Seanad Éireann debate -
Wednesday, 3 Feb 1999

Vol. 158 No. 1

Criminal Justice (United Nations Convention against Torture) Bill, 1998: Second Stage.

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

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I thank you, Sir, for facilitating me by adjourning the House.

On many occasions, Irish people have been appalled by the chilling reports we have received from around the world of terrifying acts of torture being inflicted upon countless men, women and children. The depth and scale of the pain and misery, which these reports have revealed, almost exceeds our comprehension. I know Senators will fully agree with me when I say that acts of torture have no place in a civilised society. The Government fully supports efforts to bring to justice those guilty of the heinous crime of torture. Given the commitment which this House has shown in defending and promoting human rights worldwide, I was glad to be able to initiate the Bill in this House and I have no doubt Senators will welcome this legislation.

The Bill, when enacted, will enable Ireland to ratify the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Against this background, the Bill creates a specific statutory offence of torture with a penalty of up to life imprisonment; allows a person to be tried here in relation to the commission of the new offence anywhere in the world; and prohibits the extradition of a person from this State where there are substantial grounds for believing that if the extradition were to take place the person may be subjected to torture.

The background to the Bill is as follows. The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the General Assembly of the United Nations in December 1984 and entered into force in June 1987. In September 1992 the Government authorised the Minister for Foreign Affairs to arrange for the signature of the convention on behalf of Ireland. Ireland signed the convention on 28 September 1992. There is widespread acceptance that Ireland's ratification of the torture convention is overdue and it was in that context that as Minister, I directed that this measure should be included as a priority in the very extensive programme of law reform which I have undertaken.

For Ireland to proceed to ratify the convention, it is necessary to ensure acts of torture, as defined in the convention, are offences under Irish law. The main purpose of this Bill is the creation of a statutory offence of torture in line with that contained in the convention, thus facilitating our ratification.

There is no statutory offence of torture in Ireland at present. However, the courts have held that the unspecified personal rights guaranteed by Article 40 of the Constitution include freedom from torture and from inhuman or degrading treatment and punishment. It should be borne in mind that in the absence of a specific offence of torture, actions which amount to torture may also amount to other offences under our law, such as serious assault offences. In addition, in the context of extradition, it has been held that it should be refused if the court is satisfied, as a matter of probability, that a person would, if delivered into another jurisdiction, be subjected to assault, torture or inhuman treatment. Because these judgments have applied primarily to acts of physical torture it is not certain that acts or omissions which could amount to mental torture would be equally covered. In all the circumstances, it is therefore desirable to create a specific offence of torture which includes acts and omissions which inflict both physical and mental suffering and to provide appropriate penalties for them.

Under the Bill, and in line with the convention, torture will consist of the intentional infliction of severe pain and suffering, mental or physical, on a person for the purpose of obtaining from that person, or another person, information or a confession; punishing that person for an act which he or she, or another person, has committed or is suspected of having committed, or intimidating or coercing him or her, or another person, or for any reason based on discrimination of any kind.

However, it will not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. This too is in line with Article 1 of the convention. In view of the seriousness of the offence, a person found guilty of the offence of torture would be liable for up to life imprisonment. The Bill also contains provisions dealing with offences such as aiding and abetting or attempting or conspiring to commit acts of torture, as well as acts designed to frustrate efforts to apprehend and prosecute persons for an offence of torture. A person found guilty of such an offence will also be liable to life imprisonment. Proceedings for an offence of torture, which may only be taken by or with the consent of the Director of Public Prosecutions, may be taken in any place in the State and the Bill will enable persons charged with the new offence committed abroad to be tried anywhere in the State.

The creation of the new offence of torture necessitates the amendment of a number of other Acts. Accordingly, the Extradition (Amendment) Act, 1994, is being amended to provide that the new offence of torture will not be considered a political offence and that extradition cannot be denied on that ground. The Defence Act, 1954, is being amended in respect of the jurisdiction of courts-martial to deal with the new offence of torture. The Criminal Procedure Act, 1967, is being amended in respect of the procedure in the District Court where a person is charged with torture and to provide that bail may be granted only by the High Court in such cases and, to give effect to the convention, the Extradition Act, 1965, is being amended to provide that a person will not be extradited to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. Other provisions in the Bill deal with privileges and immunities for certain bodies which are established under the convention, the commencement of the Act, and expenses arising out of its administration.

The UN convention imposes a number of further obligations on State parties which do not require to be included in legislation. For example, Article 10 provides that states parties will ensure that education and information regarding the prohibition against torture are fully included in the training of police, medical personnel, public officials and others who may be involved in the custody or treatment of any person who is subjected to any form of arrest, detention or imprisonment. These are matters that can be dealt with administratively.

I will now deal with the sections of the Bill. Section 1 contains standard provisions providing for certain necessary definitions. Section 2 is the central provision. It defines the offence of torture and sets out those categories of persons who may be guilty of torture. Under subsection (1), a person who is a public official and carries out an act of torture on a person will be guilty of the offence of torture. This subsection further provides that it is immaterial what the nationality of the public official is or whether the act of torture was carried out within the State or elsewhere.

Section 2(2) provides that a person, other than a public official, who carries out an act of torture on a person at the instigation of, or with the consent or acquiescence of, a public official will also be guilty of the offence of torture. It is immaterial what the nationality of the person is, or whether the act of torture was carried out within the State or elsewhere. The practical effect of subsections (1) and (2) is that a public official, or person acting at the instigation of or with the consent or acquiescence of a public official, no matter what the nationality of either, who carries out an act of torture on another person, irrespective of where that act was carried out, will be guilty of torture under the Bill.

Under section 2(3), a person who commits the offence of torture will be liable on conviction on indictment to imprisonment for up to life. This will make the offence an arrestable one and will put torture on a par with other very serious offences. Section 2(4) defines the terms "public official" and "torture". It states that a public official includes a person acting in an official capacity.

The definition of torture, which follows closely that contained in the convention itself, contains a number of elements. First, it includes both acts and omissions by which severe pain and suffering are intentionally inflicted on a person. The pain and suffering may be either physical or mental. The definition further provides that the pain and suffering must be inflicted for one or more specific purposes: obtaining from the person, or a third party, information or a confession; punishing the person for an act which he or she, or a third party, has committed or is suspected of having committed; intimidating or coercing the person or a third party; or for any reason based on discrimination of any kind.

Torture does not include, however, any act arising solely from, inherent in, or incidental to lawful sanctions. It might be helpful to make the point that there might be varying views as to how precisely to define the offence of torture. However, primarily what is at issue here is to enable the State to ratify the UN convention and, in the circumstances, there are obvious advantages in adhering as closely as possible to the definition which the convention itself contains.

Section 3 creates a number of offences other than the actual carrying out of acts of torture, but which contribute in some way to the offence of torture or are designed to frustrate efforts to prosecute others for the offence. Thus, any person, irrespective of nationality, will be guilty of an offence if he or she does any of the following: aids, abets, counsels or procures, within the State or elsewhere, the commission of the offence of torture; attempts or conspires to commit the offence of torture; or tries to obstruct or prevent the arrest or prosecution of a person for the offence of torture.

As in section 2(3), a person who is found guilty of any of these offences will be liable to imprisonment for up to life. While I accept that it may be more usual in our laws to provide for lesser penalties for aiding and abetting, etc., the commission of an offence – rather than the actual carrying out of the offence itself – and given the particularly heinous nature of what can be at issue, I believe it is appropriate in this case to provide for the same maximum penalty.

Section 4(1) provides that proceedings for an offence under the Bill can be taken anywhere in the State and may be treated as if the offence had been committed in that place. The effect of this will be that persons charged with the offence of torture or a related offence, which has been committed either in the State or abroad, may be tried anywhere in the State. Under subsection (2) of this section, a prosecution for an offence under this Bill may only be taken by or with the consent of the Director of Public Prosecutions.

Section 4(3) is included to avoid multiple provisions in legislation relating to extraterritorial jurisdiction. Under section 38 of the Extradition Act, 1965, an offence committed abroad by an Irish citizen is, in certain circumstances, an offence under Irish law. The effect of subsection (3) is that where an Irish national is accused of the offence of torture committed abroad, any proceedings will be taken under the Bill and not under section 38 of the Extradition Act.

Section 5 provides for the amendment of sections 169 and 192 of the Defence Act, 1954. Section 169 of the Defence Act, as amended by the Criminal Justice Act, 1990, deals with the trial of certain non-military offences by court-martial. Section 169(3) provides that where a person charged under the section is convicted by court-martial of certain offences, for example, manslaughter, rape and genocide, that person will be punished accordingly. Section 5(a) amends section 169(3) by adding that where a person is convicted by court-martial of an offence under this Bill, the person will be liable to a penalty of up to life imprisonment, in the same way as a person is liable to that penalty if convicted in a non-military court.

Section 192 of the Defence Act deals with the jurisdiction of courts-martial. Section 192(2) provides that a limited court-martial will not have jurisdiction to try certain offences, for example, treason and murder, and subsection (3) provides that a court-martial shall not have jurisdiction to try any person subject to military law for certain offences, for example, treason, murder, manslaughter, rape and genocide, unless the offence was committed while the person was on active service. Under section 5(b), the offences created by the Bill will also be excluded from the jurisdiction of courts-martial in similar circumstances.

Section 6 involves a number of amendments to the Extradition Act, 1965. These arise on account of the requirement in Article 3(1) of the convention that no state shall expel, return or extradite a person to another state where there are substantial grounds for believing that that person would be in danger of being subjected to torture. Accordingly, section 6 will add a further condition to the relevant sections of the 1965 Act to allow for refusal of a request for extradition where there are substantial grounds for believing that a person may be subjected to torture. Paragraph (a) will include a definition of torture in section 3 of the 1965 Act which will have the same meaning as it has in the Bill.

Section 11(2) of the 1965 Act includes provision that a person shall not be extradited if there are substantial grounds for believing that, if extradited, his position may be prejudiced on account of his race, religion, nationality or political opinion. Section 6(b) of the Bill will insert an additional subsection (2A) the effect of which will be that a person shall not be extradited if there are substantial grounds for believing that the person may be subjected to torture.

Section 33(3) of the 1965 Act provides that the Minister shall not make an order that a person is to be surrendered if he is of the opinion that it would involve transit through any territory where there is reason to believe that his life or his freedom may be threatened by reason of his race, religion, nationality or political opinion. Under section 6(c) of the Bill this will be amended to state that the Minister may also refuse to make an order if there is reason to believe that the person may be subjected to torture.

Section 44(2) of the 1965 Act, as amended by section 8 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, includes provision that a warrant issued in a place to which Part Ill of that Act applies shall not be endorsed for execution in the State if there are substantial grounds for believing that the person's position would be prejudiced on account of his race, religion, nationality or political opinion. This is amended by section 6(d) to include the belief that the person may be subjected to torture.

Section 50(2)(bb) of the 1965 Act, inserted by section 9 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, includes provision that a person arrested under Part III of the Act shall be released if there are substantial grounds for believing that that person's position would be prejudiced on account of race, religion, nationality or political opinion. This paragraph is amended, by section 6 (e), to include the belief that the person may be subjected to torture as a further ground for release.

Section 7 amends the Criminal Procedure Act, 1967, in two respects. Section 7(a) inserts reference to offences created by the Bill into section 13 (1) of the 1967 Act, the effect of which is that the District Court will not have jurisdiction either to deal summarily with offences created by the Bill or to send the accused forward for sentence in relation to those offences. At present section 13(2) excludes this jurisdiction in the case of offences such as treason, murder or genocide, to which will now be added the torture offences created by this Bill.

Section 29 of the Criminal Procedure Act, 1967 deals with bail in the case of treason, murder, genocide and certain other offences. It provides that bail may only be granted by the High Court in those cases. Section 7(b) inserts a new paragraph into section 29(1) of the 1967 Act to add the new offence of torture to those offences listed. As a result, bail may only be granted by the High Court in the case of a person charged with an offence under the Bill.

Section 8 amends the First Schedule to the Extradition (Amendment) Act, 1994, to include the offences created by the Bill. The effect of this will be that these offences will not be considered to be political offences and that extradition cannot be denied, therefore, on that ground.

Article 17 of the UN convention establishes a committee against torture to carry out the function of ensuring that states abide by their obligations under the convention. Article 21 permits the establishment of an ad hoc conciliation commission in appropriate cases. Article 23 states that members of the committee and of the ad hoc conciliation commission shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and lmmunities of the United Nations, which is incorporated in the Diplomatic Relations and lmmunities Act, 1967.

Section 9 makes provision for the committee against torture, and any ad hoc conciliation commission established by the committee, to be accorded the appropriate privileges and immunities as are necessary for them to exercise their functions independently.

Section 10 is a standard provision, which provides that any expenses incurred by any Minister of the Government in the administration of the Act will, to the extent sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas. The Bill may give rise to additional costs, for example, the costs incurred in prosecuting persons accused of offences under the Bill. In addition, the convention imposes obligations on states which have ratified it regarding expenses of the committee established under Article 17 as well as expenses incurred in connection with meetings of states and the committee. However, there are no grounds for believing at present that any substantial expenditure will arise.

Section 11 is a standard provision setting out the short title of the Bill and providing for the commencement of the Act.

In concluding my remarks, I want to say that this Bill honours an important international obligation and, furthermore, it is a positive indication of the repugnance we feel at unspeakable acts committed most frequently by tyrannical regimes which are sadly still all too prevalent in the world today. I believe it is also a demonstration of our willingness to do all we can to ensure that the perpetrators of those heinous crimes are brought to justice.

As recently as last December, we celebrated the 50th anniversary of the adoption of the Universal Declaration of Human Rights. I am pleased that, because of the priority which I accorded the measure, it proved possible to publish the Bill prior to that anniversary.

As Senators will be aware, this Bill is being debated first in the Seanad. Given the excellent and well deserved reputation of this House for raising and advancing human rights issues, I look forward to a constructive and informed debate. As always, I will follow the debate with great care and interest and will take full account of all contributions. I thank Senators for their co-operation in this regard.

Mr. Connor

On behalf of my party, I welcome this Bill. It is progressive and in many respects it improves the convention. I particularly welcome the provision in section 2 that the convention applies not only to public officials but it estab lishes the jurisdiction of the Irish courts over anyone irrespective of nationality or jurisdiction. It amends the Extradition Act, 1965, to prevent anyone from being extradited who would face torture by being returned to the country from which they fled.

I particularly welcome the universal jurisdiction aspect and I sincerely hope universal jurisdiction will be expanded to other crimes in the International Criminal Court. I urge that the statute by which we could ratify the International Criminal Court be quickly brought before this House.

Torture is one of the gravest violations of human rights and it demands from civilised society everywhere that effective means are in place to prevent it. Yet all over the world torture and other cruel, inhuman and degrading treatment and punishment are widespread. Torture is used by a large number of states to suppress what they consider opposition. It is used against minorities and vulnerable groups, such as land reform activists, spokespersons for urban poor, human rights activists and so on. It is particularly prevalent in many developing countries and countries which we would consider not developed where tyrants and dictators hold power. Sadly, it is also prevalent in countries in transition from dictatorship to more democratic and accountable forms of government.

Technological advancement has given torturers new devices and methods which have not only refined physical torture in the sense that it leaves less evidence, but have also refined mental torture to a frightening degree. Despite all the condemnations, declarations and conventions in the past 20 years, the characteristics of modern torture and other cruel, inhuman and degrading treatment or punishment are very difficult to prevent or wipe out. The nature of torture and the torturer is to use physical and psychological pain on its victim to destroy the dignity of the victim. In the end even the torturer falls victim to his or her own acts. The mental equilibrium of the human being is not compatible with the systematic and organised use of violence.

As long ago as 1977 the United Nations Commission on Human Rights drew up its first two draft conventions against torture. For almost ten years these draft documents were debated, revised, obstructed and delayed in various other ways in the Security Council and the General Assembly of the United Nations. Some of the chief obstructers, procrastinators and seekers of revisions to suit themselves were civilised nations such as the United States of America and the United Kingdom. Eventually the convention was adopted and opened for signature on 10 December 1986. It secured enough signatures to enter into force on 26 June 1987. Strangely, Ireland did not sign it until September 1992. I wonder why. Perhaps the Minister will explain the delay. A sufficient number of contracting states had signed by June 1987 for it to be brought into force. However, Ireland did not sign until 1992.

I am pleased this important human rights legislation is being introduced in this House and I thank the Minister for stating that this House has a good reputation on human rights issues. We signed the declaration in 1992 and effectively its conditions have been in force since then. Nevertheless, it has taken a long time to ratify the declaration by way of legislation.

In my opening remarks I spoke about the widespread burgeoning nature of torture and associated inhuman and degrading practices throughout the world. This is documented in the Human Rights Watch Report 1998 and in the Amnesty International Report 1998. The Amnesty International report states that people were reportedly tortured or ill-treated by security forces and other state authorities in 117 countries. There are not many more countries in the world. Degrees of ill-treatment and torture vary greatly, from the horrendous to incidents that often go unreported because they are regarded as slight. Nevertheless, it is very worrying that the accusation of ill-treatment, degrading punishment and mental and physical torture can be laid in one form or another at the doors of 117 countries throughout the world. In some 41 countries, including the United States, torture or ill-treatment, lack of medical care or cruel or degrading prison conditions have been confirmed as, or suspected of, leading to deaths in custody. Disappearances were reported from 31 countries in 1997. Some included people who disappeared in previous years.

Another frightening statistic in the Amnesty International report is that confirmed or possible extrajudicial executions were carried out in 53 countries throughout the world in 1997. There is no proof that the situation was any better in 1998, or that it will be any better in 1999. Interestingly, confirmed or possible prisoners of conscience were held in 87 countries, some very close to home. Usually these prisoners of conscience were conscientious objectors to military service and so on. In 34 countries, political prisoners were behind bars after unfair trials in 1997. China probably has the largest number of unreported unfair trials and death convictions following these unfair trials.

People were arbitrarily arrested and detained, or in detention without charge or trial, in 53 countries in 1997. The death penalty is closely related to torture because death often follows torture. Many who are tortured in prison end up on death row and executed. In 1997 executions were carried out in 40 countries. Many were carried out in countries close to Ireland with which we have very close relationships. There are prisoners under sentence of death in at least 70 countries, which indicates how widespread it is in many countries. In other words, there is a provision in the statute books of all these countries for the death sentence, which I am pleased we abolished. Armed opposition groups committed serious human rights abuses, such as deliberate and arbitrary killings of civilians, torture and hostage-taking in 31 countries. The so-called democratic Republic of the Congo, Rwanda, Burundi, Columbia and others fall into that category. These were some of the countries looked at in relation to torture and cruel and inhuman treatment by Human Rights Watch and Amnesty International. India is a country with which we have a very close relationship and with which we claim to have a close affinity in relation to its independent struggle and so on. Thousands of political prisoners are imprisoned in India. Many are tortured or ill-treated and denied medical treatment. There are suspicions of deaths in Indian prisons of political prisoners or prisoners held for being politically dissident or for what are deemed to be religious offences. These prisoners died in prison as a result of ill-treatment in 1997.

I mentioned Colombia, where hundreds of people were killed by security forces and paramilitary forces who had the support of the State. Torture in detention is routine in Colombia. I know that country is in a state of civil war, nevertheless, the convention states that no excuse can be made for the use of torture by any State.

Death squads are another phenomenon throughout Central and Latin America. They are given full licence in Colombia to dispose of people who are regarded as disposable because they have committed an offence the Government does not like, and there is no court system to deal with these so-called crimes. Death squads are assigned to deal with these people, and they effectively dispose of them. Very often in Colombia the people who are so disposed of are community activists, human rights defenders and trade unionists, which is extraordinary.

The other major country which has a systematic State policy of torture and ill-treatment in its prisons is the People's Republic of China. Routinely thousands of protesters and suspected opponents of the regime are rounded up and held for months or even years without trial. Torture and ill-treatment is endemic in the system in China.

In Chad, a very large country in central Africa, dozens of suspected opponents were extrajudicially executed in 1997. Security forces of the State regularly beat, tortured and ill-treated people who were detained. Many people who were detained were human rights activists and some were human rights lawyers.

Brazil is also interesting. It is the largest country in Latin America, with a population of 700 million. In 1997 hundreds of people were killed by police or death squads. Human Rights Watch and Amnesty International, who are noted for the integrity of their investigative work, reported this fact, which is not often reported in the media. Brazil has close relationships with this country and is an enormously important country in the world. It is the eighth largest economy in the world.

I visited Kenya last year as an observer of their elections. During the election campaign pro-democracy supporters and journalists were beaten up and imprisoned. I know because several NGOs and other people who witnessed these acts told me about them. NGOs monitoring the conduct of the election were also harassed and intimidated by security forces in Kenya. Seventy-four people were sentenced to death. However, I have no report as to whether the death sentence was carried out because Kenya does not issue figures relating to the number of executions within its borders. I do know that at least 800 people have received a death sentence and are waiting for it to be carried out by the end of this year.

Added to all this are our new concepts of human rights. Some very respectable world leaders have evolved new concepts. For example, many people look to President Musevini of Uganda as a major new force for improvement and democracy on the continent. He and people like him now espouse the theory of non-party democracy, in other words, a single party government. This is a modern recycling of the old system of the single party government which usually had socialism as the economic basis of the state. President Musevini's new theory is to have capitalism as the economic basis for the state.

African leaders talk about African solutions for African problems and it is often used as a guise that people prefer order to the quality of civil and human rights they enjoy. That is the basis of their theory and it is used to abuse the human and civil rights of hundreds of thousands of people in countries like Uganda, Ethiopia, Eritrea, the Republic of the Congo and, sadly, that theory is spreading to Angola.

I welcome this Bill and thank the Minister for introducing it. I regret the statute for Ireland to ratify the International Criminal Court is not included in the schedule of Bills to be introduced in the current session. As the Minister knows the Statute of the International Criminal Court must be ratified by 60 countries before it can come into effect. I hope Ireland, with his co-operation, will ratify it this year.

Mr. O'Donovan

I welcome the Minister to the House on our first day back. His presence is a clear indication of his huge commitment to this House. During 1998 he introduced approximately one-third of all legislation in the Oireachtas. This is an extremely important record. I would like to be associated with compliments to him for the huge workload he has carried out. I understand from our Leader that under this term many other Bills will be introduced in this House. About ten years ago I spent three and a half years here but, at that time, the introduction of legislation in the Seanad was an exception to the rule. It is very important to note that no fewer than 11 Bills were introduced here. This is great recognition for the House and it should continue. Furthermore, in relation to the work of this House it is important to note that in 1998, the Seanad sat three days less than the other House. It is also important to indicate the major workload that the Seanad has engaged in during the past 12 months, and this will probably continue.

I welcome this Bill. It ratifies the 1984 European convention and amends our legislation because "torture" or the statutory offence of torture was not on our Statute Book. This Bill will align us with European and other countries. It puts us in a position to ratify and bring our legislation up to date.

I concur with Senator Connor that in many states in Asia, South Africa, South America and the United States torture still prevails. In this small Republic of Ireland we have a long established democratic system for which we are criticised occasionally but we are probably one of the showcase countries, not alone in Europe but in the world, where human rights are to the fore. As the Minister pointed out, under Article 40 of the Constitution inhumane treatment of prisoners, etc., is prohibited. With regard to prisoners and how they are dealt with, we have the judges rules which clearly set out guidelines for the interrogation of prisoners and the taking of statements, confessions, etc. Sometimes politicians of all creeds, denominations and political affiliations are criticised for our work in this little democratic country. In the broader picture we are a leading light for any democratic country on how we run our affairs. It may not be Utopia but our system of law and order is second to none in Europe and elsewhere.

It is mind boggling to read and see on television the horrific atrocities of torture and human degradation in places like East Timor, the African continent and eastern European countries, particularly what is happening at the moment, for example, the ethnic cleansing which took place in former Yugoslavia where people were systematically taken out because of their religion, colour or creed. If we read our history books we would be alarmed to discover that this happened in the 16th century when Cromwell existed but as we approach the millennium greater atrocities are occurring in Europe and all over the world. We have to address this issue.

I know we are involved in a very important peace process at the moment but we must not forget that Irish citizens were tortured during the 1970s in Great Britain arising out of the Birmingham bombings. The Birmingham Six have since been pardoned but a great wrong was done. Confessions were extracted from Irish people because, at that stage, the end justified the means. However, that led to severe repercussions down the line for the British system of justice. The same concept can be applied to the Guildford Four.

We must not forget that the torture of prisoners was also prevalent in the North up to two years ago. I am not sure how that relates to the current situation in the North with regard to punishment beatings, etc., but I hope this matter will be resolved. It is something we must examine closely because the punishment beatings, knee capping, shooting, etc, that took place in the past 12 months despite the peace process should not be allowed in a civilised society. I hope the powers that be and the Government will try to address and resolve these matters.

Torture is widespread in many Asian and Arab countries and in China, on all continents, except Australia and to a lesser extent Europe. Torture of political prisoners and the whole concept of discrimination and ethnic cleansing are widespread on many continents. This has been self evident in places like Chile, Brazil and Colombia and other countries in South America. It is regrettable that this is being allowed to happen in modern civilised societies at the turn of the new millennium.

I compliment Amnesty International on the work it has done in highlighting the incidence of discrimination and torture. I see no reason for the death penalty in America. Our decision to abolish it was, I think, correct. There is a song about man's inhumanity to fellow man which dates back to a certain war. That inhumanity remains prevalent. We witness on television scenes of torture, mayhem and genocide in countries approximately two hours flight from Ireland, which is very serious and worrying.

The Bill, in essence, arises from the United Nations Convention Against Torture and other Cruel, Inhuman, Degrading Treatment or Punishment adopted in 1984. As it stands, our legislation does not include a specific statutory offence for torture. The Bill creates a specific statutory offence of torture which carries a penalty of life imprisonment. That is made quite clear and succinct in the Bill. Another important aspect is that it allows a person to be tried for the commission of the new offence anywhere in the world.

The Bill amends the extradition Act. If it can be established to the High Court, in an application for extradition, that the country to which the person is being extradited may invoke torture to secure a confession or conviction against that individual for any crime, there are grounds under this new legislation to prevent such extradition taking place. Extradition would be refused if a substantial case could be made in this regard.

The Bill also amends the Defence Act, 1954, which provides for a court martial for manslaughter, rape or genocide. Under the new legislation, if the offence of torture can be established – the Minister said it does not have to be a serving member – the life imprisonment aspect will be applied to the person so convicted in the same way as if it were in a civil court outside the court martial system. It also introduces changes in that any application in this regard must, in the first instance, be made to the DPP. Furthermore, any such applications must be dealt with by the High Court and not the District Court which indicates the gravity of the offence in question.

Section 2 defines torture. It need not necessarily be physical torture; it can be torture by inaction or emotional torture. A person can be tortured by neglect. For example, if an official in a Garda station knowingly ignores the plea of a prisoner in need of medical attention or if he or she is treated inhumanely or degradingly, it can be deemed as torture. Such official may not have carried out an action of inhuman treatment, but may have turned a blind eye or acquiesced when another prison officer or garda did the dirty work.

Another important aspect of the Bill is the setting up of a commission. It is to be called the Committee Against Torture under the UN Convention and will be headed by a commissioner and monitored on a regular basis.

Many Members are more affluent in matters of foreign affairs than me. Senators Norris and Lanigan have for many years highlighted and spoken openly in this House of the problems abroad. This House has an excellent record in highlighting incidences of torture, inhumanity and degradation in places like East Timor, eastern Europe, South Africa and Asia. We are recognised as always being to the forefront in rejecting and objecting to what is happening.

I thank the Minister for introducing the Bill in this House and wish it a speedy passage. I am sure Senators will, by and large, accept the thrust of the legislation which is long overdue. It has been on the agenda since 1992 and is important legislation which will heighten our international status on matters of torture and inhuman and degrading treatment.

Mr. Norris

I welcome the Bill. Unusually and uncharacteristically I do not have too many specific points to make. I have just returned from abroad and I am hopping between this debate and several other meetings. I am sure the Minister is aware that two other human rights protocols are before the Committee on Foreign Affairs and I wish to get back to discussing those matters with them.

The Taoiseach indicated in a press statement in December that the Minister for Justice, Equality and Law Reform had prepared this instrument and that it would come before this House. It has long been of reproach to Ireland that, for various technical reasons, this is one of the protocols we have not signed. I reflect on an article in The Irish Times of 18 August 1997 which reported a man reasonably well known to Members, and who has appeared before the Committee on Foreign Affairs, the Sub-committee on Human Rights and on television on a number of occasions, Dr. Mohammed El Sader, as describing the failure to ratify the torture convention as despicable. Obviously, he has very strong feelings on this issue and one understands why because his is a voice to which it is important to listen. He was a victim of torture in Iraq and knows exactly what he is talking about. I am sure Dr. Al-Sader will welcome the fact that an offence of torture is being created in Irish statute as a result of this Bill and that we will be able to bring persons accused of torture before the courts, no matter where the offence takes place. This is very important.

We have long been missing an agency to deal with the victims of torture. There are numerous people in this country from Vietnam, East Timor and elsewhere who have been routinely subjected to the most barbarous forms of torture. As far as I am aware, there is no agency dealing with the traumatic impact of torture. Today we heard of a soldier who received £200,000 because of the traumatic impact of hearing a gun going off. I would have thought this was the kind of thing one would anticipate in the Army. If we are so delicate about the nervous disposition of Irish soldiers, we should at least accept that people who are victims of torture over a long period suffer physical stress and psychological trauma. If they come here as asylum seekers and are granted refugee status, the State has a responsibility to assist them in rehabilitation in every way, not just by allowing them reside here, but also by looking after the physical and mental wounds they have suffered.

I am glad mention has been made not only of the interrogation procedures and methodology used by the British Government, which were found to constitute torture, but also of the torture inflicted by both sets of paramilitaries in Northern Ireland. I wonder if any Government will have the guts to take up the possibility of arraigning those who have been involved in punishment beatings and shootings. These incidents sound mild until one sees photographs, such as those in the newspapers last weekend, of a man with two stumps where his legs had been as a result of one such beating. As far as I recall that was a case of Protestant paramilitaries attacking one of their own. The man's wife said his children could no longer bear to look at him – when they spoke to him they looked at her. This is happening in our own community.

In the past week I have been made aware that even in the enlightened European community there is a degree of lack of sensitivity. I was made aware of a case in which the Swedish authorities attempted to forcibly repatriate a gay Iranian man to Tehran, despite the fact that his male gay partner in Tehran had been executed after being tortured by the Iranian authorities. We look to the Swedish Government as a beacon of liberal ideas, decency and tolerance, yet it was returning this man to Iran, presumably blissfully uncaring about the fact that he might be tortured and murdered.

There is also the case of Mr. Mugabe who was given such a welcome in the O'Reilly Hall in UCD a year ago. I was reprimanded in this House when I described him as a dictator. However, let us consider what has been emerging in recent days where journalists who printed stories which appeared to criticise the Mugabe regime were taken out, half-drowned and had electrodes attached to them. The doctor who attended these men said in open court there were deep scorch marks on their chests where the instruments of torture had been applied. Mr. Mugabe was hailed in Dublin as an emissary of light and democracy. We need to be watchful all the time because even those we suspect or believe to be our friends can be acting in a dangerous way behind our backs.

Let us look at the United States. Last night I watched a television programme about the Cold War. There is no doubt the CIA funded the subversion of democratic regimes throughout Latin America. It knowingly funded torture and was aware of what was going on. It deliberately subverted the Allende regime in Chile. On many occasions I have drawn the House's attention to the scandal of an operation called The School of the Americas, where US Government money was used to educate people in methods of torture. We should speak to our friends as well as those we believe to be our enemies and try to ensure the spotlight of public opinion is brought to bear on these issues.

I also wish to mention Indonesia. I know many of the Timorese people in Ireland. They appear outwardly cheerful but a number of them have witnessed their parents being butchered. This is often done as an example to villages and families. The authorities humiliate the parents or officials, reduce them from fully human status to a position of being intimidated, beaten and humiliated as an example to others not to follow their independent and democratic line.

On the "Pat Kenny Show" during the week it was interesting to hear a British comedian state that he used money to buy his way into an international arms fair and established a stall selling the PR expertise to evade difficult questions about arms purchase and torture. He managed to get a senior Indonesian general to admit on the record that it was part of the Indonesian Government's policy in areas such as East Timor and west Papua to engage in torture as an instrument of policy. That was a remarkable and interesting admission. The general also admitted that some of the hardware involved came from western European democracies which preach to others about human and civil rights. We have a considerable bag of worms to deal with when it comes to torture.

Amnesty International is often sharply critical and keeps an observant, critical eye on all these issues. It is significant that it has welcomed this Bill because it applies to public officials and establishes the jurisdiction of Irish courts over anyone, irrespective of nationality or jurisdiction. The Bill also amends the extradition Act to prevent anyone from being extradited who would face torture. This must be contrasted with the behaviour of the Swedish Government in the case I outlined. The Government is now taking the issue of torture seriously. I also welcome the fact that the question of an application for bail is taken so seriously that it has to be referred to a superior court.

However, the issue of mandatory sentencing has been drawn to my attention. I may be flatter ing myself to believe the Minister would remember anything I ever said, but he will remember that I have a difficulty in principle with mandatory sentencing. It is better to allow some discretion to the court in terms of sentencing policy. The case has been made to me that one of the difficulties in the area of torture is that such mandatory sentences may not take into account the fact that certain people may claim, as part of their defence, that they committed offences of torture but under personal, mental or physical duress, including threats to their lives. In those circumstances, it seems there should be some degree of flexibility available to the courts.

I would like to refer to a press conference which took place in November 1997 given by the Secretary General of the International Rehabilitation Council for Torture, Dr. Geneske, who is now dead, where she said that member states of the UN should ratify and implement this convention. She said – and this is rather worrying – that the low priority given by the United Nations to the issue of torture and the plight of victims was shameful. It is noteworthy to observe that she did not stop at torture but also looked at the plight of the victim. I should have mentioned that my interest in this is partly because I was a patron of the now defunct Rescue Trust, as was my colleague, Senator O'Toole. It concentrated specifically on the area of caring for victims of torture.

Dr. Geneske said that torture is used as a matter of routine by up to one-third of the membership of the United Nations – there is a Swiftian irony – and the primary aim of the use of torture is to break down the identity and personality of strong people who work for democracy. In other words, leaders' voices on behalf of the people are isolated and broken down by the application of torture. It is used as an instrument of power against those who want democracy and freedom in their countries. She said they take them in, break them down and send them back to their homes. These formerly strong women or men, maybe journalists, then become not so good journalists or human rights fighters. Dr. Geneske said they acquire psychological and physical problems although she added that the rehabilitation council now knew how to rehabilitate and help such victims. She also drew attention to the lack of support and resources for the medical professionals, some of whom were risking their lives to assist victims of torture.

I hope the Minister and his advisers will look carefully at rehabilitation and not just pass a technical measure allowing us to look good in the eyes of the world by signing up to this convention without doing anything practical. If we are serious about this problem, we must look at the question of rehabilitation and treatment.

At the press conference, Dr. Geneske also referred to the plight of people from Latin American countries, to which I referred earlier. It is particularly horrible that some of the victims of torture who received treatment at the major international centre in Denmark reported that daily they witnessed their torturers walking free on the streets. It must be an appalling prospect, having been subjected to this type of humiliation, pain and torture, to have to witness those who inflicted it on one walking free on the streets. Perhaps this Bill will go some way towards ameliorating this and ensuring that at least in Ireland victims of torture will not be compelled to witness the freedom of those who have caused them pain, humiliation and distress.

I welcome the Bill. I presume we are serious about our objections to torture and that we will implement the Bill, even if it causes us diplomatic problems. I presume that in the future, we will not balk at describing people like Mugabe as a dictator in that false polite manner to which this Chamber sometimes ascribes, but that instead we will look at what he is doing. On the next occasion Mr. Mugabe chooses to visit this country, perhaps under this Bill we will arrest him and ensure he pays the price for what he has exacted so mercilessly on some of his unfortunate former citizens.

Miss Quill

I welcome the Minister and I commend him for introducing the Bill in this House and the Government for taking action to transpose this protocol into Irish law. It is time this happened. Torture has been a particularly objectionable feature of this century. It is a vicious and invidious form of violence and very often it goes unchallenged and unnoticed in many countries which would like to present themselves internationally as paragons of virtue. It is important that Ireland not only takes a strong moral stand in upholding human rights wherever there are violations but that it also takes an active part in ensuring the perpetrators of torture are brought to justice whenever the opportunity is presented.

When this Bill is enacted perpetrators of torture will be dealt with in a decisive way, no matter where the torture takes place. This is a major advance for us in terms of how we view human rights. Victims of torture are often minorities and women. Mostly they are prisoners of conscience and good thinkers. However, because their thinking upsets the status quo, they can be the victims of sustained and vicious torture.

The key point I wish to make has been hinted at by Senator Norris. This legislation seeks to define torture. I am concerned about the prevalence of punishment beatings in a part of my country. Whatever about a technical definition, by any standards, these punishment beatings must constitute torture in terms of what is inflicted on the victims and a whole community. A punishment beating can have a brutalising effect on a community and its young people who see this sinister and insidious form of violence. These punishment beatings are contrary, not only to the spirit of the British-Irish Agreements but to its text because the Agreement identified violence, from whatever the source or for whatever reason, as being contrary to its provisions.

I would be assured if in the context of this debate we identified punishment beatings as a form of torture in the exact meaning of the word and if we sent a clear signal that punishment beatings are as unacceptable to us, citizens of a free sovereign State, as any form of torture inflicted in any other part of the world, whether it is Indonesia or the United States. It should be said clearly to the groups and organisations who continue to carry out these punishment beatings that they are not acceptable to us and that we are partners, in good faith, to the British-Irish Agreement. I want that message to be sent strongly from this House.

I would be glad if, in the context of our deliberation of this Bill, we could succeed in defining punishment beatings as a form of torture. This low grade violence is a fall-out of the antics of the Provisional IRA and others for the past 30 years – the type of gangsterism which masqueraded as patriotism in this country. I am thankful we have come to terms with the main features of that awful period. However, there is a residue of violence which seems to be endemic in certain communities and comes from an identifiable quarter. We should do everything we can to make it known that it is not acceptable and it must be stamped out.

I am glad this Bill is before the House. It is important that, as a country which has a good reputation, particularly as regards peacekeeping and peacemaking in recent times, we should seek to uphold and extend that reputation. That reputation should extend not only to putting the provisions of this Bill in place, but also to actively playing our part in peacekeeping operations in the EU.

An Leas-Chathaoirleach

I call Senator Ryan and take this opportunity to wish him well in his new role.

Mr. Ryan

I will take the Leas-Chathaoirleach's comments at face value. It is strange to find myself making the equivalent of a maiden speech after 17 years as a Member of this House. However, this is my first time to speak as a representative of a political party. In the glorious days of anarchy on the backbenches, nobody represented anybody.

I welcome this Bill. Amnesty International said that parts of it go beyond the necessary provisions of the convention and that is most welcome. While I do not wish to cavil, taking almost 15 years to ratify a UN convention on something as fundamental as torture does not leave us much space for self congratulation. The convention was passed in 1984 and Ireland signed it in the early 1990s. We are finally ratifying it now. Nevertheless, the ratification is welcome.

It should be a major cause of concern that 200 years since the Enlightenment, when the concept of the rights of man was articulated and the prin ciple of human rights started to crystallise as a fundamental principle, and at the end of a century which could be characterised as a century of progress, Amnesty International can still report that 117 countries can be accused of practising abuse and torture against their citizens. That is an incredible number. It is not something in regard to which the west can claim moral superiority. We should remember that in the civilised west 50 years ago there was genocide on a scale which matched the ferocity of what happens now in countries at which we tend to look down our noses and at which we threaten to throw our weight because we do not like what they are doing.

We are no different from anybody else. Given the political circumstances, attitudes and changes, there is no society which does not have people who are ready and willing to use the most appalling forms of torture to achieve political purposes. I agree with Senator Quill that the brutality of punishment beatings is one of many things that reproach people on this island.

While the Bill is welcome, one should not get carried away in assessing its significance. According to Amnesty International's annual report for 1998, Turkey ratified this convention even before Ireland. I will quote a passage about Turkey from page 338 of that annual report which states:

Hatun Temuzalp, a reporter for a left-wing journal, stated that she was tortured while held for interrogation at Istanbul Police Headquarters for seven days during March. Police officers insulted and threatened her, and pulled some of her clothes off. Her arms were tightly bound to a wooden bar and two people grabbed her, lifted her onto a chair, hung her up, and pulled the chair away. This happened repeatedly. After a period of intense pain she started to lose consciousness. A radiography report indicated a fractured shoulder blade. When brought before a judge, Hatun Temuzalp made a complaint of torture. She was released but her interrogators were not prosecuted.

That is just one incident in the report. Turkey has ratified the convention and is an applicant for membership of the European Union. A subcommittee of the Council of Europe reported last week that Turkey is now entitled to be regarded as a fully functioning democracy. Now that Ireland is drifting towards membership of Partnership for Peace, it should be pointed out that Turkey is a full, active member of NATO. I would have expected a movement committed to peace and human rights would at least begin by ensuring the highest standard of human rights were upheld within the member states of such an alliance.

In our country civilised law and Government are worth a great deal. However, they are not considered as worthwhile in other parts of the world, particularly when, according to Amnesty International, expediency rules. The 1998 session of the United Nations Commission on Human Rights decided there was no need to investigate human rights abuses in Saudi Arabia. However, the Amnesty International annual report shows that Saudi Arabia has ratified only one United Nations convention on human rights. We should not get carried away about the significance of these conventions. They are worthwhile in themselves and from our point of view, but they are not the beginning or end of anything.

I wish to put a number of questions about the Bill's provisions. Section 2 defines torture and I doubt that anybody could dispute the definition. However, if it had been in force in 1972, the European Court of Human Rights would not have been able to avoid finding Britain guilty of torture after the introduction of internment. What happened then is defined in the Bill in terms which leave no room for equivocation.

However, I am concerned about the phrase, which is also used in the convention, ". . . but does not include any such act that arises solely from or is inherent in or incidental to, lawful sanctions." I am anxious to know what that means. I sought an explanation in the explanatory memorandum but found the same form of words. I then listened to the Minister's speech and heard him quote the same phrase. What does it mean? Can we be offered practical examples of its meaning? Is it an escape clause to allow people not to be squeezed on this issue? If it is, that is a pity.

I accept that international conventions must be essentially about the lowest common denominator, but that does not mean we should include every element without some qualification. I await the Minister's explanation of the phrase. Given that the explanatory memorandum and the Minister use the same phrase, I am not sure anybody else understands its meaning. Does it refer to sanctions that are lawful under the convention, sanctions that are lawful in the state where it happens or sanctions that are made lawful by some extra body? What law is involved, national or international law? What is meant by sanctions? Do they refer to penalties or are we saying that even though torture is defined as an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for the purpose of obtaining information from that person or punishing that person for an act, it would be possible for a country to ratify this convention and then chop off the hands of people who are convicted of theft because mutilation is acceptable as punishment? Are we saying physical castration as a punishment for sexual offences would be regarded as acceptable? Are we saying that, in a country which uses the death penalty, it might be against an international convention to inflict pain but perfectly legal to execute a person? If the world is developing an international code of conduct, it should not be tied up in a morass of vagueness, uncertainty and escape clauses. If there are less than complete enforcement possibilities, we should say so.

We should be honest with ourselves and admit this is a first small step on a journey which could take 50 years before there is genuine international consensus on the principle of not using torture in a way which would bite. Something as significant and historic as the European Convention on Human Rights, its extraterritorial enforcement, and the fact that we accept the jurisdiction of a non-national court over our exercise of human rights, is a real contribution to the evolution of human rights. It was very important and it was dealt with slowly and carefully. I am genuinely concerned that the beginnings of equivocation about Turkey could be the beginnings of a retreat from some of the high moral ground that convention has allowed us to occupy.

Article 3 (1) of the convention states that no party shall expel, return or extradite a person to another state where there are substantial grounds for believing he or she would be in danger of being subjected to torture. I understand the extradition Act is being amended to ensure that, but it is not just by extradition that people can be returned to countries where they might be tortured. They can be deported to countries in which they might be tortured. Can I have a categorical assurance from the Minister that, irrespective of the status of an individual in this State or whether he or she has applied for asylum, that individual will not be returned to a country where there are substantial grounds for believing he or she is in danger of being subject to torture? That means a person should not be returned to a country in which torture is endemic. It does not mean the individual has to prove to the Department of Justice, Equality and Law Reform that he or she will be tortured, merely that he or she could be tortured.

There are two countries in particular – Somalia and Nigeria – with which this State is going to have to deal in terms of our immigration and asylum laws. It is suggested in a spurious manner that because there is no effective state in Somalia one cannot talk about state practice. This convention is not just about the use of torture by the state, it is about the systematic use of torture in any society. I would like the Minister to make it clear that we now have a policy, irrespective of the circumstances of a person's arrival in this State and of the Dublin Convention, that we will not be a party to returning people to countries where torture is endemic. That is what the convention means, whatever the ratification procedure.

The Minister said the penalty for torture or the related offence of aiding and abetting is up to life imprisonment. The Bill states that the person shall be liable on conviction to imprisonment for life. Is the penalty up to life imprisonment, a variety of penalties, or is it a mandatory life sentence? The Minister stated it is a penalty up to life, but the Bill does not leave room for flexibility. No matter what I think of torturers, I am not keen on mandatory life sentences. Nor am I keen on 81 year old generals, irrespective of their past, being sent to jail. I am happy to have them convicted, but not sent to jail.

Is it clear from this legislation that no such concept of sovereign immunity will apply to anyone arrested in this State on a charge of using torture? Is it clear that everybody, whether sovereign, government official or minion, is subject to exactly the same sanction in all circumstances where this convention applies and that torture is regarded as a breach of international human rights?

Mr. Lydon

I was pleased to hear the Minister state that acts of torture have no place in civilised society and that the Government fully supports efforts to bring to justice those guilty of the heinous crime of torture. It sounds laudable, but many of the speakers here have touched on what happens when torture becomes systematic in the State.

We all know that terrorists, kidnappers, gangsters and dictators use torture and I condemn out of hand the torture used in the Six Counties by the paramilitaries. This Bill, however, refers to the torture which is systematic and acknowledged by the State as part of its apparatus for gaining information or detaining people. I want to confront the House with the reality of this. For example, under the terms of the Bill, and in line with the convention, torture consists of the intentional infliction of severe pain and suffering, mental or physical, on a person for the purpose of obtaining from that person or another person information or a confession; punishing that person for an act which he or she has committed or is suspected of having committed; intimidating or coercing him or her or another person or for any reason based on discrimination of any kind. That is a very wide-ranging definition. It is one of which I approve but does that mean the gardaí would be guilty of torture if they arrested people who were handing our leaflets in the street or if they strip searched them in a barracks? Would that constitute torture? It would according to this definition, even if the leaflets these people were handing out purported to support life rather than its destruction. We need to reflect on this question.

I am pleased the Bill prohibits the extradition of a person from this State where there are substantial grounds for believing that, if the extradition were to take place, the person may be subjected to torture. In addition, in the context of extradition, it has been held that extradition should be refused if the court is satisfied it is a matter of probability that a person, if delivered into another jurisdiction, would be subject to assault or inhuman treatment. Does that refer only to particular cases or does it refer to the generality in that state? If it reflects particular cases, it is rather difficult to defend, but if it is a general statement, I do not believe we should ever extradite a person to the United Kingdom. I have said as much for years – I would not extradite a dog to that country. I say this on the basis of a statement made by Lord Denning, Master of the Rolls. He stated:

The public interest can sometimes be better served by imprisoning innocent persons rather than allowing a case to proceed which might undermine an institution of the state.

He said that in 1983 when dealing with the Birmingham Six. We all know the tortures inflicted on the Birmingham Six, the Guildford Four and many others.

It also means that if we ratify this convention, we may not extradite people to the Six Counties. It is well known that since the 1970s the RUC and the British Army have been routinely involved in the torture and ill-treatment of Nationalists. There is no doubt about that. In 1971, when 374 people were lifted and beaten up, the European Commission on Human Rights found the United Kingdom guilty of the torture of internees. This was later reduced by the European Court to inhuman and degrading treatment.

It is widely known that for many years the British Army and the RUC have taken people to Castlereagh detention centre and subjected them to systematic torture through white noise and deprivation techniques, such as hooding. If someone is found guilty of a crime in this jurisdiction, are we to send them up there for a trial? We need to think about these things.

If anyone thinks this is a thing of the past, it is not; that society is very violent. We know about the paramilitaries, but I refer to the Government attitude, as in the case of a Mr. David Adams who was arrested in 1994 because he is Gerry Adams's brother. He was seriously assaulted by the RUC; he was punched and rifle butts were driven into his body. His face was driven into the ground, resulting in damage to his face and teeth. He was called a Fenian bastard, and he heard one of the RUC men say he hoped he drowned in his own blood. After they punctured his lung he was brought to Castlereagh. He was brought past the custody sergeant, who later denied having seen any injuries, although a trial judge found that blood must have been pouring down Mr. Adams's face at that point. Against all regulations he was taken into a scene of crime room where officers took turns at aiming karate kicks against his leg until it broke. Mr. Adams heard the custody sergeant shout at his colleagues to avoid getting blood on the walls. Later, a doctor ordered that he be taken to hospital immediately. Half an hour later he was taken to hospital, where he remained for three weeks. No officer has been disciplined, much less charged with this criminal offence. Mr. Adams was recently awarded £30,000 in civil damages by the High Court in Belfast, but I believe the officers are still serving. The RUC has been condemned by the United Nations Committee against Torture and the UN Committee on the Child.

Is this legislation going to stop us from extraditing a terrorist or paramilitary to the Six Counties or the UK because this goes on? This does not just happen in the Far East or under dictatorships. Torture is practised systematically; as Senator Ryan said, it is practised in 171 countries, and that probably includes ours. France was famous for carrying out torture in Algeria and Egypt. The United States is the largest manufacturer of stun guns, electro shock weapons that are condemned by Amnesty International. They are ostensibly sold to guard cattle, but they are used as instruments of torture in other countries. We have a thriving industry in Ireland that exports what I term dual use electronic components that are part of the arms industry. Are we turning a blind eye to that? We should not – we should be aware of it.

A great organisation that is doing something about this is Amnesty International. If it were not for that body I believe half of this legislation would not be in place. One can see how long it has taken us to ratify this legislation. However, that is no fault of our own, as one does not see people tortured or killed for their religious beliefs, such as Catholics in Pakistan, Muslims in Egypt, those who do not believe in the new Jewish State, Jews in other parts of the world, or, as Senator Norris said, homosexuals in strict Muslim countries. We know that but I am more concerned with my country, both North and South of the Border. If we pass this legislation, we will be eliminating torture on a systematic basis by Governments.

Torture has never been the policy of any Irish Government, but we need only think of the "Heavy Gang" that was in operation for a while in the police. Nobody curbed them for a long time. Was that torture? According to the definition given by the Minister today it was. Will it be tolerated again? I do not know. When someone is subjected to interrogation for hours and hours on end, is that torture? The only way we will ever stop torture is by adopting the Amnesty International 12 point programme for the prevention of torture, which it promulgated in 1993. I will read them into the Official Report.

The first point is the official condemnation of torture. It says that the highest authorities of every country should demonstrate their total opposition to torture – we are doing that – and should make clear to all law enforcement personnel that torture will not be tolerated under any circumstances. The second point concerns limits on incommunicado detention. People should not be held without being allowed to contact a lawyer or their family in order that they may be abused in some way when in detention. The third is that there should be no secret detention or secret centres where people are taken. Governments should ensure that prisoners are held in publicly recognised places and that accurate information about their whereabouts is made available to their relatives and lawyers.

The fourth point covers safeguards during interrogation and custody. There should be procedures for detention and interrogation. Independent investigation of reports of torture is the fifth point, and the methods and findings of such investigations should be made public. The sixth step is that no statements extracted under torture should be used in any legal proceedings, but that does not always happen. Some people are sensitive and may be tortured in a way that tougher people would pass off.

We adhere to the seventh step, which is the prohibition of torture in law. We also adhere to the prosecution of alleged torturers and the principle that those responsible for torture should be brought to justice, which is the eighth step. However, the ninth step refers to training procedures. It should be made clear during the training of all officials involved in the custody or interrogation of prisoners that torture is a criminal act. They should be instructed that they are obliged to refuse to obey any order to torture – again I refer to the definition used by the Minister which is wide ranging and will present problems for interrogation by police forces.

The tenth point states that victims of torture and their dependants should be entitled to compensation and rehabilitation. The eleventh step concentrates on the international response. Governments should use all available channels to intercede with other Governments accused of torture – Ireland does that well. The twelfth point relates to ratification of international instruments. All Governments should ratify international instruments containing safeguards and remedies against torture, including the International Covenant on Civil and Political Rights, and its optional protocol which provides for individual complaints. Our work today is in line with that.

We all agree that torture is bad, that it only happens somewhere else and that tortures should be punished. However, by ratifying this legislation we are saying that torture may be closer to home than we imagine. Torture is not just hanging someone upside down and beating them with sticks; it is much more subtle. As the Minister said, it can by psychological as well as physical. It can be intimidatory and achieved by putting undue pressure on people. I know of cases where people were told their families would be pursued if they did not say something when interrogated.

If we pass this Bill we will be doing a good day's work. I commend the Minister for bringing the Bill forward so quickly, given that it had been neglected for so long. In his brief so far he has shown his willingness to tackle difficult issues and to produce legislation.

Mr. O'Toole

I support the legislation and welcome it. It is unfortunate that we waited so long to do something so important. We always seem to be behind the door in committing ourselves to UN conventions we have signed. Nonetheless, the Bill is welcome now that it is here and I compliment the Minister for introducing it – some of his predecessors could have done so but did not because it brings us into the global mainstream.

I wish to have a few points clarified. I was assured by the officials that the Bill's definition of torture is the UN definition, which means there is no need to spend time looking at it. Perhaps he could give his view on the connection between section 2(4)(b) and section 6. Section 2(4)(b) provides that torture is an act or omission by which severe pain or suffering, either physical or mental, is intentionally inflicted on a person for any reason based on any form of discrimination. That is quite clear and previous legislation has defined what we, in this country, mean by "discrimination". A previous speaker mentioned discrimination on grounds of sexual orientation. Section 6(d) amends section 44(2) of the Extradition Act, 1965, to provide exemptions for people who may be subjected to torture. However, the explanatory memorandum states that an application for extradition shall not be signed if there are grounds for believing that the person's position would be prejudiced on account of his race, religion, nationality, political opinion or vulnerability to torture. That does not seem to provide for a person who may be tortured because of his or her sexual orientation, which could happen in certain fundamentalist regimes.

The Bill's definition of torture does not include any act which arises solely from or is inherent or incidental to lawful sanctions. "Lawful sanctions" are not outlined or defined in the Bill, so perhaps the Minister could clarify what this means in the UN context. For instance, it is a "lawful sanction", in as much as it is allowed by law in certain fundamentalist countries, to amputate the hand of a person who has been caught stealing. Stoning is also an accepted sanction for certain anti-social behaviour in some countries. Anyone in this Chamber would regard either of those punishments as torture. How would the Bill apply in the event of a person being worried about being found guilty of an act of larceny in another country where the sanction for that offence was the amputation of a hand?

Perhaps the Minister could explain why the terms "public official" and "torture" are not defined in the interpretation section but in section 2 – there must be a reason for that. "Public official" is said to include a person acting in an official capacity. That is vague – I do not know what "an official capacity" means and it is not explained anywhere. Does it mean acting on behalf of the State or an arm of the State? This is fundamental because a public official may be charged under this Bill, as may be someone acting at the instigation, consent or acquiescence of a public official. We therefore need to know what is meant by that phrase in this case and how far it extends.

Does it include, for instance, a Head of State on his or her own? Dr. Sheila Cassidy is well known to Irish people because she was tortured under the Pinochet regime in Chile and is very outspoken. In the event that it could be proven that public officials were acting with the acquiescence of the Head of State, to put it at its mildest, is the Head of State liable to be found guilty of torture under this legislation and the UN conventions? In Britain there is considerable debate about whether a Head of State can be found guilty of the crimes of the regime over which he presided. After the war it was found necessary to hang Lord Haw-Haw who was involved in propaganda, whereas it appears, under the nightmare scenario, that if the British had got their hands on Hitler they would not have been able to take any action against him. He might have been prosecuted in the Nuremberg trials but that is different. I ask that the position be clarified.

The point was well made by a previous speaker about what is happening on our island. We heard extraordinary stories about the activities in places like Castlereagh during the last 30 years and one hopes we have moved on from that. We are also aware of official involvement in clouding investigations into those events, and official collusion to ensure the facts did not emerge. It is important that this Bill should also deal with people who colluded in some way in covering up torture. The Bill mentions those who aid, abet, counsel or procure torture but does not mention a person who conspires, after the event, to deny justice in the sense we are talking about.

Those questions arise for me on a casual reading of the legislation and I would like to hear the Minister's response. I have been involved in Amnesty International and listened to the remarks of Senator Ryan and Senator Norris; that body's annual report is always hair-raising in terms of what we are prepared to put up with and tolerate. It also raises the question of where we stand on Partnership for Peace, which is a difficult issue, but there is no doubt that the world needs policing and we will have to find a way of doing it.

Perhaps the Minister could take on board something we should do more about, which is that many victims of torture turn up on this island as refugees and asylum seekers – not always as refugees as defined by the convention but as people who come to escape a regime. I will not rehearse the debate about how we should meet, greet and look after them because that is for another day, but the Minister should consider counselling, support and help for victims of torture. I have encouraged that for a number of years, without much success, but it is an important matter and we in the developed world should be supportive of it.

I welcome the legislation and I am gratified that it has at last been introduced. The Minister can take credit for that, particularly as many of his predecessors simply ignored the need for legislation or did not act quickly enough. I hope the Bill will gain the support of the House.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I thank Senators for their kind remarks and I express my appreciation to those who contributed so constructively to the debate. Like many Members, I believe this is an important Bill and the tone and content of the debate was very constructive.

Everyone will agree that even the eloquence of Senators cannot adequately express the total abhorrence we feel about the misery and suffering inflicted on the countless victims of torture. As legislators, we naturally wish to play our part in bringing to justice those who are responsible for these horrendous crimes. It goes without saying it is important that we are in a position as quickly as possible to ratify the UN convention by bringing forward this legislation. I am pleased to have been able to do so. There may have been some validity in criticising the delay in bringing forward the legislation, given that Ireland signed the convention in 1992. I can only say that, in the context of my extensive programme of law reform, I gave the legislation considerable priority and I am glad to be bringing it forward at this point.

Examples were given during the debate of atrocities which have been committed in various parts of the world. The House will appreciate that, as Minister for Justice, Equality and Law Reform, it does not fall directly within my brief to comment on these matters but I assure Members that the concerns they legitimately expressed about specific international human rights issues will be brought to the attention of the Minister for Foreign Affairs, Deputy Andrews, at the earliest opportunity.

A number of the issues underlying the legislation have been highlighted by the Pinochet case. That matter was raised some time ago in the Lower House when the Minister for Foreign Affairs pointed out that abuses of human rights in any country are of concern to the entire international community. He reminded the Dáil that, during the years of the Pinochet dictatorship, Ireland strongly condemned the violations of human rights carried out by that regime. While the Minister believed that the perpetrators of all human rights abuses should be brought to justice, he indicated that this could only be done in accordance with the jurisdiction and laws of the country concerned or within the framework of specific international legal instruments.

The House will understand why I am reluctant to comment on the case currently before the Law Lords. I understand that the central question at issue is one of whether, in light of international law, the individual in question has immunity against the extradition proceedings. While my officials will monitor developments in respect of that case in terms of the consideration of the legal issues involved, at this stage I would make the point that, under Article 29.3 of the Constitution, "Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States". Obviously Irish courts would have regard to this in considering cases which may come before them where such considerations arise.

To return to the more general issues raised by the Bill, the House may be aware that the Law Reform Commission in its report on non-fatal offences against the person stated that the creation of such an offence in domestic law would give concrete effect to the principle that torture constitutes a serious violation of the right to bodily integrity, which warrants special prohibition and punishment in the criminal law. It would also lend consistency and coherence to Ireland's condemnation of the practice of torture elsewhere. The commission recommended that consideration be given to the creation of a specific offence of torture, thereby also facilitating Ireland's accession to the UN convention. That is precisely what the Bill before the House does.

I fully accept that criticism by us of the behaviour of other states in the area of human rights can sound hollow if our record in our own jurisdiction can be called into question. Like Senator O'Donovan, I believe this country's human rights record has been good not least because for over 60 years the citizens of this country have been protected by a bill of rights, namely, Bunreacht na hÉireann.

Significant developments are under way in respect of the protection of human rights in this jurisdiction – particularly, as Senator O'Donovan stated, in the context of the British-Irish Agreement. Under the Agreement the Government has undertaken to further strengthen the protection of human rights in this jurisdiction. Senators will recall from the Agreement that the Government's commitments in this regard extend to bringing forward measures to strengthen and underpin the constitutional protection of human rights, drawing on the European Convention on Human Rights and other international legal instruments in the field of human rights. The question of incorporating the European Convention on Human Rights into Irish law must also be further examined in this context. In addition, the Government has undertaken to establish a human rights commission with a mandate and remit equivalent to that of the Human Rights Commission recently established in Northern Ireland.

My Department was assigned a lead role in respect of formulating proposals on these commitments. The latest position in this regard is as follows. The question of incorporation of the European Convention on Human Rights into our law is currently being examined by a small group of experts from my Department, the Departments of the Taoiseach and Foreign Affairs and the Office of the Attorney General. In this way it is hoped to examine the range of options open to us, particularly in relation to the legal policy issues and the technicalities that inevitably will be involved in this complex area. The work of the group will have to take into account the work of the All-Party Oireachtas Committee on the Constitution as well as the recommendations of the Constitutional Review Group which are contained in its 1996 report. The work of the group is proceeding as a matter of priority.

Work on the establishment of a human rights commission with a mandate and remit equivalent to the Human Rights Commission in Northern Ireland is continuing as a matter of priority. I hope to be in a position to bring heads of a Bill to Government in the near future. Draft heads of the Bill were circulated to Departments early last month. In this regard the Taoiseach gave a commitment to the Dáil on 2 December 1998 that the heads of the Bill, when approved by the Government, will be circulated to two Dáil committees – the Joint Committee on Justice, Equality and Women's Rights and the All-Party Oireachtas Committee on the Constitution. I had hoped that this could be done before the Christmas recess but, due to the need for detailed consultation with Departments and detailed discussions with the Office of the Attorney General, this was not possible. I hope to be in a position to have the heads of the Bill approved by the Government very soon.

While I am not in a position at this stage to provide details of my commission proposals, the Taoiseach has already indicated that, when established, the human rights commission should be a model of its kind in Europe. In this regard, my proposals are taking as their starting point the UN's Paris Principles which were adopted in 1993 as a blueprint for national human rights institutions. It is the Government's hope to create rather than follow the standards of best international practice in this field. I am confident that, when presented, my proposals will find broad acceptance both inside and outside the Oireachtas.

In the best traditions of this House's concern for human rights, today's debate has been extremely useful. As indicated at the outset, all the views expressed will be fully considered before Committee Stage to which I look forward. At this stage, however, I will refer briefly to a number of the comments made by Senators.

Senator Connor raised the issue of the international criminal court. The Statute of the International Criminal Court adopted at Rome in July 1997 must be ratified by 60 states before it can come into effect. More than 70 countries, including Ireland, have already signed the Rome statute. In regard to ratification, it must be borne in mind that this statute is a long and complex document with 13 Parts and 128 Articles, in respect of which no reservation was permitted. As a first step, these will require careful and detailed consideration to determine the nature and scope of the legal and administrative measures which may be required to be adopted for the State to be in a position to meet its obligations under the statute. The State may proceed to have it ratified when all the necessary legal and administrative procedures have been put in place. I am not in a position to say how long this process might take, but I assure the Senator it will be given a high priority.

It is proper that I should congratulate Senator Ryan, not so much on his joining the new-old Labour Party, but on his appointment as the new-old Labour Party's spokesman on Justice.

Mr. Norris

And everything else.

Mr. O'Donoghue

To move to Senator Norris's contribution, the Bill does not provide for mandatory sentences. The legal phrase "shall be liable on conviction on indictment to imprisonment for life" is a standard formula used where the intention is that the maximum penalty is life imprisonment. The term "shall be liable" does not mean a life sentence must be imposed. I do not blame Senator Norris if he was misled by the explanatory memorandum. It might have inadvertently given the impression the life sentence was mandatory.

Mr. Norris

I thank the Minister for that information.

Mr. O'Donoghue

Senator Norris also referred to punishment beatings. While they do not come within the technical definition of the Bill, I agree a clear message should emanate from this House that punishment beatings are wrong. They should stop now. No man or woman has the right to be judge and-or executioner in such matters. I agree with the Senator when he deplores these barbarous attacks.

Senator Ryan referred to the phrase "does not include any such act that arises solely from, or is inherent in, or is incidental to lawful sanctions". This, as the Senator pointed out, is taken from the convention. Imprisonment may, by itself, cause an individual severe mental pain and that is the type of exception which would be at issue. It would also be the case that the exception in question would allow states which still operate capital punishment to be party to the convention.

Returning a person to a country, covered by Article 3, specifically refers to grounds for believing that he or she would be in danger of being subjected to torture. That seems to imply that this relates to a specific danger to a certain person; in those circumstances I do not believe the type of blanket assurance mentioned by the Senator would be at issue.

Senator O'Toole asked about the addition of the word "torture" to section 50(2) of the Extradition Act, 1965. I can confirm that the definition of "torture" which applies to the 1965 Act is the same definition included in section 2 of this Bill. The Senator raised the question of the definition of "public official". I am advised the drafting intention was to make this definition as inclusive as possible. It appears there is little doubt that a head of state of the type referred to by Senator O'Toole would be a person acting in an official capacity.

I hope that covers the majority of the points raised. I again thank Senators for their tremendous co-operation on this important matter and look forward to Committee Stage in the House.

Question put and agreed to.

Committee Stage ordered for Wednesday, 10 February 1999.