whose extradition is sought. Public representatives are also excluded from making representations on behalf of a constituent whose extradition may be sought. We have to presume that guidelines will be prepared. We are all aware of the role of the Attorney General as defined in the Constitution but we must remember that he is also involved in the preparation of the legislation presented to the Houses of the Oireachtas. I take it he was involved in the preparation of the Bill we are discussing?
I am trying to clear amendments No. 1 and 3 to section 1 but it appears to me that the Senator's questions relate to section 2. Has the Senator gone ahead of me?
I have not. If my amendment is accepted section 2 will be deleted. The Minister has already stated he does not intent to accept my amendment but he is presuming I will be accepting section 2 as it stands.
I am trying to clear amendment No. 1 which relates to section 1. If I clear that amendment, and amendment No. 3 which is related, we can then move on to section 2.
If I have failed to amend it.
That is what the Senator says.
As the Minister said he will not accept my amendment, I must presume that section 2 will go through without amendment. In order to be clear on whether I should call a vote on my amendment I must be sure that the alternative suggested by the Minister is inoperable. I am anxious to know how the Office of the Attorney General will operate these provisions.
All I have to do——
Is extradite yourself from this debate.
I have to clear the amendments and the sections separately. The debate on the sections will not take place until the relevant amendments have been dealt with. In my opinion the Senator is debating section 2, and fair play to him if he gets away with it. I have a job to do and I want to get the Senator back on the rails.
I am anxious to help the Chair.
On a point of order, is it not in order for a Member to seek clarification of a section before he decides what to do in regard to an amendment? If Senator Ferris does not understand what the section means, how can he decide what to do with his amendment? If he wishes to push this to a vote, or wants to withdraw it, I do not know how he can do that if he does not understand the section and cannot get an explanation of what the section he is endeavouring to amend means.
That is the point. I am grateful to Senator Ryan for explaining to the Chair that I was not drifting from my amendment but was seeking an explanation of the section. I do not want to be left with a section that I do not understand. In my view it will not be possible to operate it and that is the only complaint I have against the section. It will be making this process very difficult. I should like to know how these new procedures will operate. It is obvious the Attorney General was involved in the framing of the Bill but under the Official Secrets Act he is precluded from disclosing to me how he arrived at his opinion. The Attorney General has informed the Government of how he intends to operate the section but I cannot question him about that. What other procedure is available to me before I decide on my amendment? I am no trying to be difficult about this.
We will not be difficult about this but I am trying to get the Senator to deal with the amendments before the House. I accept that the Senator is entitled to raise any question he wishes when we are discussing this but at the moment we are considering amendments Nos. 1 and 3. I should like to thank Senator Ryan for helping Senator Ferris and the Chair. He is helpful to me at times. I appreciate that Senator Ferris is trying to make the best case possible but he can have his queries cleared up when we come to debate the section.
Our amendment was put down because the parliamentary party wanted to know how this could work. We examined this matter in detail and had some legal advice available to us. We read theIrish Law Times of April 1986, a solicitors' journal, which had an editorial on extradition. I will not bore the House with the full quotation but it dealt directly and specifically with the advantages of a prima facie type of evidence, particularly relating to extradition. We felt the 1965 Act was being interfered with. It was not our suggestion to change the 1965 Act but the Government's. It is appropriate that Members on this side of the House should have an opportunity to comment on the Government's reasons for changing the 1965 Act. Our main concern was about the 1987 Act which came into force on 1 December. We want to know why the Minister is amending the 1965 Act because, in our opinion, some of the provisions in these amendments will be inoperable. I hope I am wrong, but that is our view. That is why I expressed concern about the 12 months review. The Minister kindly responded to that point on Second Stage this morning and I appreciate his comments which were made in good faith.
I am of the opinion that our amendment is valid and legitimate and will act as a safeguard to out nationals, particularly when we extradite them to another jurisdiction about whose system of justice we have had some concern over the years.
I will ask a monorail question. May I ask the Minister to consider the process for annual review of the legislation now on the table? We have heard the case put for rendition by Senator Ross, the Government put forward the case for the Attorney General signing the warrant. I have suggested, and the three Deputies from whom I copied the amendment suggested affidavit type evidence in court, and the Minister was kind enough to show that he appreciated the points made. Finally we have theprima facie case being made by the Labour Party. When the process is duly reviewed on an annual basis, or as a result of the formal study which is being proposed by the Taoiseach, will it be possible to consider the need to move in any of these directions as relationships develop and improve, as we all hope they will, or in the event of relationships getting worse, or respect for human rights in other jurisdictions not being what is considered reasonable in relation to Irish citizens. Is it possible that the amendments put forward today will be taken into account as alternatives to the present arrangement when the whole process relating to extradition is up for its annual review?
With regard to Senator Robb's queries, if it can be shown at the time of the review that the legislation does not work, then measures will have to be taken to make sure that it does work. These measures will be determined at that time. With regard to the question raised by Senator Ferris, the full details of administrative arrangements to give effect to section 2 have not been finalised as of yet. However, I think the Senator can take it that every warrant covered by the Bill, as soon as it is received by the commissioner, will then go to the Attorney General. That is the intention and this will be finalised very quickly. Under this legislation I will also be made aware of the receipt of the warrant. If the Attorney General gives a direction under section 44A, or I give a direction under section 44 that the warrants will not be enforced, then the commissioner will not endorse the warrants until he has been informed by the Attorney General or myself that we have decided not to give a direction. The procedures will be along those lines and they will be finalised in a matter of days.
Will they be by way of ministerial orders? Will they be laid before the Houses of the Oireachtas?
Those are by instructions.
When will I know about them?
I will make sure the Senator is informed as soon as they are finalised.
I find it difficult to legislate for something on the never never. I appreciate that the Minister will be acting legitimately, but I have to have regard to the powers we are conferring on the Minister and we are not sure yet how he will operate them. Will these instructions be laid in the Library of the House?
There is no precedent for this but there should be. There are administrative arrangements to give effect to the particular section of the Bill and as soon as they are finalised I will inform the Seantor.
The Minister has made a very interesting observation in relation to the instructions he will issue on foot of the section. It would be important, not just for Senator Ferris who showed an interest in the matter, but for Members of the House to have access to any such instructions. This is clearly a matter of considerable public interest and any instructions should be made available in the Library of the Oireachtas and accessible, not just to Members of the House, but to lawyers who may have clients to advise on such matters in due course. However, I wanted particularly to refer to the Minister's comment in that regard because it is an important issue to have emerged in this Committee Stage debate.
I would also like to refer to the amendment moved by Senator Ferris. I take the point he made that the reason this amendment is moved in this Bill is that this Bill amends the Extradition Act, 1965. The real question for the Minister in responding to this amendment is what, if any, legal consequences would follow if this amendment were carried? The reason I pose the question in that way is that there has been an argument made that, because when Ireland signed and ratified the European Convention on Extraditon we did not reserve the position, it is not open to us now. I am asking what the legal consequences would be if this amendment were to be accepted and if aprima facie rule were to be included now by way of amendment. The reason I am asking this stems, to some extent, from the Minister's Second Stage speech where he quite rightly said that in practical terms, when we talk about extradition from this State, we are talking almost entirely about extradition to Northern Ireland and Britain. That is why the safeguards in the Bill will deal with those arrangements. From a realistic and practical point of view, when we talk about extradition we are talking about extradition to Britain and to Northern Ireland. It is a very complex and very sensitive subject but it is important that this House should be made aware if there are or anticipated to be particular legal consequences flowing directly from the possibility of an amendment being accepted. I would be grateful if the Minister could clarify that point.
I understand at this stage that it is not possible for us to enter a reservation after we signed and ratified the Convention 1957; 20 years ago.
As the Minister is aware, the United Kingdom has not signed and ratified that Convention and they did not see fit to do so. How many people have we extradited to other countries governed by the Euorpean Convention in those 20 years'.
One, I think.
What would be the real implications in practical terms if the proposals in the amendment were technically in breach of the Convention? What are the real consequences for us? Is there any clear likelihood that other countries partner to the European Convention would require that we dissociate ourselves from the Convention that we repudiated and so on? Most member States are aware of the sensitivity of extradition matters. A number of them, as the Minister has pointed out, on signing and acceding to the Convention, provided for aprima facie rule. They did it by derogating at the point of entry, if I could put it that way, at the time of the Convention 20 years ago. We did not.
How significant is that European Convention on Extradition in real terms? The reality, as the Minister said in introducing this Bill, is the relationship with Britain and Northern Ireland in relation to requests for extradition. It is certainly something that should be very seriously weighed by this House and should be weighed in the light of what are perceived to be the consequences. I made the point on Second Stage that lawyers basically like to have safeguards and theprima facie requirement is an inherent safeguard in extradition proceedings.
I do not know what was the motivation and the view taken in relation to the Convention extradition 20 years ago but clearly the absence of filing a derogation or making it clear that Ireland would wish to include in our own extradition law and agreements aprima facie provision was something that to some extent was foreclosed by not having derogated or indicating that we wished to do so at the time of signing the Convention. Now, because we have a Bill before this House amending the principal Act, amending the Extradition Act of 1955, it calls for very serious examination indeed because that is at least one way of removing some of the earlier difficulties which have been in the extradition procedures.
It is not possible at this stage to enter a reservation into something that was signed and ratified about 20 years ago. The practical difficulties that Senator Robinson mentioned would arise have already been spelled out in detail during the course of my reply to the proposals on the amendment. Whereas I appreciate what Senator Robinson said with regard to the desirability of having aprima facie evidence requirement, in practice it would render extradition almost impossible and we would not be able to deal with genuine extradition warrants and extradition cases. I gave a lengthy reply to Senators Robb and Ferris on that.
Monday morning is not the easiest time but I obtained and read the Minister's reply to Second Stage so I am aware of what was said then. To say it is not possible to enter a reservation at this stage to a Convention signed 20 years ago is fair enough. We have taken that on board but of more significance in relation to considering this amendment is what the consequences would be if, notwithstanding that, the Oireachtas were to decide to accept this amendment.
The Minister has fallen back on a practical argument. Perhaps he would spell out the practical difficulties in relation to it. The reason I ask that is that the Minister in the Bill is producing another kind of step in the direction of the Attorney General. If it is possible to choose between the direction of the Attorney General and the submission of aprima facie evidence to a court, then I know which one I would prefer to opt for as a safeguard. It is important to give a very clear indication to the House as to whether there were any legal consequences. I do not believe there would be any legal consequences. I believe no other member of the European Convention on Extradition would raise the issue and say that Ireland would have to repudiate the Convention and if Ireland found that it was not possible to continue as a member then we would be in the same position as the main country with which we are concerned, the United Kingdom.
Senator Ryan referred to a proposal in the British Parliament to adapt British extradition law which at the moment does require and provide for the provision ofprima facie evidence. My understanding of it is, and perhaps the Minister could clarify this, that it was amended in the Lords and that in fact a prima facie requirement has been reinserted. Is that the present position?
No, that is not the present position.
Perhaps the Minister could tell me what is the present position.
As far as we know, the experience of extradition as far as applications whereprima facie applies, the British example is that every Spanish application to the UK from 1953 to 1978 failed because of the prima facie requirement. They had similar experiences with Austria, Italy and France where case after case failed even where the prosecuting authorities in Britain were satisfied there was a serious case to answer by the person whose extradition was sought. Two other countries in the Council of Europe retained the right to impose a prima facie requirement; they are Denmark and Norway. This right is reserved to the Minister for Justice and not the courts. In these two countries, I understand, this right is not exercised. I am satisfied that if there is any doubt whatsoever, if we had a prima facie requirement in this legislation it would make it almost impossible to extradite people.
The Minister stopped at a point where I had hoped he might extend his reply. He has already provided some useful information to the House. In what way would it be impossible to extradite people?
I repeat what I said in regard to the proposal for the amendment. The difficulty about theprima facie requirement is that in a legal system similar to our own it has in practice proved to be a formidable obstacle to extradition. Ironically, it has been the experience of the operation of the prima facie requirement in Britain which gives the greatest room for doubt of the desirability of such a requirement. In Britain the experience of a prima facie requirement in relation to extradition requests which they have received from all other countries apart from Ireland has been that the imposition of this requirement in relation to other European countries has proved to be a substantial technical barrier to extradition.
Many European countries have found that the requirement is difficult, if not impossible, to cope with in practice and the net result is that for a number of European countries Britain has come to be regarded as a place from which it is very difficult to get extradition. In recognition of this situation the British Government have brought forward legislation which is now going through parliament to enable it to dispense with theprima facie requirement in extradition cases. When the legislation is passed it is the intention of the British Government to become a party to the European Convention on Extradition of 1957.
The Government do not favour the introduction of theprima facie requirement in our law because of the strong probability that it would cause expense and delay in extradition proceedings which could result in the failure of legitimate extradition requests. If the prima facie requirement were to operate in a way in which it would provide the same protection that is available in domestic criminal cases for preliminary examination, the prosecuting authority in a foreign jurisdiction would be obliged to prepare a short notice and book of evidence which would comply with Irish rules of evidence. They would also have to be prepared to face the possibility that key witnesses would have to be made available in court to be examined with regard to their own written statements. The amendments here seek to avoid difficulties of that kind providing it would only be documentary evidence that would be produced in a District Court.
I recognise and appreciate that the intention behind the amendments is to avoid undue complications arising out of a crime that might otherwise be associated with aprima facie requirement but we are not satisfied that what is proposed would work in the way it is intended that it would work. I am satisfied it would lead to undue complications and pose decided obstacles to extradition. There is a strong danger that in respect of the terms in which a prima facie requirement would be couched, the reality would be that once the issue of the adequacy of the case against the person sought came justifiable to court such doubts and questions could be raised while the defence of the foreign prosecuting authorities would be forced to produce witnesses in court or run the severe risk of losing the extradition application. My fear is that any variation on the prima facie requirement would involve evidence having to be established in the relevant court proceedings and would, therefore, be likely to result in the failure of legitimate requests. That would be an unacceptable prospect at any time but it would be particularly unacceptable at present when we all want to see to it that the perpetrators of terrorist acts should not be able to treat this jurisdiction as a safe haven.
Senator Robb has his own views but it is necessary for me to make a point with regard to our amendment. The debate on those two sections has been going on for an hour and a half and nothing has happened in the course of the debate to shift the Labour Party's point of view. We are going to call a vote on this and vote against it. There is no point in us quibbling any longer about it. We are committed to the Labour Party standpoint. That is our commitment to the people who vote for us. The Judiciary have certain rights that keep a natural division between them and the Government. Our policy covers the broad aspects of human rights. We could argue here all day, but in the final analysis, the power that is rightly placed in the hands of the Judiciary should stay there. That is the end of the matter. We thought we might have made some progress on that in the course of the debate in the past hour and a half but, quite frankly, we have not done that. I do not give up that easily but I am also a realist; I cannot see any evidence of the Minister coming to meet us on this. It is essential for us to make our position known on this and we will call a vote on the amendment.
Senator Harte has summed up our position. Because of the problems the Minister saw in this section, we put in the provision that for the purposes of this section aprima facie case would be proved by the production of statements and affidavits of witnesses. We knew there would be a problem about bringing witnesses forward and for the purposes of this section we felt sworn affidavits would be sufficient for a prima facie case. It is not a full prima facie requirement. We thought that reasonable. The Minister recognised the safeguards but maintained that there were still problems from his point of view.
Arising from these amendments and from what the Minister has said about issuing instructions in the next couple of days, I share Senator Robinson's concern. It is important that people be aware of these instructions. The Bill does not spell them out although it confers on the Minister the powers to write these instructions. We want to know on what sort of information the Attorney General will work. Will the information available to him vary from case to case? Will the Attorney General be content to read the file in one case, will he want sworn affidavits in another? Will he want an opportunity to cross-examine witnesses and will he consult with anybody? Will the Attorney General consult with the Government, because the Government will be precluded from consulting with the Attorney General? We are worried about a lot of technical areas. We look forward, as do the nation, to knowing this magic formula the Minister is going to publicise, so that we will know whether the Attorney General is now an administrative officer of the Government or is now becoming a quasi-judicial officer. I am not clear in which way it is going to be.
I agree with Senator Jack Harte that we should stick with this amendment. I agree totally with Senator Robinson, that this does not break any new ground, or break any agreements, because the only country involved in general terms, is Britain. It would not affect the European Convention on the Suppression of Terrorism. We are pressing our amendment.
I certainly understand the motivation behind this amendment and the sort of worries it is seeking to allay. Nonetheless, I will not support it. The points made by Senator Ferris are ones which focus in on another section of our work today, that is amendment No. 2 in the name of Senator Philip Hogan and myself which has been disallowed. It is precisely because there is doubt over so many of the questions raised, that this Bill should be referred to the Supreme Court by the President, to see if a final authoratitive judgment can be made on these questions as to what the precise status will be the role which this Bill assigns to the Attorney General.
I am not sure if the points raised by Senators Ferris and Robinson are as real as they have appeared to be in the last ten to 15 minutes of discussion, whether they are more than just legal quibble, and if they are points of real substance. The arguments were quite persuasive as they were being delivered, but I am not sure if, on reflection, they are as substantial as the eloquence of the people in question made them seem to be. I would like to see some clarification in that area.
Essentially, these amendments are basically about the question ofprima facie which has been discussed at great length in both Houses. On the surface, the idea of a prima facie requirement in this context is very attractive. There is, at least, the feeling that the accused or the person whose extradition is being sought is on home territory, is in an environment is a good thing. Although I sup-and in which he or she will be understood and that the very familiarity of this environment is a good thing. Although I suppose one could argue that the inside of a court is not a familiar environment for most people or one that is conducive to any sense of relaxation.
I agree with Senator Ross — which might surprise him — and with the Minister on this point. Theprima facie case would be a major practical obstacle to extradition. It would mean that prosecuting authorities would have to produce the book of evidence founded on their law but which would also have to comply with our law. There is also the problem of key witnesses. All of these arguments have been rehashed over the past week or so.
What I find reassuring in all of this, because I do not think any of us can have a definite 100 per cent guarantee that we are absolutely right in all of this, is that there is a review clause in this legislation. If there is any worry or concern on this matter, either that the law is not working, that the law is in some way being used to protect people who should rightfully be forced to stand up in a court of law to face charges, or where it is felt that there is a case to be answered where people are being overprotected, or if the British courts are not living up to the proper standards, we can have a look at it. In this very difficult issue, where there are arguments on both sides, at least the review clause provides a safeguard so that at the end of one year this can be reviewed in good faith. I have rarely seen legislation going through this House or the other House on which there was so much common ground as to what the objectives should be in all of this. All of these were spelled out and I spelled some of them out in my Second Stage speech this morning. For that reason and with some reluctance we will not be supporting this amendment.
Very briefly as the debate seems to be coming to its conclusion, I would like to emphasise that the amendment which I have put down, as I see it, is a compromise between what the Government have proposed in this Bill and what the Labour Party are suggesting is necessary. It achieves the dual purpose of ensuring as swift and as ready as possible a means of obtaining extradition of the guilty and at the same time it affords protection and safeguards for those who are not guilty. I would again like to emphasise that I support the Government very much in the concept of the review, which Senator Manning has alluded to. The built in clause is important and it is at the stage of review where one would also have an opportunity, presumably through the suggestion by the Taoiseach of formal study arrangements, to look at the system of justice as it operates in other jurisdictions as well in our own.
I would like to thank the Minister for his patience in repeating the points that he had made initially in reply to Senator Ferris, who moved this amendment. I am grateful to him because we are really at a stage now where we are weighing the advantages and disadvantages of this amendment against the proposal for the particular mechanism which the Government are seeking to introduce through the role played by the Attorney General. The Minister very fairly has conceded that this amendment does not provide the full potential ofprima facie with cross examination of witnesses etc. but that it actually reduces to a carefully contained minimum the kind of documentary evidence that would be before the District Court.
The Minister in saying that thisprima facie rule application would not be workable and would be impossible has done so on the basis of the experience in other countries and on the basis of the risk that this would lead to litigation and that the upshot would be that persons who should be extradited would not be. Everybody in this House would share that concern. We are concerned that we do not devise legislation that defeats the objectives, that we have carefully created the right balance. Now, it is not possible really, partly for reasons the Minister himself has given, to compare in a facile way the practice of other countries. As the Minister has said, in Denmark and Norway it is a ministerial executive function and it operates in one way, and in Britain it is more of a prima facie rule than is proposed in this amendment.
Let us look at what is proposed in this amendment. I have been examining very carefully what the amendment proposes would be submitted to a District Court and it seems that a very substantial component of that would have to be provided to the Attorney General for him to form the opinion which is required of him for the purposes of the Government's approach. He would have to have an opinion that the prosecution was based on satisfactory evidence and that there was the existence of sufficient evidence. That is not an unfettered discretion, as the Minister is well aware. That is a statutory discretion, so the existence of sufficient evidence must be there. Also the Minister would not be in a position to take into account extraneous considerations. Is it not the case that it is likely that you would have justiciable controversies in relation to the manner in which the Attorney General would exercise his discretions and functions under that section?
In other words by having the Government proposal to confer on the Attorney General this new function of vetting, we would have a very similar type of vetting to a District Court vetting which is what the Labour Party are providing for. I find it very difficult to see how the Minister can reject the Labour Party amendment saying we cannot have that because it would undermine the whole system of extradition, and the Government support for their own amendment as being necessary and a minimum safeguard to the individual's liberty. It seems that in real terms the procedural and pragmatic steps that would be taken in relation to each are somewhat similar. The District Court procedure would be open. What the Attorney General would do would certainly be more secretive though we are very happy to know that the Minister is going to make known his instructions as to the sufficiency of evidence, and so on, in relation to section 2.
We are back to weighing up. Do we want a District Court to perform a minimal vetting procedure as is proposed by the Labour Party, or do we want the Attorney General to perform a very analogous type role which as I have already said — and I will come back to this — I have some doubts about as to its constitutionality. At least by providing that it would be the District Court, that would remove the constitutional worry and it is framed in such a way that it should not lead on to the genuine difficulty pointed out by the Minister of preventing the extradition process from working properly.
I believe the lines are well and truly drawn in this debate. I do not intend to reopen the debate but I wish to seek clarification from the Minister. I stated in my Second Stage speech that I considered the safeguard of the Attorney General's involvement as being useless because of the absence of a referral process. In his reply to the Second Stage debate the Minister stated that all extradition warrants would now be referred to the Attorney General. Am I correct in thinking that he said this evening that warrants would now also be referred to himself? That is the point I am seeking clarification on.
As of right now all warrants are referred to me. That happens as of now. Again I say quite categorically that, when the warrants come, they will be directed to the Attorney General who will decide what to do as far as his function is defined under section 44A and B.
Precisely on that issue of warrants now being referred to the Minister, has the Minister for Justice ever refused to endorse a warrant since the law was introduced?
The question is: "That a new section be there inserted." On that question a division has been challenged. Will those Senators calling for a division please rise in their places?
Five or more Senators stood.
- Ferris, Michael.
- Harte, John.
- O'Shea, Brian.
- Robb, John D. A.
- Robinson, Mary T. W.
- Ryan, Brendan.
- Byrne, Seán.
- Cassidy, Donie.
- Cullimore, Séamus.
- Fitzsimons, Jack.
- Hussey, Thomas.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Mick.
- McEllistrim, Tom.
- McGowan, Patrick.
- Fallon, Seán.
- Farrell, Willie.
- Fitzgerald, Tom.
- McKenna, Tony.
- Mulroy, Jimmy.
- O'Callaghan, Vivian.
- O Conchubhair, Nioclás.
- Ross, Shane P. N.
- Ryan, William.
- Wallace, Mary.
I move amendment No. 3:
In page 2, before section 2, to insert the following new section:
"2.—Part III of the Principal Act is hereby amended by the insertion of the following section after section 44:
`44A.—(1) Where a request is received for the extradition of a person under Part III of the Principal Act the requesting country shall be required to provide before the District Court, evidence as to the commission by the person claimed of the offence for which extradition is sought, and extradition shall not be granted nor shall an order be made under section 47 (1) of the Principal Act unless such evidence produced establishes aprima facie case of involvement in the offence alleged.
(2) Where the request for extradition relates to a convicted person the production before the District Court of the original or an authenticated copy of the judgment or conviction shall be deemed to be sufficientprima facie evidence as to the commission by the person claimed of the offence for which extradition is sought.
(3) Where the request for extradition relates to a person who has not been convicted, the production before the District Court of a statement of facts by way of affidavit or statutory declaration, exhibiting statements of witnesses on affidavit or statutory declaration shall be deemed to be a sufficientprima facie case for the purposes of this section if the District Court determines that such affidavit or statutory declaration and the sworn or declared statements of witnesses exhibited therein set forth reasonable grounds for believing that the offence for which extradition is sought has been committed and that the person sought committed it.'.”.
Is that amendment being pressed?
The question is: "That the new section be there inserted". On that question a division has been challenged. Will those Senators calling for a division please rise in their places?
Senators Ferris, Harte, O'Shea, Robinson and B. Ryan stood.
- Ferris, Michael.
- Harte, John.
- O'Shea, Brian.
- Robinson, Mary T.W.
- Ryan, Brendan.
- Byrne, Seán.
- Cassidy, Donie.
- Cullimore, Séamus.
- Fallon, Seán.
- Farrell, Willie.
- Fitzgerald, Tom.
- Fitzsimons, Jack.
- Hussey, Thomas.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Mick.
- McEllistrim, Tom.
- McGowan, Patrick.
- McKenna, Tony.
- Mulroy, Jimmy.
- O'Callaghan, Vivian.
- Ó Conchubhair, Nioclás.
- Ross, Shane P. N.
- Ryan, William.
- Wallace, Mary.
I move amendment No. 3a:
In page 2, line 15, to delete "Attorney General" and substitute "Director of Public Prosecutions".
I should like to apologise to the Minister and the House for the lateness of this amendment. We had only half an hour between Second Stage and Committee Stage and I put it in at that stage. It is very brief. Its drafting is on the understanding that, when the Minister accepts the amendment on Report Stage, we will adjust the rest of the Bill to delete the Attorney General and substitute therefor the Director of Public Prosecutions. I was not aware that this type of amendment had been attempted in the Dáil. Therefore I assume the Minister will have a readymade reply. I should say that it is not on constitutional grounds I am attempting to substitute the Director of Public Prosecutions for the Attorney General. I wish to do it simply because, first of all, the Attorney General is in a particularly sensitive positionvis-à-vis the Government, the Cabinet and the Constitution. The Attorney General is appointed, as I said in my Second Stage speech, by the Taoiseach of the day. He is a member of the Government at the whim of the Taoiseach of the day. As such, the Attorney General is a political appointee with very obvious political sympathies. Every Attorney General, in my memory, has got and has subscribed to very obvious party political sympathies. This is why I find it very difficult to take the position of the Attorney General in this Bill simply because the Attorney General must be seen, when he is given wide discretionary powers of this sort, to be above politics. Traditionally the Attorney General has not been seen as such. The Attorneys General here have been appointed by political parties, have gone out of office with political parties and have, by nature had political loyalties. While one cannot question the integrity of the present or past Attorneys General on any particular issue it is possible — and it is a danger — that it will be seen in the future, when the Attorney General is exercising these very wide discretionary powers, that he will be criticised and his motivation will be questioned.
It is bad for the Office of Attorney General that he should be vulnerable and exposed to such criticisms. It is absolutely inevitable that, sooner or later, a decision will be made by the Attorney General not to extradite someone; otherwise these powers would not be given to him, they would be absolutely unnecessary, and then there will be a hue and cry from newspapers, the media, political parties and others, here and abroad, giving reasons which are purely political for that decision. The Government have exposed themselves to this danger, have not foreseen the difficulties which will arise as a result of this and the fact that as a result the whole extradition procedure may be discredited.
On the question of who is substituted for the Attorney General I contend it does not matter much whether it be the Director of Public Prosecutions or a High Court judge. The advantages of the Director of Public Prosecutions are absolutely manifest. The Director of Public Prosecutions is appointed permanently. He is far removed from political life, is seen to be impartial and above politics and not removable at the whim of the Taoiseach or the Cabinet. The Director of Public Prosecutions would not be subject to the sort of political pressure to which the Attorney General will as a result of the provisions of this Bill. The communications forbidden in section 5 do not have to be explicit. I believe that the Attorney General even if nothing is communicated to him on this as a result of pressure, even if no one conveys to him a message about a particular and specific case will be subject to silent pressures which he will feel by virtue of the reason and the way he holds that Office.
I would ask the Minister to give me a clear reason the Attorney General is preferable in this case to someone who quite obviously holds a less politicised office than he does.
I suppose that if the Attorney General were a Member of this House — and I suppose constitutionally there is nothing to prevent the Attorney General being a Member of this House — he would support this amendment because the role in which this will cast him, in the words of a Member of the other House, will be oppressive and invidious. He certainly will be called upon to take some very difficult decisions and to do so in a way in which he will be accountable.
I agree with this amendment but not with the same degree of commitment and strength I felt when the Bill was first published, when a similar amendment was proposed in the other House. There are a number of reasons in its favour. One is the constitutional uncertainty which surrounds the role of the Attorney General under the provisions of the Bill. In the other House Deputy John Kelly who could probably be regarded as the foremost constitutional expert — I say out of deference to Senator Robinson — in the other House took a view which was that he did not think that the role of the Attorney General was unconstitutional as framed in this Bill. Certainly his is a view to which we would all give a great deal of attention and respect. Nonetheless, there is this niggling doubt that unless and until the Supreme Court or the High Court at some stage either through reference of the Bill to them by the President or through subsequent challenge, until the question of the Attorney General and the constitutional position of the Attorney General is cleared up those doubts will remain.
As to a preference between the Attorney General and the Director of Public Prosecutions, we start off from the position that both people are people of the highest probity and integrity and each one would, if given the responsibility, carry it out as he or she saw it in its proper way under the law. The decision to remove the prosecuting role from the Attorney General to the DPP back in the sixties was made in part because there were occasional doubts, suspicions or accusations that the Attorney General might be subject to some sort of political pressure or motivation in deciding what cases would be prosecuted, what would not, and in what form the prosecution would go ahead. That suspicion or possibility was still there when this Bill was published. I believe, however, that the safeguard clauses built into this Bill in the other House to a great extend insulate the Attorney General either from the charges or the possibility of undue influence being brought to bear on him or representations being made to him in making up his mind as to whether or not the warrant should be implemented. The Bill has that safeguard built in, one of the improvements made to the Bill in the other House.
I should also say that we have seen in recent years that the DPP and his office are not immune to public criticism. In a range of cases we have seen the DPP take a decision either to prosecute or not to prosecute, either to mitigate the offence for which the prosecution was taken, or we have seen cases where perhaps greater severity in the charges appeared than people might have thought reasonable. What we had in all of these cases were sections of the public either taking issue with the DPP or, in a number of cases, expressing outrage at the decision of the DPP. We saw this in the McArthur case, the Flynn case and in other cases recently where a decision of the DPP did not find general agreement, where in fact, some fairly extreme things were said about the DPP and motives were ascribed to him which certainly would not have any foundation in reality.
We have had some strange decisions coming from the benches, probably at all levels of the courts in different ways. Again in recent times especially, these decisions have been followed by public outcry, on occasions questioning of the sanity of the judges concerned, certainly questioning whether or not they are in touch with reality. We have had all of this. We have had outcry and public marches about decisions taken or handed down from the benches. If it is judges, the human factor is involved there and is certainly open to all sorts of public charges and, indeed, opprobium. If it is the DPP, the human factor is involved there, and it is a question of judgment. The Attorney General equally will have to make up his or her mind as to whether or not the warrants should be implements. No matter what happens on this we are back to the human factor.
On balance I prefer the role of the DPP in all of this because the Attorney General is a political figure who will sit in on Cabinet meetings who, in the very nature of things sups with politicians, talks with politicians, will have a certain political preference and may even, on occasion, have spoken at political meetings for a particular party and may even have the membership card of a political party somewhere in his wallet. The Attorney General is a political animal. This is not detracting from the tributes which are being paid to Attorneys General past and present for their integrity and the high performance of their office over the years. But he is by nature, by definition, by appointment and by conviction a political animal.
The Director of Public Prosecutions has been politically neutered if indeed he or she ever had any strong political affiliations. Of course we have only had a he, and I do not want to get into veterinary analogies too much here because I find myself getting somewhat lost as to what happens before somebody is neutered. The House will accept the analogy that I have got myself stuck into at the moment. The Director of Public Prosecutions is not a political figure. He is not appointed for political reasons. Generally he is insulated from the company of politicians. He does not sup with politicians, does not think as politicians think and, to a great extent, is insolated from the normal political pressures which affect all of us who have the privilege to service in public life. For that reason, on balance, I find the Director of Public Prosecutions probably a more suitable vehicle through which these decisions could be taken.
In conclusion, if we agreed today to substitute the director of Public Prosecutions for the Attorney General the same questions would be asked, the same suspicions would exist; there would be the same degree of misrepresentation of virtually every decision he would make.
I have little to add to that. The Attorney General could well be a Member of either House of the Oireachtas which makes the position even more complicated and confusing. As I said earlier, I have no great taste for this Bill. But it seems to me that, if we are going to introduce powers like this, there is a lot more logic in the case for having an office which is deliberately, by law, detached from the political process handle the adjudication in these matters. There is a corpus of information and a consistency there which is independent of changes in the political scene which would seem to me to dictate, logically speaking that a more rational and a more logical place to leave these sort of powers would be with the Director of Public Prosecutions. Therefore I support Senator Ross' attempt to at least improve the Bill.
I also support this amendment on balance as being better than having the Attorney General perform the particular function. I made my views fairly clear on that on Second Stage. It would not, of course, in any way resolve the potential constitutional problem. That just is not relevant to this amendment. Substituting the DPP for the Attorney General would still leave the question of an administrative officer performing a potentially quasi-judicial function.
It is really a question of weighing the merits of the two offices. I do not intend to be very long on this because, apart from anything else, the Bill as it stands makes provision for the DPP to perform this function if the Attorney General is ill or unable to do it. There is nothing about the function that means that it has to be the Attorney General. It is quite clear from section 5 of the Bill that the Attorney General may direct the Director of Public Prosecutions or an officer, being either a barrister or solicitor, of the Attorney General designated by him to perform his functions under the Act. As I said on Second Stage, I would only be convinced that the Attorney General was the right person if the Minister could convince me that only the Attorney General could do it.
It is patently obvious from the terms of the Bill that under the present Bill the DPP can do it. The arguments seem so overwhelmingly strong in favour of substituting a permanent independent office for a political adviser to a Government who may be a Member of the Oireachtas, a member of a political party and subject to the necessary persona of being identified with a particular Government at a particular time. This is no reflection, as Senator Manning has said, on the approach and discharge of his duties of any Attorney General in some nature of his office. Therefore, it is very difficult to see why the Government have clung so closely to ensuring that the role is performed by the Attorney General. As I understand it, the Taoiseach made it clear this was a resigning issue, that it had to be the Attorney General, that it could not be anyone else, even though the Bill provides that the DPP could do it. It is slightly curious.
Perhaps if the DPP had been conceived of as being the front person to put forward, that might be well what the Bill would have contained but, having been hooked on the Attorney General, it seems as though the Government got rooted on that and believe it to be an issue of principle. The kinds of discretions which the Attorney General will exercise here are very sensitive. They will be a matter of speculation and will leave the Attorney General vulnerable to that speculation. I do not think that is good for our institutions.
The Minister, in his speech introducing this Bill to the House, gave a number of reasons why the Attorney General was preferred. He made it clear that it was a preference rather than any necessary discharge of a function by the Attorney General. He said, first, that the Government hold the view for a number of reasons that the new function which will be conferred on the Attorney General is consistent with and would complement his existing duties in the extradition area. The Minister pointed out that the Attorney General is responsible for representation of the State in extradition cases and that he also has a role in administrative arrangements and that he advises the Minister for Justice. That is all the more reason why he should not be involved in this role. They are arguments the other way. If he has a role in representing Ireland in relation to extradition, if he has a role in advising the Minister on the machinery, then he should not be an interested party. He should not be somebody who is sensitively involved in a key role in issuing directions under the Bill. He should be able to advise the Minister from a detached perspective because of that.
The second set of reasons why the Government, according to the Minister in introducing the Bill, wanted it to be the Attorney General was because of functions which he performs at present under the Criminal Law (Jurisdiction) Act, the Fisheries (Amendment) Act, the Geneva Convention Act, the Official Secrets Act, the Genocide Act and by virtue of section 3 (5) of the Prosecution of Offences Act of 1974. Again, prior to the establishment of the Office of the DPP by the Prosecution of Offences Act, 1974, the Attorney General performed a wider range of functions. It was precisely because of the preceived need at that time and the view of the Oireachtas that it would be preferable to have the prosecutions on indictment brought by an independent permanent officer and his staff that the Prosecution of Offences Act was introduced. Under that Act it is the DPP now, for example, who directs as to whether a person charged with a nonscheduled offence would be tried in the Central Criminal Court, or in relation to a scheduled offence whether it would be taken out of trial in the Special Criminal Court. He sends people forward for trial in the Special Criminal Court. The position is that it is the major role of the DPP, that he and his staff have a major expertise and a total independence and detachment in the matter.
As I pointed out on Second Stage —and other Members of the House have also referred to it — the amendment introduced in the Dáil to section 4 of prohibiting communications to the Attorney General in relation to the exercise of his function or, indeed, the DPP or any other officer in relation to their exercising it, goes some way towards allaying some fears. We are not just talking about the actual incidence of possible communications to an Attorney General, or indeed any other person exercising the function, to influence them and seek to ensure that they exercise their discretion in a particular way. We are talking also about perceptions of an office and a role. It is the perception of a role of this kind being played by the chief legal adviser to the Government who is an appointee of the Government, who holds office at the will and pleasure of the Government and who, as it has been pointed out, may, as holder of that office be a Member of the Oireachtas, as indeed was a fairly recent Attorney General a Member of the Dáil.
It is not the right choice and it is not a necessary one. It is a choice that was exercised. It has perhaps added to the concern about the nature of the check that has been placed. It simply puts the office of the Attorney General in a more vulnerable situation and I do not think that is welcome. Therefore I would prefer, although it does not get over the constitutional argument, to see the DPP substituted and there cannot be any reason why this amendment cannot be carried, because he is already fulfilling that role under section 5 of the Bill when directed by the Attorney General to do so.
In opening the debate on this Bill in the House on Friday last, I dealt with the reasons for the Government remaining firmly of the view that the Attorney General was the appropriate person to perform the new functions which arise under section 2 of the Bill. In my reply, I dealt with the reasons for the functions of the DPP being limited to acting for the Attorney General in his absence and at his request under section 5 of the Bill. The considerations which weighed with the Government in deciding to place responsibility on the Attorney General were that representation of the State in extradition cases rests with the Attorney General. He has an important role in relation to the vetting of warrants before those warrants are endorsed by the commissioner. Under arrangements which are in place for this purpose, the Attorney General is responsible for vetting extradition applications from Britain and Northern Ireland as to form and content of the warrants and supporting documentation to ensure compliance with Irish law. The purpose of these arrangements is to eliminate, as far as possible, the opportunity for requests being refused on technical grounds. Similarly, the Attorney General advises me, as Minister for Justice, in much the same matters in relation to requests which are received from countries with whom we have extradition agreements under Part II of the 1965 Act.
Another consideration is that in a number of statutes where prosecutions involve an international dimension the decision to institute proceedings is reserved to the Attorney General. There is an analogy which can be drawn between the functions conferred by section 2 of the Bill and the practice to reserve to the Attorney General the final say in decisions to institute criminal prosecutions in the case of these offences. In particular, I would like to draw the attention of the Senators to section 18 (2) of the Fisheries (Amendment) Act of 1978 under which the Attorney General continues to exercise prosecution powers in relation to certain fisheries offences — these offences include, for example, offences under section 22 of the Fisheries (Consolidation) Act of 1959 which governs restrictions in foreign sea fishing boats entering exclusive fishery limits of the State; section 20 (2) of the Criminal Law (Jurisdiction) Act of 1976 under which the consent of the Attorney General is required for prosecutions under sections 2 and 3 of that Act — the offences in question relate to acts done in Northern Ireland; section 3 (5) of the Prosecution of Offences Act of 1974 under which the Attorney General's consent is also required for prosecutions under section 3 of the Geneva Convention Act which deals with war crimes; the Official Secrets Act of 1963 or the Genocide Act of 1973, these offences which of their nature may well have an international dimension.
By contrast, the functions of the Director of Public Prosecutions relate almost exclusively to the prosecution of offences within the jurisdiction. The Director of Public Prosecutions has no function in relation to extradition at present. The Bill allows the possibility of the DPP exercising functions under section 2 only in very limited and exceptional circumstances. I would also point to the non-statutory arrangements on the sufficiency of evidence in which the previous Government were proposing to participate. These arrangements would involve the British Attorney General providing, through the diplomatic channel, a certificate to our Attorney General. The arrangement was to be on an Attorney General to Attorney General basis. The Attorney General in Britain is the law officer who would have ultimate responsibility on their side for arrangements there might be in the prosecution service to ensure that every extradition case is scrutinised for sufficiency in evidence and the appropriate law officer here to be in communication with the British Attorney General on this matter and to be given a statutory function in regard to it is clearly the Attorney General and not the Director of Public Prosecutions.
A number of Senators raised the position of the Attorney General in the wider context. I dealt with this point extensively in my reply to the Second Stage debate in the Dáil and I would like to repeat what I said there for the benefit of the Senators who raised this point:
It has always been accepted that the Attorney General is independent in the exercise of his functions. The leading work in the office of the Attorney General in Ireland cites the following statement with approval:
In the discharge of his legal and discretionary duties the Attorney General is completely divorced from party political considerations and from any kind of political control.
The Minister for Social Welfare has already referred in the course of this debate to the statement made by Mr. Justice Kingsmill Moore in the case of McLoughlinv. the Minister for Social Welfare that:
The Attorney General is in no way the servant of the Government but is put into an independent position. He is a great officer of State, with grave responsibilities of a quasi-judicial as well as of an executive nature.
Some Deputies referred to the fact that the Attorney General is removable from office at will as indicating that he would be subject to influence and pressure in the discharge of his functions under the Bill but that is not the way Mr. Justice Kingsmill Moore saw the matter. He said and I quote:
The provisions for his voluntary or forced resignation seem to recognise that it may be his business to adopt a line antagonistic to the Government, and such a difference of opinion has to be resolved by his ceasing to hold the post ... but while he is in the office he holds, and if he is to do his duty and discharge his responsibilities, he must hold an independent position. He is specifically excluded from being a member of the Government, which again underlines his special position.
The kind of suggestions which we have heard about Attorneys General being subject to political pressure in relation to the exercise of their functions under this Bill are unworthy, quite unwarranted and out of keeping with the constitutional position. In this context, Deputies will have noted the remarks of Deputy John Kelly on the radio last Friday week on the question of the independence of the Attorney General. He said and I quote:
An Attorney General is not there to take orders on a day to day basis from the Government and I am not aware that any Attorney General ever has done so. He is an officer whose position is specified in the Constitution and he always has behaved as though he is conscious of that status. I don't think you need be afraid that if this Bill becomes law the Attorney General is going to be exerting his new statutory powers merely to accommodate himself to a shifting political wind. I do not think that is going to happen.
Deputy Kelly made similar statements in the Dail during the course of the debate. I cannot accept Senator Robinson's point that the Attorney General's existing functions in relation to extradition cases preclude or should preclude the additional statutory functions which are being conferred on the Attorney General by section 2 of this Bill. As I have said, the new functions are consistent with and complement his existing duties in this field.
The functions that were reserved to the Attorney General under the Prosecution of Offences Act were reserved because of their international dimension. The function under the Bill has a similar international dimension and that is one of the reasons it is appropriate for the Attorney General and not for the Director of Public Prosecutions. I might say also to Senator Ross who mentioned that he was afraid that the office of the Attorney General would be politicised if such an arrangement were to be enshrined in the legislation, that the particular functions which are now being given specifically to the Attorney General in this area are similar to the ones which were conferred on the Minister for Justice under the 1965 Act. I do not think anyone has ever pointed a finger at any Minister for Justice who had that power since 1965.
I thank the Minister for his reply which was predictable. What worries me is that he said the Attorney General should be divorced from party political considerations. That is absolutely correct in theory. That is exactly how he ought to behave and that is how his office requires him to behave but the practice does not tally with that statement. As I have already said the Attorney General has consistently had party political affiliations in this State. From the day he becomes Attorney General he does not shed those party political affiliations and he does not cease to have those political sympathies. It should be noted that the Attorney General will automatically be influenced by party political considerations because, as Senator Manning said, he mixes with party politicians and because of the fact his office is in Government Buildings. He will be influenced by what happens in Government Buildings and by what happens in the Taoiseach's office and in other offices. Whether or not he is a member of the House the Attorney General has rights in this House, which is a strange right. Therefore, the Attorney General has a quasi-political function which has evolved into a quasi-political role and I regret this.
What the Minister did not say is that the Attorney General by exercising this power will find himself in a highly invidious situation in that he will be exercising power which will be the subject of very sensitive public criticism. That is why the Director of Public Prosecutions would have been a far more sensible appointee because he could not have the same charges of political bias levelled against him which inevitably will be levelled, probably wrongly, against the Attorney General and we should be sensitive to those charges.
Is the amendment withdrawn?
I am putting the question: "That the words proposed to be deleted stand".
The question is, "That the words proposed to be deleted stand". Will those Senators claiming a division please rise in their places?
Five or more Senators stood.
- Byrne, Seán.
- Cassidy, Donie.
- Cullimore, Séamus.
- de Buitléar, Éamon.
- Fallon, Seán.
- Farrell, Willie.
- Ferris, Michael.
- Fitzgerald, Tom.
- Fitzsimons, Jack.
- Harte, John.
- Hussey, Thomas.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Mick.
- McEllistrim, Tom.
- McGowan, Patrick.
- McKenna, Tony.
- Mooney, Paschal.
- Mulroy, Jimmy.
- O'Callaghan, Vivian.
- Ó Conchubhair, Nioclás.
- Robb, John D. A.
- Ryan, William.
- Wallace, Mary.
- Daly, Jack.
- Hogan, Philip.
- Kelleher, Peter.
- Loughrey, Joachim.
- McDonald, Charlie.
- McMahon, Larry.
- Manning, Maurice.
- Reynolds, Gerry.
- Robinson, Mary T. W.
- Ross, Shane P. N.
- Ryan, Brendan.
We come to amendment No. 4. Amendments Nos. 5, 6 and 7 are related to amendment No. 4. These amendments may be discussed together.
I move amendment No. 4:
In page 2, subsection (1) (a), line 15, after "directs", to insert "all such warrants shall be forwarded to the Attorney General in the first instance".
I put down amendments Nos. 4, 5, 6 and 7 because the Bill had passed second Stage and I was exploring the possible methods of minimising what I regard as the very serious negative effects this Bill will have on the preceptions of this country, our relationship with the United Kingdom and, in particular, the perceptions of the Nationalist community in Northern Ireland on the relationship between this country and the United Kingdom administration of justice.
The Minister in his reply on Second Stage assured us that all warrants would have to be forwarded to the Attorney General so perhaps amendment No. 4 is effectively covered by that. Amendment No. 5 proposes that the evidence should exist at the date the Attorney General forms an opinion. This attempts to copperfasten the assurance that is contained in the Bill as it currently stands, that there must be in the eyes of the Attorney General a satisfaction that evidence exists. Of course, I have great hopes the Minister will accept some of my amendments but if he does not I want to discuss some of them when I deal with the section. I might not have to do that because the Minister is in amiable humour this afternoon and he might yet come to his senses and revert to the position he and his party colleagues held in the days when this issue was being first discussed 12 months ago.
Do you want to bet?
I would not bet with Senator Ross, although perhaps I should because on the evidence of the Stock Exchange recently he might not be a good gambler any more.
I am not responsible for that.
The Senator's choice of winners has not been very good in recent times.
I have no shares.
He has no friends left, either.
Perhaps we can get back to the amendment.
Perhaps I can revise my opinion because if Senator Ross has no shares left it shows he is a very good judge of when to get rid of them. The central amendment of my four amendments is amendment No. 6. Amendment No. 6 is an attempt to ensure that persons would only be extradited to Northern Ireland under circumstances where the Attorney General felt there was good and sufficient reason why the person named in the warrant should not be prosecuted under or by virtue of the Criminal Law (Jurisdiction) Act, 1976. In other words, extradition would be under unusual and exceptional circumstances where there was a good reason not to proceed under the Criminal Law (Jurisdiction) Act. In order to make clear what the intent of the amendment is about I have added the sentence:
It is hereby declared that good and sufficient reason shall not include the fact that evidence on commission may be required to be taken in respect of the said prosecution or that any witness or witnesses reside outside the jurisdiction.
In other words, good and sufficient reason for not proceeding under the Criminal Law (Jurisdiction) Act would not be related to the procedures which are specified in the Criminal Law (Jurisdiction) Act. I make it quite clear that what I am endeavouring to do is to ensure that so far as possible people who are being dealt with for extradition to Northern Ireland should not be compelled to be tried in a court in Northern Ireland unless there are overwhelming reasons and they should be allowed the choice, which is the essence of the intent of the Criminal Law (Jurisdiction) Act, to be tried either in this jurisdiction or in Northern Ireland.
It is important to understand where the Criminal Law (Jurisdiction) Act came from. It was an attempt, as part of the Sunningdale Agreement, to balance the contending perceptions of the Irish and United Kingdom Governments about the administration of justice in these islands. The perception in Britain was, quite wrongly as we all know, that this country was somehow a haven for people of violence. I listed a considerable number of areas where, in the issue of the response to violence, this country was probably far more draconian than the United Kingdom Parliament would ever tolerate from their own Government. Nevertheless, that was the perception.
The other perception, quite valid in my opinion, is that the system of justice in Northern Ireland is inherently defective and that in the United Kingdom there is a more than valid argument that an Irish person is not likely to receive a fair trial given that the person may well be prosecuted in an atmosphere of high emotion for an issue in which Irish people are, in the media at least already tried and perhaps convicted. I want to repeat that anti-Irish racism in terms of Irish jokes and do so on, seems to be tolerated in the United Kinddom in a way that other forms of racism would not be tolerated, and quite rightly so, if they were directd against the black or the Jewish community. Therefore, given the tolerance about anti-Irish attitudes and anti-Irish bigotry, I do not think that one can presume that Irish people will be tried fairly in the United Kingdom. It is not necessarily a universally held perception and it is most definitely not a British perception but it is an Irish perception.
It was in an endeavour to reach a satisfactory accommodation to those conflicting perceptions that the Criminal Law (Jurisdiction) Act was brought into being. The Criminal Law (Jurisdiction) Act simply endeavours to allow people who commit offences in Northern Ireland to be tried in this jurisdiction if they so wish. That does not seem to be an unreasonable compromise. As I said already on Second Stage debate, the extraordinary thing about this is that people who would come to trial in this jurisdiction under the Criminal Law (Jurisdiction) Act would receive equally heavy penalties and less remission than they would in a prison in Northern Ireland. Therefore, there is no question of softness and of people getting off lightly. At the risk of provoking the Minister—and he has been very mild all day—— I think there is a good case to be made that the physical conditions of prisons in Northern Ireland are perhaps better than they are in this country. The Minister disagrees with me but we will not fall out over it. If he wishes to give me the evidence, I will listen to him. I suspect that for those who end up in Portlaoise——
I will give you a fortnight to experience it.
I suspect that that day is coming. Deputy Tony Gregory has been there and I will have to catch up on him shortly. There is considerable evidence that the physical, recreational and other facilities in a prison like Long Kesh, whatever about the quality of administration, are better than the conditions in Portlaoise prison. I do not for one second want to claim that the fact that Portlaoise prison is overcrowded is entirely the fault of the Government. Those who are there by and large deserve to be there and I have no particular axe to grind on their behalf.
It has very little to do with the amendments.
It has a considerable amount to do with the amendment and its relationship with the Criminal Law (Jurisdiction) Act and the operation of that Act. Of course, a Leas-Chathaoirligh, I would never argue with your ruling and, therefore, I will confine myself to the amendment.
The Criminal Law (Jurisdiction) Act was instituted as a compromise and like all compromises it is not entirely satisfactory to everybody. I do not believe there is any real evidence as of yet that it is unworkable or that it is not sustainable. Like all compromises it is more complicated than any single solution; it makes life difficult for both parties to it and it does not represent a clear-cut victory for either side. I would have thought that that sort of compromise and the absence of a clear-cut victory for either side represented the essence of what we are trying to achieve in these islands which is the reconciliation of different perceptions and understandings of history, politics and religion.
This is why the Criminal Law (Jurisdiction) Act is complicated and difficult and not as simple, neat and final as extradition. However, the fact that it is complicated and difficult does not mean it is unacceptable. If law was to be unacceptable because it was complicated and difficult we would have no companies or tax legislation; we would have many areas where we would not dream to legislate if its complexity was to dictate against it.
Given that the Minister has said that, effectively, we are dealing with extradition between this country and either Northern Ireland or the remainder of the United Kingdom and given that, therefore, we are told that there will be fairly frequent demands for extradition because we are led to believe that this country somehow is a place where people go to escape justice—I do not believe it to be the case — there should be a capacity to develop a body of expertise within the law enforcement agencies of this State, and those in Northern Ireland and the United Kingdom, to ensure that the procedures of the Criminal Law (Jurisdiction) Act can operate quickly, efficiently and expeditiously without the apparent loopholes and errors that were found in previous cases. Those errors resulted in some people having appeals upheld in higher courts.
If we are simply trying to ensure that there are no hiding places for those who commit serious acts of violence or related activities, if we are trying to ensure that those people are brought to justice, tried and, if found guilty, sentenced, the Criminal Law (Jurisdiction) Act is the procedure. It was agreed 14 years ago but was never tried properly. That begs the question, why it has not been tried? In my view the reason is that the authorities in Northern Ireland, and the United Kingdom, resent the fact that they have to understand Irish law, have to prepare a case and do a number of other things. What they are saying is that they will not operate that law, they will either have extradition or not have anything at all.
As citizens of a sovereign independent State with a history of conflicting perceptions and conflict between ourselves and the United Kingdom we are entitled to have our perceptions understood. Indeed, until our perceptions are understood fully in the UK there can be no progress in relations between the two jurisdictions.
The Criminal Law (Jurisdiction) Act simply demands of the UK authorities that they understand our perceptions, our laws and how they differ from theirs. It is offensive to find even an allegedly responsible section of the British media thinking there is something suspect in the failure to implement warrants for extradition under existing law simply because they believe that the District Court is too fussy about technicalities. The law is essentially a whole mass of technicalities. Similarly the Criminal Law (Jurisdiction) Act is a complex but workable piece of legislation which will achieve all our objectives, ensure that those who commit awful offences are brought to justice, and, if found guilty, sent to prison. It is a workable alternative to extradition but it has not been tried. My amendment does not preclude the possibility of extradition if for one reason or another the Criminal Law (Jurisdiction) Act is not appropriate. My amendment insists, in the absence of good and sufficient reason, that the Criminal Law (Jurisdiction) Act should continue.
While I do not wish to be too pessimistic I expect the Minister will not accept my amendment and on that basis I should like to ask him what the Government intend to do with the Criminal Law (Jurisdiction) Act. Will it be allowed sit on the Statute Book unenforced with no relevance, no application or will it be repealed? There is something peculiar about superfluous legislation not being put into effect. We will have the Criminal Law (Jurisdiction) Act and the legislation dealing with the National Social Service Board not being implemented. That is a rather peculiar legislation environment in which to exist. I suggest to the Minister that a more acceptable approach to the problems we are dealing with in this legislation, and a more acceptable approach for members of the Minister's party, given the intensity of the feelings expressed some weeks ago, would be to ensure that the Criminal Law (Jurisdiction) Act becomes a matter of routine which would be operated frequently and in such a way that people will understand it. It should become a matter of routine practice.
I will be moving amendment No. 6. My amendment No. 7 seeks to ensure that "information" as referred to in section 44B shall include "evidence".
I should like to congratulate my colleague on the ingenuity of his amendments which, in effect, if passed will negative extradition and the European Convention on the Suppression of Terrorism. The Criminal Law (Jurisdiction) Act was, as Senator Ryan said, a compromise between the two Governments. Four British and four Irish judges were asked to produce a solution to the very worrying problem of cross-Border crimes and it is an open secret that the British judges wanted extradition while the Irish judges did not. As a result they emerged with this highly ingenious Act for trying offenders in each other's territory. In theory it was a quite brilliant idea. It appeared that the Irish Government could get over the very real political difficulties that extradition posed for them and that the British Government would be able to bring IRA terrorists to justice in the Republic of Ireland. However, that has not been the case and we are all aware of that. In some ways the wheel has turned full circle because the Fianna Fáil Party condemned that Act in 1976 as extradition by the back door but now they are introducing extradition in its place. I should like to know how many prosecutions and convictions there have been under the Criminal Law (Jurisdiction) Act. In my view there have been very few such convictions in the last 11 years.
The reason there have been so few convictions is because the Act which in theory was quite brilliant and ingenious in practice has not worked. It has not worked for several reasons. There may be a reluctance on behalf of the Northern Ireland and British authorities, as Senator Ryan said, to work that Act because they believe it is an impractical, dishonest way round the problem of extradition. There have been continuous problems about witnesses being unwilling to travel and about witnesses being frightened to give evidence in these courts. Senator Ryan referred to "good and sufficient reason" but he went on to rule out what would be good and sufficient reasons. The effect of his amendment would be to try to work an unworkable Act. There is no doubt that the bona fides of those who support that Act should not be questioned but in practice the amendment will negative extradition, will prove a total obstruction to it and make it impractical. The evidence in regard to that Act is that it does not work and it would be wrong to put it forward as a solution or another smokescreen in the extradition debate.
I have already touched on the reasons I consider such a provision unnecessary in my reply to the Second Stage debate. To explain it more fully I should say that the clear effect of section 2 of the Bill—when read with section 43 of the 1965 Act — will be to require the Commissioner to refer all warrants covered by the Bill to the Attorney General before any such warrant is endorsed. That is the clear effect of these provisions for two reasons. First, because under the next sections 44A and 44B, it is clear that the Attorney General will be required to form an opinion on whether to issue a direction in the case of all warrants to which the Bill relates. That is perfectly clear.
Second, because, the duty section 43 of the 1965 Act places on the commissioner to endorse a warrant is made subject to the provisions of Part III. Section 2 of this Bill has the effect of inserting sections 44A and 44B in Part III. The Garda Commissioner will therefore in view of the statutory duty which is being placed on the Attorney General by sections 44A and 44B, be under a statutory obligation to refer warrants covered by the Bill to the Attorney General prior to endorsing those warrants.
The effect of amendment No. 5 would be to add to paragraph (b) of the proposed new section 44B a specific requirement that the evidence, on which the intention to prosecute the person sought is founded, be in existence at the time the Attorney General forms the opinion, which that section requires. I believe such a provision is unnecessary. The effect of paragraph (a) of section 44B is to require the Attorney General to give a direction to the commissioner not to endorse a warrant unless he is of opinion that there is a clear intention to prosecute the person sought or continue a prosecution against him. Paragraph (b) of section 44B further provides that the Attorney General must be of opinion that that intention is founded on — and I quote —"the existence of sufficient evidence". If the intention has to be founded on the existence of sufficient evidence, surely that means — and in the context of paragraph (b) can only mean — evidence which exists.
Amendment No. 7 is not necessary because information in the present context would include evidence anyway, without the Bill having to say so expressily. With regard to amendment No. 6 in the name of Senator Brendan Ryan, the Criminal Law (Jurisdiction) Act, 1976 makes it a criminal offence under our law for a person to commit in Northern Ireland certain scheduled offences which, if committed within the State, would constitute an offence here. Those offences include murder, manslaughter, arson, kidnapping, false imprisonment, explosives and firearms offences. The Act also has provision for the admission, in trials in the State, of evidence taken in Northern Ireland and for the taking of evidence in the State for use by courts in Northern Ireland trying similar offences committed in the State. In addition, the Act makes certain explosives offences committed anywhere outside the State by an Irish citizen offences under Irish law.
The effect of this amendment would be that where the offence for which the person was sought was one for which it was possible to bring a prosecution in this jurisdiction under the Criminal Law (Jurisdiction) Act, 1976, the Attorney General would be required to direct the Garda Commissioner not to endorse the warrant unless of opinion that there was good and sufficient reason why the person should not be prosecuted under that Act. That would not be an appropriate consideration in this context.
Our concern in this Bill has been to respond to the concern that our extradition arrangements should protect the rights of accused persons to the greatest possible extent. That is what the new statutory safeguards regarding sufficiency of evidence and specialty are intended to achieve.
Equally the Government are concerned to maintain an effective basis for co-operation between this State and other countries by means of our extradition arrangements and other international obligations. The Government recognise that the approach preferred internationally is extradition and accept the principle that, where possible, persons should come before the courts of the country in which the alleged offence occurred.
That is not to say that the Criminal Law (Jurisdiction) Act, 1976 is obsolete. It is part of our statute law and will, of course, continue to be available in appropriate cases. Senator Ross queried the effectiveness of the Criminal Law (Jurisdiction) Act and tried to cast doubts on its effectiveness. Let me say to the Senator and to the House that there have been a number of cases brought under that Act and that in all those cases there was only one acquittal. There were convictions in all the others. It is very useful legislation and the Government have every intention of its remaining on the Statute Book.
The Minister appeared to imply that this sort of amendment was not appropriate in this Bill because of the Government's intentions. The Minister is entitled to his opinion as to whether it is appropriate, but the amendment was accepted. If the amendment was outside the terms of the Bill in your eyes a Chathaoirligh, the amendment would have been ruled out of order. Therefore, I have to accept that it is an appropriate amendment to this Bill. If it went beyond the limits of the Bill, properly interpreted, you would not have accepted it. Therefore, I cannot get involved in an argument with the Minister as to whether it is appropriate in this Bill because you have decided on that and, as always, I accept your ruling, particularly when it is in my favour.
It was also allowed in the other House. I am not one for encouraging making reference to the other House because I have no great interest in it, but they did discuss it.
Your eyes are on higher things.
You are quite right.
A family history of involvement in Fianna Fáil and a lack of interest in the other House are two of the many things you and I have in common. The Minister did say that in appropriate circumstances the Criminal Law (Jurisdiction) Act will continue to be used. I understand that Act would be used where the authorities in Northern Ireland or the United Kingdom wanted to prosecute somebody who was living in this jurisdiction and was guilty of an offence in Northern Ireland, or where they are prepared to co-operate with the authorities here to have such a prosecution carried out down here. Can the Minister envisage any circumstances, given that we have introduced extradition and that the only safeguards this Government are proposing are that the Attorney General should be satisfied that there is a clear intention to prosecute, or to continue to prosecute, or that there is the existence of sufficient evidence, under which the Criminal Law (Jurisdiction) Act might continue to be used? It obviously will not be where people can be extradited. One presumes, therefore, it would be only where people perhaps were not extraditable under our existing legislation. Where would people not be extraditable? Where would people be able to be charged under the Criminal Law (Jurisdiction) Act if there is not sufficient evidence, for instance? If sufficient evidence does not exist, the person cannot be charged under any legislation. If sufficient evidence does exist, the person will be extradited.
I think the Minister is, to a certain extent, avoiding the issue which is that we have been pressured by the United Kingdom authorities into agreeing to something that many of us do not like, even though there is a more complex but arguably equally effective way of dealing with the problem. What we are stuck with now is a redundant piece of legislation which represented an honourable compromise between two jurisdictions and in its place we have something which hands Irish people over to courts that I, for one, have no faith in. That is the nub of the problem. That is why we introduced the Criminal Law (Jurisdiction) Bill long before my time in the Oireachtas to ensure that Irish people who have historically, and with good reason, profound reservations about the quality of justice they would receive either in Northern Ireland or the United Kingdom, would not have to go through that process. There is no evidence even as recently as recent weeks, to believe that that fundamental fact has changed. That is why the Criminal Law (Jurisdiction) Act was introduced and we are now effectively bypassing it and leaving it there as a symbol to our previous perception of how Irish people were treated in other jurisdictions. I think the Minister ought to elaborate, if he can, on possible appropriate circumstances under which it would still have some relevance, because I cannot envisage them.
It might be necessary to bring a prosecution under the Criminal Law (Jurisdiction) Act in a case where extradition was refused for some reason or other. If somebody was wanted on other charges here, we might prefer to charge him here rather than extradite him and that charge could be added and entered under the Criminal Law (Jurisdiction) Act. The legislation is too valuable to discard for no reason.
The Minister is being a little careful in his adjectives. The legislation is more than too valuable, it is very fundamental and represented our attempt to deal reasonably with a problem and what we are doing now is circumventing it and doing something which many people find quite offensive.
Like many people I opposed the legislation to ratify the European Convention on the Suppression of Terrorism for precisely the same reasons that I am now here. I do not believe Irish people should be extradited to Northern Ireland and the United Kingdom given the present circumstances. It appears that what has happened is that the United Kingdom authorities and those in Northern Ireland have decided that they will not operate this Act even though it is the product of agreement which is meant to work towards reconciliation in these islands. I find it most regrettable. With regard to the circumstances which the Minister talked about, I cannot envisage circumstances in which a person who is being charged with offences down here which are sufficiently serious to persuade us not to extradite him will have their sentence in any way added to by the application of the Criminal Law (Jurisdiction) Act. If the Minister is seriously saying that we will not extradite people to Northern Ireland because the offence in Northern Ireland was relatively minor and because the offences we allege against them here are very serious, and that the Criminal Law (Jurisdiction) Act will add anything to the administration of justice, I think he is to a certain extent leading us into fairyland. I know he has to defend the indefensible sometimes but perhaps if I had experience of his office I might be more understanding in that regard. Since I neither have nor am I likely to have such a privilege I can only say that it appears that the Minister is effectively defending the indefensible. The Criminal Law (Jurisdiction) Act will lie on the Statute Book unused and ignored even though it was meant to represent a compromise between two jurisdictions and what we are effectively doing is handing over entirely and giving in to one perception of the solution to a problem in which we have a quite legitimate interest and one which is not protected by this legislation.
I move amendment No. 6:
In page 2, subsection (1) (a), between lines 30 and 31, to insert the following:
(c) there is a good and sufficient reason, where the offence is an offence under or pursuant to the provisions of the Criminal Law (Jurisdiction) Act, 1976 or is an offence specified in the Schedule to that Act, why the person named or described
in the warrant should not be prosecuted in this jurisdiction under or by virtue of the said Act:
It is hereby declared that good and sufficient reason shall not include the fact that evidence on commission may be required to be taken in respect of the said prosecution or that any witness or witnesses reside outside the jurisdiction.".
Is the amendment withdrawn?
The question is: "That the amendment be made." On that question a division has been challenged. Will those Senators calling for a division please rise in their places?
Senators J. O'Toole, Harte, B. Ryan, Ross and Ferris stood.
- Byrne, Seán.
- Cassidy, Donie.
- Cullimore, Séamus.
- de Buitléar, Éamon.
- Fallon, Seán.
- Farrell, Willie.
- Fitzsimons, Jack.
- Haughey, Seán F.
- Hussey, Thomas.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Mick.
- McEllistrim, Tom.
- McGowan, Patrick.
- McKenna, Tony.
- Mulroy, Jimmy.
- O'Callaghan, Vivian.
- Ó Conchubhair, Nioclás.
- Robinson, Mary T.W.
- Ross, Shane P.N.
- Ryan, William.
- Wallace, Mary.
- Ferris, Michael.
- Harte, John.
- O'Toole, Joe.
- Ryan, Brendan.
I move amendment No. 7:
In page 2, subsection (1) (a), between lines 30 and 31, to insert the following:
"(2) The word `information' in section 44B shall include evidence".
I move amendment No. 8:
In page 4, between lines 3 and 4, to insert a new subsection as follows:
"(3) A decision to give or not to give a direction under section 44A (inserted by this section) of the Principal Act shall not be reviewable for any reason by any Court.".
The logic of this amendment flows from the position which the Attorney General is given in the legislation. As I pointed out in an earlier section, the role proposed for the Attorney General is not one which my party favour and we voted in both Houses against the inclusion of the Attorney General. However, given that the Attorney General is now part of the legislation and an essential part of the entire process, it is important that his position be protected in every way possible.
In the other House amendments were made which insulated the Attorney General as far as possible and practicable within the framework of the law from any pressures or representations of any sort. This amendment tries to take that a step further. Basically, the purpose of the amendment is to ensure that the Attorney General will not be subpoenaed to court during the process of extradition. It is to try as far as possible to keep the decisions of the Attorney General out of the judicial process.
The logic behind our attitude is that if we wanted the decisions to be taken in the courts, if we had decided that there would be some form ofprima facie case, the Attorney General need not be involved, but we have now decided to go for the Attorney General as the filter through which the process will take place. If we do that, we have to make sure we do not end up with some sort of a dog's dinner. We must make sure we have a process which has the Attorney General there to effect decisions after due consideration of all the evidence, but we must not have the possibility of every single application being subject to the District Court, subject to a lengthy judicial process which would be the introduction of prima facie by some other means. Either we go for one way or for the other but we should not go for some sort of hybrid system which would give us the worst of both possible worlds.
Our courts should not review applications that are being transferred between the Attorneys General of the two countries involved. If we follow the logic of the legislation, that should not be the case. The function of the Attorney General is to report to the Houses of the Oireachtas and not to the courts. The parliamentary accountability of the Attorney General should be written into the legislation. The review clause is there; the Attorney General is, under legislation, insulated from representations and it is a criminal offence for any body or group to make representations to the Attorney General. For that reason, we are putting in this amendment which will clarify his position, give him a position of strength within which he can make his decisions, not having to answer as would be the case on every single occasion, perhaps, to a court or to a series of courts. Either we haveprima facie or we do not. A prima facie requirement in all probability would make extradition unworkable.
At the end of the day we have to get back to the fundamental principle of this Bill and the purpose of extradition which is to ensure that people against whom there is a reasonable case will be accountable in a court of law in the land where the alleged offence was committed under due process and in due way for what they have done. In the past the procedures have not worked. There were a variety of reasons and various speakers have referred to the reasons extradition has not worked in the past and how people against whom there was a case to answer were not brought before the courts.
It is important to keep coming back to the situation which has led to this legislation being necessary. We are not talking about people who have, perhaps, difficult political opinions. We are not talking about people who may have views which are uncomfortable for whatever political establishment, or establishments or, political parties of a particular country. For the most part we are not talking about well meaning cranks or people who can make life difficult through the holding of some particular views. We are talking about people who for the most part have been involved in some of the most murderous and horrific crimes this country has ever known. We are talking about people who hold life very cheaply indeed, about people who are accused of acts such as hijacking of aeroplanes and putting at risk hundreds of lives, people who import and set off explosives, who kidnap, who murder.
These are the sort of crimes, which have become all too common in the Ireland of the past ten to 15 years. We are talking about people who have displayed ruthlessness, cynicism, criminality of a kind which very few of us could have imagined possible many years ago. These are people to whom the Mafia could send their apprentices on an AnCO training course and they could learn from some of the ruthlessness, tricks and criminality of these people. That is the context in which we are talking. We are not talking about people who may have some unconventional ideas. For that reason, we believe that, since it is the collective wisdom of a majority in both Houses that the Attorney General is the route we have chosen to go, the position of the Attorney General should be strengthened in every reasonable way possible. That is why I moved the amendment.
On a point of information, if I am to understand Senator Manning correctly, is he suggesting that, if a warrant request comes from the United Kingdom to the Attorney General, the Attorney General on the basis of this Bill, should have the sole and exclusive power to decide, without any recourse whatsoever to the courts system in this country? If that is his understanding of it, I am rather surprised. He is in a sense suggesting that the case, as he puts it, is proven before it has actually gone through the judicial process. I would have thought that we should be helping to strengthen and protect the civil rights of people who are considered in the eyes of the law innocent until proven otherwise. Perhaps the Senator might clarify if that is precisely what he is suggesting and the reasons why.
A warrant to extradite does not presume guilt. A warrant to extradite says that there is a reasonable case to answer under due process of law in a recognised court. There is no presumption whatsoever under British and Irish law, and a person is considered innocent until proven guilty. There is no presumption of guilt whatsoever. There is a presumption that there is a case to answer, no more, no less.
I find this amendment quite astonishing. I also find the tone of a considerable amount of what Senator Manning said quite astonishing. He seems to be incapable of making the distinction between people who commit the outrages that he quite rightly condemns and people who are charged with committing them. The fact that people are extradited on a charge does not prove that they have committed anything. We are not talking simply about extraditing convicted bombers or murderers. We are talking about people who are going to be charged with these things. There is no reason to believe that all of the people who would be extradited would be found guilty anymore than there is any reason to believe that the majority of them will not be found guilty. But they will not all be found guilty. There is no rule of thumb that I know which says thatprima facie evidence proves that people are guilty, or anything approaching it.
We are dealing with people who are innocent in the eyes of the law, who have committed apparently no offence in this jurisdiction and who are being extradited to another jurisdiction. To suggest that somehow they should be precluded by law from recourse to the courts to defend their legal rights, simply to facilitate administrative convenience, seems to be a ludicrous imbalance between the rights of the individual and the rights of a society to protect itself from the use of unlawful force. Because we have been here a long time I will refrain from using my views on extraditionper se to discuss this. But even in the context of the Bill as written the amendment appears to suggest that you would take away from people the right to operate through the courts only in so far as the courts see fit to allow them to use those rights.
I do not know to what extent decisions of the Attorney General made under this legislation will be able to be brought before the courts. I do not think anybody knows. But I know it would be absolutely outrageous to deprive people of the right in principle to contest these things in court simply to facilitate administrative convenience. There are very fundamental issues involved, issues which involve people who are still presumed innocent. We cannot get around the fact that they are presumed innocent simply because we abhor a lot of the things these people are accused of doing. If the people were guilty of offences and had been convicted we would be dealing with one category of people.
We are dealing with people who are accused of offences. Let us not forget that the most spectacular single extradition case this country has had to date failed ultimately before the Judiciary in Northern Ireland. Therefore, we should not go around dressing up administrative details like this which are put in to facilitate extradition by interlinking them with the emotive issues of the crimes of which people are accused. This amendment would be a ludicrous and unfair assault on the rights of accused people who are innocent. I for one could not support it.
To show my complete independence in the matter I oppose this amendment on the main ground that what Senator Manning was proposing in it would not, in fact, withstand constitutional attack itself. It would be attempting to exclude the courts from any review of the decision under any circumstances. That must be of doubtful constitutionality. The role of the courts and their constitutional powers were considered in great detail in the famous Crotty case which came before the Supreme Court quite recently in the context of whether Ireland could ratify the Single European Act. You will recall that one of the issues was whether the courts had any role at all in relation to lodging the instrument of ratification. It is fair to say that all the members of the court expressed a positive view on that, both the majority and minority on the issue of whether Title III of the Single European Act was something which we could ratify without a constitutional amendment. I would like to refer to what Mr. Justice Walsh said in a relevant passage in that case. He said:
The Constitution confers upon the Government the whole executive power of the State, subject to certain qualifications...and the Government is bound to take care that the laws of the State are faithfully executed ... It is not within the competence of the Government, or indeed of the Oireachtas, to free themselves from the restraints of the Constitution or to transfer their powers to other bodies unless expressly empowered so to do by the Constitution. They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution.
One of the restraints of the Constitution which the Attorney General would have to act under would be that he did not in the exercise of his powers breach the constitutional rights of an individual. It might be difficult to posit circumstances where that would arise. I could imagine a case, for example, where the victim in Britain or Northern Ireland happened to be a very close relative of the Attorney General who was giving the direction. Then you could have a circumstances of bias which was in breach of the rules of natural and constitutional justice. It is not difficult to imagine where in the particular circumstances there was a flagrant breach of normal procedural standards and safeguards. What is being proposed here is that the review of the courts would be totally excluded for all reasons. That is not something that would stand challenge before the courts who would assert as they have done before the right, if necessary, to safeguard constitutional rights and the constitutional guarantee. Therefore, I oppose the amendment.
Regarding Senator Manning's reasons for putting forward the amendment and the assumption that all extradition cases will involve those who have committed the most heinous crimes, I presume he is referring to cases in which explosives and loss of life are involved. Could the Minister say off the top of his head what proportion of the 600 or more cases of extradition since 1965 are of the type to which Senator Manning has referred?
The Senator must learn that the Minister does not give information off the top of his head and will not start that practice now. This amendment proposes to say that a decision to give or not to give a direction under the new section 44A of the 1965 Act shall not be reviewable for any reason by any court.
The Bill as it stands does not seek to exclude the possibility that the court might review the Attorney General's decision because it would not be appropriate, and might well be unconstitutional, to seek to do that. I think that I could not do better at this point than to repeat what I said in my reply on Second Stage in the Dáil:
It is properly a matter for the courts themselves to decide whether a decision of this kind should be reviewable and, if so, to what extent. Some executive acts which require the deciding authority to be "of opinion" as to certain matters have been held by the courts to be subject to review by them, while other such acts have been held not to be reviewable or to be so only on relatively narrow grounds. It seems to depend in part on the nature of the act in question.
The Bill does not, therefore, seek to close out the possibility of review. What it does is it tries to ensure that, if somebody wants to put the question of a direction by the Attorney at issue in extradition proceedings, the onus will be on him to show that a direction was given or ought to have been given. It will not be open to somebody to simply make an assertion to that effect in court and thereby put the State on proof that a direction was not given and ought not to have been given. That is the effect of section 44C and it is a reasonable and acceptable application of the principle that he who asserts must prove.
The other thing the Bill does is that it reserves judicial review of the Attorney's decision to the forum where such review of executive or administrative action normally takes place, namely, the High Court. That is the intention of section 2 (1) (c) of the Bill which provides that in any proceedings in the District Court in relation to a warrant to which the Bill relates it shall not be necessary to prove that a direction of the Attorney General was not given or required to be given. This will mean that it will be possible to raise an issue about the Attorney's direction only in the High Court.
I am satisfied the Bill goes as far as it would be appropriate or desirable to go on the question of review of the Attorney General's opinion by the courts. That is the proper way to have it.
I would not presume to say that a person is guilty of any crime until the courts so prove. It would be improper of me to say that a person is quality of anything. It is, however, unlikely that we would be here today discussing this type of legislation and these procedures and safeguards if it were not for the experience of the past 17 years and the existence of what the Minister himself has recently described, with all the information available to him, as nothing short of an attempt to subvert the very institutions of this State. We are living in times when gun-running on a very large scale involving weapons of an incredibly destructive potential are being brought into the country. We have also seen again the ruthlessness of the people involved.
I am not engaging in any red scare, red bashing or green bashing. I am simply describing in very temperate and moderate language the type of situation which exists on this island in 1987 and the scale of the crisis which threatens our existence as a political society. That is the context in which we are discussing this Bill. However, I have listened very carefully to Senator Robinson and the Minister. Both have made a persuasive case against this amendment. Senator Robinson made, perhaps, the most persuasive case that if it were to be accepted she and other constitutional experts would be very busily engaged over a long period in finding that what I had proposed was unconstitutional. That is a temptation or an opportunity I would not care to put her way.
Have I done myself out of a brief?
The case has been made against this amendment and, therefore, I withdraw it.
I move amendment No. 9:
In page 4, between lines 3 and 4, to insert the following subsection:
"(3) The provisions of this section shall not apply to a person sought to be extradited who is certified by the Commissioner of the Garda Síochána to be a member of an illegal organisation within the meaning of the Offences Against the State Acts, 1939 to 1972. The giving of such a certificate may be appealed by the person concerned to the High Court whose decision shall be final.".
The purpose of this amendment is to provide that those who are convicted members of illegal organisations which advocate violence should not be given the same protection under this Bill as ordinary citizens. I see no reason why the procedures which are described by supporters of this Bill as safeguards designed to protect the innocent should be extended to those who specifically support the use of violence, maiming, bombing and shooting. I can understand the reasons for these so-called safeguards being put in the Bill but I am doubtful about how they will work and how they will be used. There are certain categories of people to whom they should not and need not apply. I do not see why the same rights and the same protections as are given to ordinary citizens should be given to members of illegal organisations if they are known and convicted terrorists. I would welcome the Minister's comments.
The midnight oil must have been burned with a capital B to come up with this amendment. It certainly is a novel suggestion. Presumably the inspiration for it was found in section 3 of the Offences Against the State (Amendment) Act, 1972. That section provides that sworn testimony of a member of the Garda Síochána not below the rank of chief superintendent that he believes that a person charged with membership of an unlawful organisation is such a member shall be evidence of that fact. But, of course, there is a vital difference between that provision and what is proposed here. The Offences Against the State (Amendment) Act provision relates only to charges of membership of an unlawful organisation. The opinion of a chief superintendent that the defendant is a member of such an organisation is made admissable as evidence on such a charge but on no other.
The effect of Senators Ross's proposed amendment, however, would be that the new procedure provided for in the present Bill would not apply to a person whose extradition might be sought for such offences as murder or manslaughter, use of explosives etc., provided the commissioner certified that a person wanted on such a charge was, in his opinion, a member of an unlawful organisation. In other words, in such a case the Attorney General should not address his mind at all to the question of whether there was an intention to prosecute which was founded on the existence of sufficient evidence. Senator Ross's amendment would, therefore, remove the safeguard which was available in cases generally from a person who was wanted on the most serious possible charges because the commissioner was of opinion that he was a member of an unlawful organisation. The opinion of the commissioner that a person is such is scarcely relevant to the issue of whether there is an intention, founded on the existence of sufficient evidence, to charge that person with murder or manslaughter.
Another point to be made about Senator Ross's proposal is that under the Offences against the State (Amendment) Act evidence of a Garda chief superintendent about membership of an unlawful organisation may be rebutted, and in practice often is, by the defendant denying that he is a member of such an organisation. Under the proposal here, once the commissioner gave his certificate, the safeguard provided for in the Bill about sufficiency of evidence would be removed in the case in question without further ado.
Finally, there does not seem to me to be any sustainable principle behind Senator Ross's proposal. The safeguard contained in section 2 of the Bill stems from the principle which is generally recognised internationally that extradition is for the purpose of charging a person in court with the offence for which he is sought and not merely for the purpose of questioning him. Implicit in the Senator's proposal is the suggestion that different standards ought to apply if a person whose extradition is sought is believed by the Garda to be a member of an unlawful organisation. Is Senator Ross suggesting that in such a case extradition should be available merely for the purpose of questioning a suspect against whom sufficient evidence to found a charge does not already exist? I have no wish whatsoever to put words in the Senator's mouth but I cannot help feeling that that is the ultimate logic of what he is proposing. If that is what he is suggesting, I think it is a pity he was not here on Friday to hear Senator Robb's contribution in which he referred——
On a point of order, I think it is not in order to refer to the absence of people and, second, I heard the whole of that speech.
I apologise to the Senator for touching some sensitive nerve. If, as he says, he heard Senator Robb's contribution, he will have heard, in the wider context, of measures to deal with terrorist violence in these islands, of the danger of excessive invasion of civil liberties. I hope that having given due consideration to that contribution by Senator John Robb, Senator Ross will withdraw the amendment.
Having given due consideration to what the Minister said and to other things I will withdraw the amendment but not for those reasons.
My comment is somewhat superfluous. I was going to do myself out of another brief for the reasons identified by the Minister, hazarding the view that this amendment would also be constitutionally infirm.
As we went through Committee Stage of this Bill something suddenly dawned on me. I do not want to be here any longer than I have to be. I am constitutionally unaccustomed to being in this House on a Monday and my metabolism has reacted against it. The matter I wish to raise relates to section 2 (1) (a) where there is a clear intention to prosecute. What concerns me is the fact that other jurisdictions may not prosecute or may not have a court system which prosecutes with the same emphasis on due speed as is the case in this country. It seems a reasonable requirement in terms of safeguarding Irish citizens that there should be a reasonable expectation of prosecution with due speed in any safeguards which will effectively guarantee the rights of Irish citizens that we are so concerned about. It also seems that the guarantee of prosecution, with due speed, relates to something else and is that our laws on bail are considerably more liberal in terms of the defendant than are the laws of many other countries.
In our society a person can only be refused bail if there is a reasonable suspicion that the person may either not turn up for trial or may attempt to intimidate witnesses. In other countries the gravity of the offence and other considerations can be used as a basis for refusing a person bail. So a person who would be allowed bail in this jurisdiction for an offence could well be transferred to another jurisdiction to be tried and could well, therefore, end up in custody for a considerably greater period than would be the practice here. There are, unfortunately, clear instances in Northern Ireland of people being kept in custody for years, particularly in the context of the supergrass trials but in other cases as well and being kept in custody indefinitely which is an effective form of detention. This has nothing to do with the people being tried for offences with which they have been charged and for which they are entitled to both a fair and a speedy trial. It is a cliche to talk about justice delayed as being justice denied. If we are talking about safeguarding the rights of citizens there is an obligation on us to ensure that Irish citizens, if they must be extradited, be guaranteed a speedy trial. I look forward to the Minister's comment on this matter because, much as it pains me, I may have to introduce an amendment on Report Stage to deal with the issue.
I understand that there is provision in the legislation in the United Kingdom and Northern Ireland for a time limit. Of course I share the concern, as would every Member of this House expressed by Senator Brendan Ryan on any undue delays, bearing in mind the cases that he has referred to. I am advised that in the cases to date where people have been extradited charges have been dealt with and there has not been any undue delay. That is something that we could look at.
It was quite a long time until McGlinchey was tried.
I am assured that it was no longer than would have been the case here. I should like to remind Members that we will have an opportunity to review the whole procedure at the end of a 12 month period when the matter in question would be looked at because the concern expressed by Senator Brendan Ryan is a concern we all share. There is a system, not just in the UK, but perhaps in France, where people often have to wait up to two years or longer. I remember a case, and I am open to correction on this by more knowledgeable people here, of somebody from Finglas who was waiting in Holland for something like two and a half years or maybe a little longer. I remember our colleague in the other House, Deputy Tunney — and perhaps others — being very much involved in trying to do something about that. He went to see the person concerned, spoke to him and tried to help. We are concerned about that kind of situation. We cannot change the laws in the United Kingdom or Northern Ireland for the self same reasons — we make our laws here and they make theirs. If there are, in the next 12 months, cases that could be considered, having regard to all the circumstances, of undue delay, that is something we would turn our minds to at the end of the year when we are reviewing the whole procedure.
It is nice to know that we all agree in principle. The reality is that if there was ill intent — and I still remain unconvinced that there is not a considerable amount of ill intent in the administration of both security and justice in Northern Ireland — the obvious line to take would be not to do anything unpleasant for the next 12 months until we deal with this legislation finally and there are no more time limits. After we have done that, this country would either have to reintroduce further amending legislation or time delays could begin to be introduced. The difficulty, as with most of my colleagues in this House, and in the other House, is that I do not trust the authorities in Northern Ireland to operate fairly in the administration of justice. Whatever I think about British juries I am not so worried about the administration of justice in the United Kingdom. I do not think that long term detention, though there are some unfortunate documented cases in Britain, is totally unrelated to Irish people being held in custody. That is a separate issue I wish to raise; the question of the difference between the application of the laws of bail in this country and in other jurisdictions.
People could and most likely will be kept in custody. Some would say that people would not have to be extradited if they had not fled from justice but that is not necessarily true. People could have left an offence behind them, moved to another jurisdiction, and then be charged with an offence. I suppose you could say that if they were perfect they would go back and face the court, some people do, but my difficulty is essentially with different practices. The Minister elaborated on them in terms of continental courts and so on. I am far more concerned about Northern Ireland than I am about anywhere else. What will happen after 12 months, if matters proceed reasonably well in that time, if we find that people are being kept for six months, 12 months or two years before being brought to trial? I would find that unacceptable. It is an improper invasion of people's rights and is an area that our Attorney General ought to be authorised to keep an eye on. If he believes that a certain jurisdiction is not ensuring that people get a speedy trial, he should begin to refuse to certify warrants for extradition until something is done about it. It is not a fundamental issue but is a matter of judicial administration.
Very briefly, if I may, on that point, I understand that often one factor occasioning delay in Northern Ireland is that defendants want to wait for a particular counsel. Senator Robinson will be far more knowledgeable about this, and many others will agree that that is so. I have met people, I have visited Belfast and have been in the courts there and I know what the situation is. I am also aware that quite a number of steps have been taken in Northern Ireland in trying to reduce the delays. This is something we welcome. We should encourage further steps to be taken to minimise the delays as far as possible. It is an important matter and we would like to be helpful.
I share much of the concern of Senator Ryan. It is important that the review clause be included more than just to meet its primary purpose which is to ensure that the legislation and the safeguards built in have worked. Also— and the Minister alluded to this in his last remarks — there was and is a degree of dissatisfaction among all parties down here about the rate of reform of the legal structures in Northern Ireland. It would be churlish on our part to say that nothing has changed. That simply is not true and it certainly would not be fair to say that; among those who are making the Anglo-Irish Agreement work, there is a sense of determination that certain important changes, both in practice and in attitudes, will be brought about. It is equally true that these attempts at change have come up against the bedrock of legal conservatism and traditionalism in Northern Ireland. Lawyers are lawyers and judges are judges and they are probably amongst the most conservative and unchangeable section in our community. Certainly, when it comes to changing anything dealing with their own privileges, practices or procedures, one finds across all parties in this House an extraordinary unanimity against change of any sort. In Northern Ireland also attempts by the relevant people in the Northern Ireland Office to bring about changes which certainly were implicit in the prelude to the Anglo-Irish Agreement and which still need to be brought about, have not been effected as fully as possible.
I hope that the one-year's-time review will concentrate our minds down here on ensuring that the legislation is effective and satisfactory in its safeguards, but it will also put on notice the authorities in Northern Ireland and those engaged in the Anglo-Irish process that we would like to see a much more speedy pace of change in promises which certainly need to be fulfilled.
I want to return to the thorny issue of whether the function of the Attorney General under the Bill is a judicial function. I expressed very grave reservations and I came to the conclusion, on Second Stage, that — although it is not an easy issue at all — on balance it does shade into being the exercise of a judicial function and, therefore, there is a worrying degree of concern about the constitutionality of the section and the role of the Attorney General.
In his reply to the Second Stage debate the Minister came back to this issue and referred to the principal case on which I had relied in raising the concern I had expressed. That was the case of the State (Clarke)v. Roche. In relation to that the Minister said that the fact of the matter was that in the case of the State (Clarke) v. Roche the Supreme Court was interpreting a specific statutory provision which conferred on district justices the function of receiving informations or complaints. The court held that the issue of a summons when the making of the complaint was a judicial as distinct from an administrative act but it did so and said it was doing so upon the terms of section 10 of the Petty Sessions (Ireland) Act, 1851. Far from holding that the issue of a summons was inherently a judicial act the court, on the contrary, said that there was nothing to prevent the provisions of the 1851 Act being replaced by statutory provisions which would provide for the procedure of issue of summonses being an administrative procedure only. The Courts (No. 3) Act, 1986, subsequently did that.
I do not disagree at all with that statement by the Minister but I do not think it takes from the case I am making. Indeed it is clear from the relevant provision of the Courts (No. 3) Act, 1986, that what was inserted was a clear provision that it would be an administrative act. Subsection 1(1) provides as follows: "Proceedings in the District Court in respect of an offence may be commenced by the issuing, as a matter of administrative procedure, of a summons by the appropriate officer of the District Court". With respect to the Minister, that is not really the issue with which we have to be concerned in looking at the characterisation of the function. What we have to look at in relation to the characterisation of the function is why the function was characterised as judicial when it involved the complaint to the district clerk and the issuing of a summons on foot of the complaint. It was because of the approach of the Supreme Court in an earlier case to which I have referred — the State (Lynch)v. Ballagh — in relation to the question of the granting of bail where Mr. Justice Walsh characterised that as the granting of a judical act because, and I quote him:
... a court has to determine the various matters which may be taken into consideration and exercise its discretion according to the law.
Determine matters and exercise a discretion — that was what was adverted to by the Supreme Court in the subsequent case of the State (Clarke)v. Roche. In that case the Chief Justice said that it was an “inescapable conclusion” from the terms of section 10 that the issue of a summons upon the making of a complaint “was a judicial as opposed to an administrative act”. There was the two-pronged thing: the summons was issued on foot of the complaint being filed, and considered by the person issuing the summons.
What then constitutes the exercise of a judicial function? Let us look at what the Government are providing that the Attorney General would do in section 2 of the Bill. The Attorney General would do a number of things. First, he would consider information. Second, in relation to that information, he would deem what information would be appropriate. Those are two functions — to consider the information and to consider what information he deems to be appropriate. Third, he forms an opinion, and he forms that opinion on two matters — as to the formation by the requesting country of an intention to prosecute the particular person named for an offence specified in the placeet cetera and second as to the existence of sufficient evidence for the formation of that opinion.
That appears to me to involve weighing facts, deciding on sufficiency of information, taking decisions in relation to the adequacy of that information by forming an opinion as to its sufficiency and whether the intention is found on the existence of sufficient evidence. The decision taken, the direction given by the Attorney General having gone through that process, directly affects the rights of citizens. It has an effect on the rights of citizens. If he does not endorse the warrant — end of story. If he endorses the warrant, that has a direct effect on the position of the citizen who is brought before the court and who may well be extradited. It seems to me that, if one takes the test of the Supreme Court in the case of the State (Clarke)v. Roche, the ingredients of a judicial act, applying the test of the Supreme Court, are there. I accept the Minister's contention that they need not be there in relation to the issuing of a summons. You can say: you do not have to consider anything, just issue it, issue it as an administrative decision and that is what the Courts (No.3) Act, 1986 does. It is quite possible to do it that way.
The Bill does not say to the Attorney General in this section that when the matter comes before him he should issue it like a computer, like an administrative act. On the contrary, the Attorney General is loaded with a series of responsibilities to determine whether he has adequate information on which to form his opinion, to form that opinion in relation to there being (a) a clear intention to prosecute and (b) that such intention is founded on the existence of sufficient evidence, and then to issue a direction which clearly affects the rights of citizens. That combination seems to raise a very strong arguable case that the exercise of the functions of the Attorney General are parallel to similar types of activities of District Court clerks or peace commissioners who are non-judicial bodies which have been struck down by the Supreme Court as being the exercise of a judicial function.
Of more importance than a Bill of this kind, which is only at present proposed to last for a year, is why posit a process which is clearly open to an analysis of the kind I have given. Any constitutional lawyer looking at it would have to shade one way or the other; it would be a shading and I shade on the side that it would appear to be constitutionally infirm. Given the sensitivity of the subject matter, why devise a mechanism that gives rise to the likelihood of lawyers being briefed to challenge it right up to the Supreme Court? I made the point on Second Stage that this Bill and our extradition code is becoming a lawyer's charter which might have certain positive elements to it if I was wearing a different hat but it is not necessarily good law.
I do not intend to take up the time of the House at this stage of the afternoon on the issue. I concentrated my contribution on the section of that issue. There are other questions I pointed out on Second Stage which are subsidiary to that — how the Attorney General is to address the functions he must perform and the discretions which he must exercise as to adequacy of evidence, the existence of sufficient evidence in another jurisdiction and so on. The real problem with this section is that it appears to require the Attorney General to perform a function which has all the characteristics that the Supreme Court has found to be characteristic of a judicial act. For that reason I cannot regard it as a sound provision.
I do not wish to raise the ire of the Minister but I could not sit down without very brief remarks in relation to his Second Stage reply. Like many people, I had serious reservations about this whole question which I am very happy to admit have been eliminated. I welcome the Minister's statement about his concern and that of the Government about the condition of Irish prisoners in Britain, specifically of the position of Miss Martina Shanahan to whom I referred on Friday. I understand our Embassy in London has sent an official to see Miss Shanahan and I hope her condition will be somewhat alleviated as a result. I also concur with the Minister's statement of support for the work of the Irish Embassy in London and their activities on behalf of Irish prisoners in the United Kingdom. I have had personal experience of the Embassy's help and co-operation in these matters in recent months.
Finally, I would say that the embassy staff can only do so much and it is, sadly, an ever expanding area. It is in that context and in the context of the monitoring aspect of the Bill that I made my proposal to the Minister that the full-time official who will be specifically engaged in looking after the interests of Irish prisoners in Britain would be an identifiable person to whom the various support groups operating in Britain would have ready and easy access. I just wanted to make those small points. I understand that, like the rest of us, the Minister is conscious to have this debate concluded.
I do not want to be mischievous, and I do not think I have been all day. I want to ask a question on section 2. Is there any legal constraint on the amount of information the Attorney General should deem appropriate so that he can come to his conclusion that sufficient evidence exists? Is there any upper limit to the amount of information he can seek? Am I right in suspecting that if the Attorney General saw fit he could seek more information than would be required to make aprima facie case in the court if he saw fit? There is no legal restraint to prevent him seeking information. The Bill states: “such information as he deems appropriate”. What is the limit to that information or could he, if he saw fit, seek so much information that he could make the process more cumbersome? I would not necessarily object to him doing that, given my views on the subject but, is there in the legislation something to prevent him seeking that volume of information?
I am just looking for the exact wording before answering Senator Ryan. I cannot find the particular section right now. Basically the Attorney General is to satisfy himself, and it is left to the Attorney General to get whatever information is necessary for him to satisfy himself that he is of opinion that a direction and so on be given.
It is left to himself. Therefore, if he wanted to be awkward he could seek an enormous amount of information. There is no legal restraint imposed on him.
The Senator appreciates as well as I do that co-operation is required between the two jurisdictions to ensure that the extradition process works satisfactorily and as we would want it to do.
It is clear from section 4 of the Bill that nobody is in a position to tell the Attorney General what he must do or what he must seek to do on this issue. I have to assume that what the Minister is actually saying is that if the Attorney General wants to be awkward he could seek an enormous amount of information. There is no legal restraint to prevent an Attorney General being as awkward as he wishes about a particular case or set of cases if he sees fit. In other words, what he does is a matter entirely for himself and his own independent judgment. It is not something I would be too distressed about but it does appear to leave an enormous amount of latitude to one individual. I am just intrigued that it should be like that.
In reply to Senator Ryan, the information has to be appropriate for the purpose of forming an opinion that there is intention to prosecute founded on sufficient evidence. It has to be appropriate for that particular purpose. I am quite sure that is the best and wisest way to have it.
That is fine, but who is to enforce this definition of appropriateness on the Attorney General if he chooses to interpret it differently? The Government cannot give him a direction. Nobody can make representations to him. He is an independent agency. It does seem it is his definition of appropriateness that will matter at the end of the day, not that of anybody else. His definition could be quite different from that of the Minister and myself.
It is a two-way process and I am quite sure our situation will be clearly understood by the jurisdiction making the application for the extradition.
Am I right in presuming that the prohibition in section 4 (1) (a) is absolute and applies to everybody including the Cabinet, etc?
Could the Minister elaborate on the type of penalties?
The section, a Leas-Chathaoirligh, does not make it an offence for a person to make an improper communication for the purposes of influencing a decision to give a direction under section 44A and that is deliberate. The position under section 6(1) of the Prosecution of Offences Act, 1974, on which the provision is modelled is exactly the same. No offence is created under that section either in respect of an improper communication. The then Parliamentary Secretary to the Taoiseach, Deputy John Kelly, spelled out the reasons for this approach in moving the Second Stage of the Bill in the Dáil and I will quote briefly from what he said: I draw particular attention to two aspects of this proposal. The first is that, while the act of communication for the purpose set out in this section is to be unlawful, it is not proposed to create a punishable offence in this legislation. It is the Government's belief that in practice a penal sanction will not be necessary as it is anticipated that the provisions of this Bill should become quickly known and observed. If however in the light of experience it becomes necessary to impose some sanction then amending legislation will be introduced.
No Government since 1974 found it necessary to introduce such amending legislation and the Government do not think it will be necessary in this case either.
I am a little concerned about the phrase "as soon as may be". I know this is a phrase which frequently occurs in legislation of this sort. I wonder if it would be possible on Report Stage to amend this section because I feel that there is a danger here. We all know about reports of semi-State companies which under law are expected to be produced as soon as may be after the first day of a certain month; in some cases we have seen these reports arrive a year or two years later. When that happens you can be quite certain that there is something wrong in the particular company. A company which has good news and all of whose affairs are in order will certainly not delay in the publication of its report; in fact, it will rush in if it has good news of any sort. I can envisage a situation here where if things have not been functioning very well, if there have been difficulties, the Attorney General might not be in a great hurry to make his report. I ask the Minister if this could be made more specific and more restrictive and, if not, why.
I share Senator Manning's concern. First, I would like to say that it is not the Attorney General who makes the report, it is the Government. This section provides that the Government shall make an annual report to each House of the Oireachtas in each year beginning with 1989 on the operation of Part III of the 1965 Act. The section as at present constituted was substituted for a provision to a requirement on the Attorney General to make an annual report to the Government on the operation of the new sections 44A and 44B as a result of a Report Stage amendment tabled in the Dáil in response to Committee Stage amendments tabled by the Senator's party. The Government made this amendment because they are committed to keeping the operation of the legislation under review, and the Taoiseach in the opening debate on Second Stage had indicated that if within 12 months of its operation the legislation was proving unsatisfactory for one reason or another the matter would be brought before the Dáil again. The provision in section 7 (4), which requires this legislation to be renewed 12 months after its passing provides for an ongoing annual review, will provide the Oireachtas with an opportunity to scrutinise the practical operation of the Bill. I understand what Senator Manning's concern is, and the particular phrase "as soon as may be" is a very common phrase used in all legislation which deals with circumstances like this for the simple reason that the parliamentary draftsman cannot tie it in exactly but rest assured that the onus is on the Government to bring the report to the Oireachtas and then there must be a discussion on it and it is as tight as one can have it. In the event of it not working to the satisfaction of the Houses of the Oireachtas, then it is a matter that will have to be looked at.
I am always suspicious of a phrase like that. There are a certain number of single transferable phrases which Ministers in Government will use when a certain amount of flexibility or indeed time is needed. I would like to ask the Minister if there is no other phrase which is somewhat more restrictive, because that could lapse on into March, April, May, June, in fact——
Could I say that that phrase must be read in conjunction with the other part of that provision which says: "shall as soon as may be after the first day of January in each year", so there is no question of reports coming in 12 months late or two years late. As the Senator properly said in relation to some reports, this week in the other House we had a member of his own party referring to the fact that the Committee of Public Accounts reports for 1981 and 1982 were only coming out now. Only recently I had to take out an 1984-85 prison report which should have been got out on time. I can guarantee they will not be saying the same about the next one.
Yes, indeed. Some of the reports we have been getting lately should more suitably go to the archives than to the Oireachtas Library. I am not happy but I accept the explanation given by the Minister.
I wish to refer back briefly to what we were saying about speedy prosecution of offenders if they are taken out of the jurisdiction. Is it the Government's intention that this report will not only deal with the Bill in relation to the Attorney General's operations but also involve details about persons who are removed from the jurisdiction whether or when they were tried and what the outcome of the trial was? In terms of a proper review it is equally important that we should know what happens to people at the other end.
The Senator will be pleased to learn that the report will deal with any problems that will be thrown up as a result of the operation of Part III of the Act, because if we do not deal with the problems then the Act will not work. It is our intention and I am sure the intention of everybody here, except yourself, to ensure that the Act will work.
For clarification on subsection (4) of section 7, does that mean that one year from the coming into effect of this Act the entire legislation has to be reprocessed through both Houses of the Oireachtas or can it be dealt with by a single resolution of each House?
By way of single resolution.
The Bill is now passing and it would be most inappropriate for me to let it pass without a comment. I am of course confined to the provisions of the Bill and I simply want to reiterate what have I said for well over 12 months, that this Bill which has been introduced by the Government effectively to facilitate the extradition of Irish people to the United Kingdom and Northern Ireland is a profound mistake. In my view it will achieve the direct opposite of its intention and that is to convince large sections of people in Northern Ireland that they are without friends and that nobody who claims to be on their side can really be trusted to understand their perceptions and to understand their views and that therefore it will not detach them from violence. It will convince them that there is only one source of defence and protection from what they feel is intolerable oppression. That is why I have consistently opposed the principle of extradition of our citizens and why I still remain unconvinced that the battle against the use of force for political purposes in these islands will be advanced one whit by this. The vanity of the Prime Minister of another country may be advanced by it but the objectives which we have and which we all share will not be advanced by it. I am still opposed to this Bill. I have been and continue to be.
Now that we have completed our business as far as the Bill is concerned I would like to express my very sincere thanks to you, a Leas-Chathaoirligh to the Cathaoirleach and all Members of the Seanad for the way in which they have dealt with this Bill, which was in a very positive and constructive fashion. It is a very important issue and I think we can say that all the Members of this House and the other House approached the Bill in a very mature way bearing in mind how easy it is to become emotional about such matters. I thank the Members for dealing with the issues in a proper fashion and for the courteous way in which they received my good self.
You are welcome.