Vol. 168 No. 23
I move:
That Seanad Éireann approves the exercise by the State of the option or discretion provided by Article 1.11 of the Treaty of Amsterdam to take part in the adoption of the following proposed measure:
a proposal for a Council Framework Decision on the European arrest warrant and the surrender procedures between Member States
a copy of which proposed measure was laid before Seanad Éireann on 11th day of December 2001.
I am grateful that the House has been able to create space in a very busy Seanad schedule, to facilitate debate on this very important motion.
Everybody here and every citizen we represent knows by now that the appalling atrocities committed in the United States on 11 September last have shocked the world into the realisation that internationally organised terrorism threatens us all. Before our eyes we saw the evil of terrorism strike, with devastating effect, at the heart of the most powerful nation on earth. The impact of this shock has been enormous. Those who suffered most, obviously, are the families and friends of the dead and injured – many of them Irish or with Irish connections. Apart from that, global business confidence has been shaken, international travel has been very significantly curtailed and, as we all know, a war is being waged in Afghanistan as a direct consequence of the 11 September attack.
Another direct outfall of the 11 September attacks has been a very substantial acceleration in the evolution and development of proposals to counter international terrorism. The main purpose of this debate is to enable the House to debate two such proposals which have emerged in the recent past at EU level.
Before I come to this proposal, it is appropriate that I say something about the pace and the range of activity taking place within the European Union Justice and Home Affairs area – commonly referred to as the third pillar area. The reality is that over the past while, the pace of third pillar activity has greatly exceeded activity levels in the first and second pillars. Respected independent experts have commented on this. In a recent article dealing with the area of freedom, security and justice, for example, Professor Monar of the Sussex University Institute has stated:
The European Union has now entered the new millennium with a new major political project which future historians may well regard as another of these defining ventures: the creation of the "area of freedom, security and justice (AFSJ). Laid down in Article 2 of the Treaty on European Union it occupies the same rank as a fundamental treaty objective as, for instance, the implementation of a common foreign and security policy, the single market and economic and monetary union. Politically its longer term significance could be even greater than that of these earlier important projects because it is all about delivering a range of essential public goods to the citizens of the European Union. These include key issues of internal security and access to justice, areas which have historically played a central role in legitimising the build-up of public authorities and the creation of the modern state and which – much more so than, for instance, foreign and security policy matters – are of direct concern to citizens.
He goes on to state:
There is no other example in the history of European integration of a policy-making area which made its way as quickly and comprehensively to the centre of the Treaties and to the top of the EU's policy-making agenda. Ten years ago, at the beginning of the 1990s, what was then called 'justice and home affairs' did not even exist as a policy-making area within the scope of the Treaties, and the limited co-operation between the member states which had been building up since the mid-1970s took place in a range of poorly co-ordinated intergovernmental groups which lacked adequate institutional structures, legal instruments and objectives. Today, after the Amsterdam reforms, the additional impetus given by the 1999 Tampere European Council and a broad range of legislation adopted or in preparation policy making in justice and home affairs has not only become a fundamental treaty objective but also one of the most dynamic and expansionist areas of EU development in terms of generating new policy initiatives, institutional structures and its impact on European and national actors.
The events of 11 September have added further impetus to the evolution and development of EU third pillar proposals. This, not surprisingly, imposes considerable pressure at both official and ministerial levels for countries such as ours with limited resources – we have to maintain pace with our EU partners, many of whom are much more heavily resourced than us. Apart from that, there is, and will be, additional pressure on national parliaments in respect of issues requiring parliamentary approval. Time pressures can mean that proposals will be brought to parliaments for approval when negotiations at EU level are either still in train or just barely concluded.
The proposal which is the subject of the motion before the House has been the subject of discussion, and significant amendment, over the past two months and only came up for decision at the Justice and Home Affairs Council on Thursday and Friday last, with the objective of it being agreed at the JHA Council. Although the proposal came up for decision on Thursday and Friday last, there was still a significant level of debate resulting in further important amendments to the text – some made at Ireland's behest – in an effort to secure overall agreement. The result is that the Dáil and Seanad are being asked to debate texts the latest version of which only became available yesterday.
My point in outlining the time pressures involved is not to suggest that Ireland is somehow being hard done by in having to deal with these matters at short notice – many of our EU partners have the same difficulties. My main point is that third pillar business is progressing, and is likely to progress for the future, in a way that will require us to look afresh at how we can, on the one hand, conduct business efficiently and effectively at EU level, while, on the other, also facili tate the necessary level of oversight and scrutiny by the Houses of the Oireachtas.
As it happens, agreement at the JHA Council proved elusive last week in relation to the European arrest warrant. I believe it is necessary, for reasons I shall outline when I come to the detail of the proposal, that the Taoiseach should be able to join the other EU heads of state or government this week in signalling his agreement to the European arrest warrant on the basis that the prior agreement of the Houses of the Oireachtas has been secured.
As to why this particular proposal and the motion on combating terrorism which will be debated later tonight came before the House at all, Senators will be aware of the provisions of Article 29.4.6º of the Constitution which states:
The State may exercise the options or discretions provided by or under Articles 1.11, 2.5 and 2.15 of the Treaty referred to in subsection 5º of this section and the second and fourth Protocols set out in the said Treaty, but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.
This provision was inserted largely on the basis of concerns which were expressed by the Labour Party. The understandable concern of the Labour Party in proposing the constitutional provision was that, in respect of certain matters on which the State could exercise an option or discretion, the approval of both Houses of the Oireachtas should precede any ministerial agreement. Senators will be aware that several matters have come before the Houses of the Oireachtas under Article 29.4.6º dealing with asylum, immigration and civil law matters.
It has not, however, been the understanding that matters needed to be brought before the Houses where the relevant treaty provision referred to actions that fall to be taken by the EU Council of Ministers, as distinct from actions taken on the basis that they fall within the "options or discretions" open to the State. The practice in relation to proposals for framework decisions, for example, which fall to be decided by the JHA Council and involve the approximation of laws, is to seek the advice of the Attorney General as to whether any constitutional issues arise. If a constitutional impediment is identified, the practice is to seek to have the offending provision removed as a precondition to ministerial agreement.
This procedure not only has the advantage of efficiency in dealing with JHA Council business, but ensuring that constitutional issues are identified and addressed before there is any agreement. Consistent with this approach, our EU partners, once they understood our constitutional difficulties, were invariably prepared to be accommodating in meeting those difficulties. Our partners have been accommodating also in relation to this proposal. Several provisions in the original draft proposal for a European arrest warrant gave rise to concern on constitutional grounds, but important adjustments have been made so that all but one of these have been fully addressed.
I will return later to the one remaining issue on which a question might be raised as to constitutionality and I shall be commending the proposals as they now stand to the House. The point I want to make is that, by virtue of the fact that important constitutional issues arose in respect of one of the draft framework decisions now before the House, the Government has decided, having taken the advice of the Attorney General, that while it has not been the norm to refer proposals for Council framework decisions to the Houses of the Oireachtas, the better course for the future would be to bring all proposals for framework decisions before the Houses.
Turning now to the proposed framework decision on the European arrest warrant, the European Council meeting in Tampere in October 1999 asked the Commission to bring forward a proposal for an arrest warrant. The Commission tabled its proposal in the aftermath of the events of 11 September. We discussed the proposed framework decision at the Joint Committee on European Affairs some weeks ago. There has been intensive negotiation since then and the text I have laid before the Houses of the Oireachtas represents what is likely to be the final shape of the decision. Fourteen of the member states, including Ireland, were able to indicate broad agreement to the proposals contained in the current text when the Justice and Home Affairs Council met on Thursday and Friday last week. I understand, following further direct bilateral contacts between the remaining member state and the Presidency, that the remaining member state is now also in a position to agree to the proposal as currently framed.
The proposal for a European arrest warrant has at its core the concept of mutual recognition and respect for the judicial processes of the member states of the EU. Based on those concepts, the proposal seeks to simplify procedures to ensure a more efficient system of justice throughout the Union. Towards that end, it is proposed to replace among the member states the existing extradition arrangements based on the 1957 Council of Europe Convention on Extradition with a simplified surrender procedure. In essence, it replaces the inter-state aspects of extradition with an inter-court system. It is important to emphasise that the European arrest warrant applies between EU member states only and that existing arrangements with non-EU states will continue to apply.
Ireland accepted the need to review current systems in light of the new and devastating threat from international terrorism. However, it was also concerned to ensure that the basic safeguards to protect the individual's rights and liberties were adequately protected. A proper balance needed to be found between the need to protect society at large while retaining the long established safeguards that have been a feature of extradition law heretofore. I believe we have achieved that balance.
The general rule set out in the framework decision provides that an arrest warrant may issue in respect of offences with a maximum penalty of at least one year's imprisonment. However, in the case of an offence on a positive list which carries a maximum penalty of at least three years imprisonment, the dual criminality requirement will not apply. The positive list I have referred to contains 32 of the most serious offences. These include hijacking, terrorism, murder, laundering the proceeds of crime, child pornography, firearms and explosives offences, illicit trafficking in drugs and radioactive materials, and, given our recent sad experiences, it will allow us to deal more effectively with illicit trafficking in humans.
In the case of offences on the positive list, a warrant may issue based on the definition of the offence in the law of the requesting state. As I indicated, the dual criminality test will no longer apply to offences on the positive list where there is a maximum penalty of at least three years. That is to say, it will no longer be necessary for the court in the requested country to consider whether the offence on which the warrant is based is an offence in both the requesting and requested state. However, given the seriousness of the offences listed, it is highly improbable that we could be faced with a situation where we would be surrendering someone for conduct which, if it occurred in Ireland, would not be a serious offence here too. The requirement of dual criminality will, however, continue to apply to all other offences coming within the scope of the framework decision.
The decision as now presented contains many safeguards. I was especially concerned that a person who had been surrendered should not be subject to investigative detention. That has been guaranteed. We have ensured that the proposed decision includes provisions ensuring that consideration is given to protection of the fundamental constitutional rights of the wanted person before he or she is surrendered. The rule of specialty, whereby the person may only be proceeded against for the offences specified in the warrant, is being retained. The consent of the individual and of the Minister will have to be given if the person is to be tried for other charges.
Furthermore, a person may be surrendered only in respect of offences committed in whole or in part in the requesting state; any attempt to pursue a person in respect of offences committed elsewhere will not be allowed. I sought to ensure throughout the negotiations that the indepen dence and discretion of the Judiciary in dealing with requests for surrender would be fully protected. This protection has been achieved. The framework decision also contains provisions ensuring that a person's right to free expression and free association are not interfered with.
I believe the framework decision will enable the European Union to respond to the new threats while preserving the fundamental concepts and ideals of individual freedom and liberty. It enables us, together with our partners in the European Union, to play our part in protecting our citizens against the evils of international crime and terrorism while upholding and protecting those basic rights and freedoms that are so essential in a free and democratic society.
It would be helpful if I outlined in a little more detail the content of the draft framework decision. Chapter 1 covers Articles 1 to 9, inclusive, and deals with general principles. Article 1 makes clear that a warrant may issue only where there is an intention to prosecute or to execute a sentence, that is, it is not for investigative detention. I have succeeded in having a declaration inserted in order to avoid any possibility of ambiguity on that point as far as Ireland is concerned. This Article also provides that nothing in the proposed decision shall interfere with the obligation on member states to respect fundamental rights and legal principles. It is important that should appear in Article 1 as a basic principle.
Article 2 is the fundamental part of the proposed decision, as it defines its scope. While the arrest warrant will apply to offences punishable by a minimum of 12 months in the issuing state, there is also set out what has been referred to as a positive list of major offences. The list contains 32 such offences. A major offence is one which attracts a penalty of a least three years' imprisonment. In the case of these major offences, the offence shall be as defined in the law of the requesting member states, but the critical point is that the court in the requested member state shall not apply the dual criminality test in such cases. This is a departure from current practice but, as I have indicated, we are very likely to find in practice that offences of the kind listed are in fact serious offences in all civilised societies. The dual criminality test will continue to apply to all offences other than those major ones to which I referred.
I referred earlier to one aspect of the proposed framework decision where a question might be raised as to its implications, constitutionally, for Ireland. The issue arises in the context of the positive list to which I referred and the proposal that dual criminality should not apply where a person is sought for an offence on the positive list attracting a term of imprisonment of at least three years in the requesting state. The reliance on the definition of the offence in the law of the requesting state only, without any means of establishing the position in the law of the requested state in relation to the same set of events or circumstances, has the effect of ousting the dual criminality test for any such offence. The Attorney General has advised that, in the absence of Dáil and Seanad approval pursuant to Article 29.4.6º of the Constitution, an Irish court would be as likely as not to make a finding of unconstitutionality in such circumstances. Article 29.4.6º gives the appropriate constitutional protection against that risk, although even in the absence of Article 29.4.6º it should still constitute merely a risk, albeit a substantial one, since there is no conclusive case law on the point.
Articles 3 and 4 set out mandatory and optional grounds on which a court in the requested state may refuse to execute a warrant. Between them, these Articles contain all the major reasons for non-execution of extradition requests under current law and practice. These grounds include, in addition to grounds related to dual criminality to which I have referred, situations where the person has benefited from an amnesty in the requested state, where he or she has already been tried for the offence in question or is currently being proceeded against, where he or she would not be held criminally responsible for the offence in the requested state, or where the person has been subject to a judgment in a third country for the offence in question. Article 4.7 ensures that the warrant may be refused where the offence took place in whole or in part in the requested state. It also ensures that a warrant may be refused if it relates to an offence committed outside the territory of the requesting state and the law of the requested state would not allow it to exercise extra-territorial jurisdiction for that offence.
In addition to these grounds, Article 5 specifies guarantees to be given by the requesting state. It must provide the wanted person with a new hearing if he or she has been tried in absentia. It must give assurances about access to regular sentence reviews where a person is facing a life sentence. It also makes provision that sentences may be served in the person's own state of residence or nationality.
Article 6 defines the judicial authorities, that is, the courts, as the relevant competent authorities for the issuing and execution of warrants. I draw the attention of Senators to this article because it marks the change from the inter-state nature of extradition as we have known it and replaces it with an inter-court system for the surrender of wanted persons. Article 8 provides that member states may designate central authorities to assist the judicial authorities. In Ireland, the central authority will be the Minister for Justice, Equality and Law Reform. Article 9 sets out the minimum content of an arrest warrant.
Chapter 2 of the draft decision covers Articles 10 to 20, inclusive. The Chapter deals with surrender procedures. Articles 10 and 10a are concerned with means of transmitting warrants. Article 12 ensures that the arrested person has access to legal advice and, where necessary, to the facilities of an interpreter. Article 13 provides that while there is an obligation on the requested state to ensure the person remains available for surrender, it also provides that the person may, in the words of the text, be provisionally released. In our system, that means being released on bail.
An arrested person may consent to surrender. He or she may also agree to revoke the rule of specialty. As I mentioned earlier, that rule ensures that a person may be proceeded against only in respect of the offences specified in the warrant. Article 14 ensures safeguards for the arrested person. It requires that there is a system in place to ensure that consent is given voluntarily and in full awareness of the consequences. In our case, that will mean giving the consent in open court and with access to legal advice. At the insistence of Ireland and some other member states, Article 14(4) makes clear that consent may be revoked, that is, a person may change his or her mind. All of these safeguards are designed to protect the person from undue pressure to consent.
Article 15 provides that the court in the requested state may seek additional information and that if this is not forthcoming within a specified and relatively short time, the person is to be released. Article 16 provides guidelines for situations where there is a number of warrants from other member states or extradition requests from third countries in respect of the same person and a judgment is required as to the priority between those requests.
Article 17 sets out timeframes for the taking of decisions by the courts on the execution of warrants. All member states recognised that it was important to ensure the new arrangements would result in faster and more streamlined arrangements. However, I had serious concerns about the very prescriptive approach taken in the initial drafts. I took the view that such an approach encroached on the independence and discretion of the courts. I have ensured, therefore, that the rigidity has been removed and we now have a set of target dates to be achieved.
Articles 17a and 17b spell out the process to apply when a delay occurs in the surrender process. It provides that the person may be temporarily transferred to the requesting member state or may be interviewed in the requested state but in accordance with the law and practice of the requested state. In other words, interviews being conducted here would be carried out in accordance with Irish law and practice. Where a person has been transferred temporarily, he or she has the right to return to attend all hearings relating to him or her. I think it very unlikely that we will agree to temporary transfers as it may be seen as interfering with a person's rights of access to the courts and to legal advice.
Article 17c deals with privileges and immunities. We are speaking here of immunities which certain office holders may enjoy. Article 17c provides for waiver of immunities and to deferment of surrender until the immunity has elapsed. Article 17d has been included to deal with situations where a person has been extradited to an EU member state by a non-EU state. It ensures that the conditions under which that person was extradited are respected. It is important that the Union acts in good faith towards third countries and that treaty obligations with third countries are respected. This Article will ensure all that.
Article 18 sets out arrangements for the surrender of the wanted person following a decision of the court to execute the warrant. It provides that the surrender should take place as soon as possible and within ten days in instances where the person has consented to being surrendered. Importantly, it also provides that surrender may be delayed for humanitarian reasons or for reasons related to the person's health.
Article 19 deals with cases where, although it has been decided to execute an arrest warrant, it is also necessary to continue with other proceedings under way in the requested state or to allow for the completion of a sentence already being served in the requested state. In such cases the requesting and requested state are required to come to an agreement on how to ensure the surrender takes place. Article 20 makes provision for transit through a third member state of a person being surrendered and specifies the information to be provided to the member state of transit.
Chapter 3 includes Articles 21 to 23 and is entitled "Effects of the Surrender". Article 21 ensures that time spent in detention in the requested state while awaiting surrender is deducted from the sentence, if any, imposed in the requesting state.
Article 22 deals with the important issue of specialty. As I mentioned, this term refers to the long established concept that a person may only be tried for the offences in respect of which or she was extradited or surrendered. That basic position is being maintained. However, it may be altered to the extent that the person agrees to waive the right to specialty and, as I said when dealing with Article 13, the giving of that consent has several safeguards attached to it. Specialty has long been viewed as something attaching to state sovereignty and, as a consequence, it is also necessary for the state that surrendered the person to give its consent to the rule of specialty being waived. In keeping with our view that this is a state rather than judicial function, I have ensured, by means of a special declaration, that in Ireland's case requests for the lifting of the rule will be dealt with by the Minister for Justice, Equality and Law Reform, as the central authority for Ireland, rather than the courts.
A similar situation arises under Article 23 which deals with the possibility of the person being subject to further onward extradition to a third country. As in the case of specialty, all such requests in relation to persons surrendered initially by Ireland will have to be subject to the agreement of the Minister for Justice, Equality and Law Reform. This protects Irish citizens in particular – we could not agree to having our citizens whom we had agreed to surrender to another member state being sent to another member state or third country without our agreement.
Article 23a makes provision for the handing over of property accumulated as a result of or in connection with the person's alleged activities. There are safeguards in the article to ensure, for instance, that the rights of third parties in the property are secured.
Chapter 4 covers Articles 25 to 28. I should perhaps clarify the position on Article 24. This was in the initial text as a fundamental rights safeguard clause but following the inclusion of paragraph 3 in Article 1, it was felt that Article 24 was no longer necessary. Senators will recall that Article 1(3) provides that nothing in this proposed framework decision shall relieve member states of the obligations to protect fundamental rights and fundamental legal principles.
Article 25 states that the proposed framework decision is to replace all the extradition arrangements existing between member states. It might be useful to remind ourselves again that existing arrangements within non-EU states are not affected by the proposed framework decision. I would also like to point out an important feature in Article 25(2). It allows existing bilateral arrangements to continue. In this regard, the UK authorities have approached me with a view to having discussions about whether it would be more beneficial for the United Kingdom and Ireland to continue their existing bilateral arrangements or to rely on the European arrest warrant. I will keep the House informed of developments.
Article 26 makes transitional arrangements. The new arrangements under this framework decision are due to come into operation in January 2004. Subject to the adoption of this decision, all member states will be required in the meantime to bring forth national legislation to implement the new system. That will be the case here in Ireland also. Article 27 makes provision for reports on the operation of the system, including reports to the European Parliament.
I recommend the draft decision to the House. It is a balanced and measured response on the part of the member states of the European Union to a shocking and entirely unprecedented attack on world peace and stability. It provides a comprehensive set of safeguards for any individual subject to an arrest warrant while providing society at large with a new and effective means of dealing with a most serious threat to the well-being of our democratic systems.
This is a welcome motion. Ireland signed up to the human rights convention of 1947 and agrees that the universal values of human dignity, liberty, equality, solidarity, respect for human rights and fundamental freedom is essential to democracy, and anything that impinges on those fundamental rights is a major breach of the democratic process. Ireland condemns the recent terrorist activities that have had such a major impact on civil liberties, and any motion or legislation introduced to protect citizens throughout the European Union and beyond should be welcomed.
I welcome the convention on the suppression of terrorism adopted by the Council of Europe which establishes that terrorist offences cannot be regarded as political offences or as offences connected with political offences or as offences inspired by political motives. It is vital that this House records its approval of the convention, which is before the House in the form of this motion. The same principle applies in respect of the earlier Bill.
The offences dealt with in the motion are important because they impact on the population at large or the general well-being or integrity of an individual. The offences, which include kidnapping, causing extensive destruction to aircraft, ships or means of public transport which in turn can impact on a large number of people, interfering with or disrupting water supplies, the release of dangerous substances and causing fires, explosions or floods, the effect of which is to endanger human life, relate specifically to the violation of the integrity of the individual and for that reason they are welcome.
It is important also that those who incite, aid or attempt to aid anybody who proceeds to commit these offences will be covered under this legislation and can be brought to justice. The fact that there is a common procedure among member states is welcome. Member states will co-operate on these areas and various mechanisms will be available to each of them to allow them bring to justice the perpetrators of these crimes. That is extremely welcome.
Perhaps the Minister will elaborate in more detail on the section dealing with liability of legal persons because I am not sure what that means.
Section 2 of article 9 is welcome in that if an offence falls within the jurisdiction of more than one member state when any of the states concerned can validly prosecute on the basis of the same fact, the member states concerned shall co- operate to decide which of them will prosecute. It is important that in coming to that decision, the various mechanisms and facilities in each member state will be used to proceed to take the type of action that is necessary. Which member state shall be responsible is very clear and welcome.
I would like the Minister to elaborate in more detail on article 10, which deals with the protection of victims. The article further states that in addition to the measures laid down in the framework decision on the standing of victims in criminal proceedings, each member state shall, if necessary, take all measures possible to ensure appropriate assistance for victims' families. Will the Minister elaborate on what the Council of Europe decided in regard to appropriate assistance for victims' families because there are many such victims throughout Europe and the world? What do member states propose to do to assist victims' families? It is important that victims and their families are appropriately assisted in whatever action is taken.
I note in the report from the Council of Europe that the Council reached provisional agreement on the text of the annex subject to parliamentary scrutiny reservations by the Swedish, Danish and Irish delegations and reconsultation with the European Parliament. Will the Minister elaborate on the reservations of the Irish delegation? What specific points did it make and what were the concerns raised by the delegation? Was the Irish delegation of the view that it could not implement something? I would like more detail on that.
In the times in which we live it is extremely important that there is full co-operation among all EU member states and that they bring to justice those who commit terrorist offences across member states to justice. It is equally important that member states provide assistance to victims of terrorism from states outside member states, as well as victims of major human rights violations under the United Nations charter.
I am sorry this important measure is being given such pathetic consideration. I have not read the document relating to it, although it has been placed in the Oireachtas Library where I presume it lies with EU regulations on cod, hake and monkfish. The Leader said on the Order of Business that the motion would be taken without debate, but now we find that it is absolutely vital that it should be debated.
That is not true. The House agreed to a one hour debate, with the contributions of spokespersons not to exceed seven minutes and those of all other Senators not to exceed five minutes.
I did not realise that arrangement related to these two motions. I thought it related to the previous legislation. I am sorry; I misunderstood the Leader.
This is an important EU proposal which the Minister stated will deal with human trafficking. I must travel to Moscow at the weekend for a UN conference on the trafficking of women and children. This is an extraordinarily important proposal and considerable time should have been made available to debate it because Ireland's contribution in this area is important. We introduced legislation regarding child pornography on the Internet and did well. Initially, when we said something should be done about it we were told no one would co-operate whereas nowadays everybody co-operates and most try to ensure their servers are clean. We are in a powerful position to take a lead on these issues.
I am also sorry we cannot have a debate on the illicit trafficking of drugs and radioactive materials. I would also include biological substances such as toxins, bacteria and viruses, which can also be used as weapons. I have repeatedly referred to the 1972 UN convention on biological and toxic weapons under which there is no verification protocol. The United States continues to seek such verification in Iraq, but the protocol needs to be applied in every country. The United States is the first country to suffer problems related to bio-terrorism in the form of the recent anthrax attacks. It has been repeatedly suggested that the anthrax may have been brought in from outside, but there are approximately 80 facilities in the United States where it is available. Both the CIA and FBI have quelled fears that a flask of anthrax was given to one of the suspects involved in the 11 September attacks in the Czech Republic prior to the attacks. The possibility that it was of American origin is more likely.
There is a serious problem in that an ad hoc committee of UN members, including Ireland, is trying to introduce a verification protocol to be included in the fifth review of the biological and toxic weapons convention, which is under way, but the Americans withdrew in July. There is, therefore, no possibility of introducing the protocol because unanimity is required. We could have asked the Minister to address this issue under the motion, but have not been given an opportunity because it is being rushed through. I do not know when the Taoiseach or the Minister is attending the committee and it is regrettable that most EU member states must also rush this proposal.
It is an important measure to which we could have made a more important contribution if we had been in a position to debate it properly. I apologise to the Leader for saying the motion was to be agreed without debate, but that was my understanding this morning. I did not realise it had to be passed so quickly. We dealt with little business earlier in the week and it is a great pity the motion could not have been taken then.
I welcome the motion. The Minister has made the case on behalf of the Govern ment. I will provide time during the next session in order that Senators can discuss what is raised in the debate.
The Minister has done a good job on many aspects of this issue. He appeared before the Joint Oireachtas Committee on European Affairs and said he could only provide limited information for whatever reason, perhaps entirely valid, but he has dealt with many of the issues about which I had reservations in one form or another. I am not unhappy with the proposal. I must live with the reality that we live in the European Union, which our neighbouring island still calls the European Community, even though that title is ten years out of date. It must be recognised that we have to begin to realise where we are living. I do not have a fundamental problem, therefore, with the proposed measure.
The Minister and the Government did a reasonable job in the negotiations, but I have serious reservations. It is 11.50 p.m. and we are discussing a fundamental change, which is not necessarily wrong or unwelcome, in an atmosphere where we all feel there is haste. I acquired the relevant document from the Oireachtas Library, the staff of which work hard and late, and it is 33 pages long. This framework decision must be transposed into Irish law through legislation. I take it from the Minister's somewhat enigmatic nod that I am correct.
Through this motion we are giving the Taoiseach authority when he attends the Laeken Summit later this week to agree the framework decision. That is not a bad idea because we have processed too much EU business through a post hoc approval system. We are trying to persuade the sceptical element of the public that the European Union is transparent, accountable and open. A rushed debate at 11.50 p.m. about something as complex is this is not the way to do business. The Minister would love me to say I am opposed to this in order that he could point out that Deputy Howlin is in favour of it, but I will not go down that route. How could one oppose a framework decision when legislation will be introduced subsequently? When it is introduced we will be informed that we cannot amend it because it was agreed at Laeken in December 2001.
A series of questions must be asked, however, about this measure. What does this phrase, which I have never seen before, mean: "The following offences, if they are punishable in an issuing member state by a custodial sentence of a maximum of at least three years. . . "? What is meant by "a maximum of at least three years"?
It is a contradiction.
I am good at dealing with legislation. I understand and can respond to it but I do not understand this. I understand a minimum of at least three years to mean that offences which carried sentences in excess of three were covered by it, which would be fine as we seek to exclude trivial offences. We do not want to extradite someone for stealing a loaf of bread while on holiday in the Canaries, for example.
This illustrates the problem in rushing through legislation. I accept there will be a right of judicial intervention on both sides so that people will not be taken out of this country without some judicial oversight. As I have considerable regard for the Judiciary, I have no fundamental problem with this proposal. However, we must still know what this contradictory phrase means. I do not understand but I expect the Minister, who is a lawyer, to explain it.
Without arguing with the Cathaoirleach, the allocation of only seven minutes to speak on such a complex subject makes my point precisely. I do not seek to waste time but this is too complex an issue to be rushed. Computer related crime is listed in the offences. This is an extraordinarily broad concept. Would we say typing or printing related crime? This measure should have been considered line by line by an Oireachtas committee. We hope to re-engage the people with the European project, but this is not the way to do it.
I hope the Minister will elaborate on the references to the immunities of office holders which is something we do not have. We know the circumstances in which one state declined to approve this initially before changing its mind yesterday after much pressure was applied. This leaves us in the position of not being sure if it has been approved or not. What is "immunity of office holders" as we, properly, have no such thing?
The fact that I have only five minutes reflects the points made by previous speakers. It is not long enough to discuss something as fundamental as shifting the basis on which we deal with suspects in other jurisdictions in the European Union, making provision for European wide arrest warrants and changing the surrender procedure between states. As the Minister stated, the integration of policy making and the judicial process is one of the most fundamental developments to take place. If it had not been for the intervention of the Labour Party, as he acknowledged, the various articles and agreements would have been implemented by ministerial decision.
Is this the first step in getting approval and will legislation be introduced to incorporate these provisions in Irish law? What is the standing of the approval of a motion which incorporates various provisions? If legislation follows, both Houses of the Oireachtas will have already approved the substance of this Framework Document. Such legislation would merely put it into legal provisions. I assumed that we would pass the legislation and then orders or motions would be passed to implement its provisions. Is it being done in this way so that the Taoiseach can say to his European colleagues that we are good Europeans who are strong on combating terrorism?
Are we surrendering or pooling our sovereign powers? We are surrendering them if different standards operate in different jurisdictions in the European Union, which is the case. The example has already been given of the medical procedure which is a crime carrying a 12 year sentence in our jurisdiction but which is not a crime in our neighbouring jurisdiction. We have different standards in the conduct and procedures of courts, of detention and interrogation and of imprisonment. These will all be of consequence if this motion is approved and European arrest warrants are issued.
Serious questions must be addressed. I acknowledge the Minister's work in arguing Ireland's case, particularly our constitutional position on various issues. However, we can go too far too quickly in taking measures to deal with terrorism and other serious crimes. We agree with tackling these matters but to surrender the authority and jurisdiction of our State raises other fundamental issues. I would prefer to have the time to tease those out fully and to get a clear picture of how a European arrest warrant will operate. What protections will there be for individuals? There must be guidelines on its operation. We should have had more information and time in advance to study the Framework Document. This is an artificial deadline imposed because the Taoiseach wishes to make a splash when he next meets his colleagues in Europe.
I thank all Senators from both sides of the House who contributed to this debate. Senator Taylor-Quinn referred to Article 10 and asked about the protection of victims. There is a separate EU legal instrument on this matter. In the framework decision on combating terrorism it does not arise under the European arrest warrant. I will be glad to provide a copy of the instrument on the protection of victims. She also referred to article 7, liability of legal persons. This is in the terrorism instrument which the House will be discussing immediately after this debate. Senators Taylor-Quinn and Henry referred to the whole question of parliamentary scrutiny. On the Irish reservation on parliamentary scrutiny I was concerned to ensure that the Houses of the Oireachtas would have an opportunity to examine these matters, albeit at short notice. I have also indicated that in future the framework decisions will come to the Oireachtas. The time element will be a tremendous difficulty.
We know already that the Irish Constitution provides that where we are talking about the State entering into discretions or options there is an obligation on us to discuss these matters in the Houses of the Oireachtas. If the measures are necessitated by our membership of the European Union, it is a different matter and it is covered by a different provision of the Constitution. When we are discussing discretions or options such as a framework decision of this nature there will be a difficulty in relation to time.
Invariably, the Justice and Home Affairs Council under the third pillar will discuss the relevant proposals. They may or may not reach agreement. If they reach agreement, the matter can be referred to the Houses of the Oireachtas in the usual way. In doing this the Minister of the day would be obliged to state to the European Council that he cannot accede or agree to the actual text until such time as he has the approval of both Houses of the Oireachtas. Therefore, I suppose that in the future what will occur is that the Minister of the day will signify political agreement to the text or framework decision and then the matter will come to the Houses of the Oireachtas by the Minister entering a parliamentary reservation at the Council meeting.
If the parliamentary reservation presented at the Council meeting subsequently proves to be more than a mere formality and should the Houses of Parliament or either one of them decide to negate the framework decision, it would not be possible for the Minister to proceed. This will be innovative in terms of parliamentary scrutiny of agreements reached at European level which Senator Ryan correctly states may well be long overdue, but it will cause very serious and practical difficulties. If, for example, in the context of the framework decision we are discussing here or the European arrest warrant, there was political agreement in relation to it at the European Council meeting of justice and home affairs Ministers last Thursday and Friday in Brussels—
Apart from Italy.
Italy would not accept the warrant.
We do not believe any of the nasty stories as to the reason.
I do not know why. The story advanced was that they did not agree with the list of offences. They thought that the list of offences specified in the warrant was much too exhaustive. The truth of the matter is that it left us in this position that we bring our framework decision here and let us say that Italy still had a reservation. The Taoiseach will go to Laeken on Friday and he must be in a position to signify or confirm Ireland's agreement following upon the ratification by this and the other House. If Italy was still to enter a reservation and had not pulled back in this regard this morning, it is fair to say that when the Taoiseach goes to Laeken and if there was a substantive change to the text at Laeken, it would have to come back again to the Houses of the Oireachtas.
Rightly so.
The point I am trying to make here is that the time factor that will be involved in this is something that we will have to resolve. We must co-operate across all the political spectrum and with the Independents in the House and the other House so that we can reach the necessary consensus on how these things can be dealt with in the future. We have a problem which we need to solve.
I agree with Senator Ryan. This is a healthy democratic development which means that in the future we will discuss the framework decisions in the Houses of the Oireachtas. It will give a greater level of credibility and confidence to the framework decisions if the people's representatives discuss them.
Senator Ryan asked what the position was in relation to maximum and minimum.
Maximum at least.
I suppose the straight answer is that the minimum, the lowest level, must be three years or, to put it another way, the lowest level of the maximum sentence must be three years. This concept is a means of developing harmonisation between various legal systems or, to put it another way, when we use the words "at least" in terms of longevity, maximum becomes the equivalent of minimum. That is the only way I can explain it to Senator Ryan.
It does not make sense. I would love to see the French version.
Senator Costello asked if there will be legislation. There will have to be legislation but Senator Costello is correct that the legislation will have to be within the framework decision. It is a framework, it is not definitive in terms of how the legislation will be framed. It is a guideline. The Senator is correct. Legislation will be constrained by virtue of the fact that it must come within the parameters of the framework decision.
Senator Cassidy also contributed constructively to the debate. I thank the Senators for their contributions.
