European Arrest Warrant Bill 2003: Second Stage.
Question proposed: "That the Bill be now read a Second Time."
Minister of State at the Department of Justice, Equality and Law Reform (Mr. O'Dea): I am pleased to present to this House today the European Arrest Warrant Bill 2003 which gives effect to the provisions of the framework decision on the European arrest warrant and will, when enacted, replace, as and from 1 January 2004, the existing extradition arrangements between Ireland and other member states of the European Union. Before I come to deal with the provisions of the Bill, I wish to set out the background to the adoption of the framework decision on the European arrest warrant, a copy of which is attached as a Schedule to the Bill.
One of the key objectives of the European Union is the creation of an "area of freedom, security and justice". The European Union is built on democratic principles and the rule of law. At its core is the free movement of persons, capital, goods and services. The citizens of the member states have benefited enormously from these freedoms and the opportunities they have created. However, those freedoms and opportunities must be protected from those who would abuse them in order to evade justice. The reforms introduced by the Treaty of Amsterdam and the additional impetus given by the 1999 Tampere European Council highlighted the importance of developing within the justice and home affairs area measures that protected the Union and member states against such violations.
The framework decision on the European arrest warrant owes its origins, in particular, to the Tampere European Council which endorsed the principle of mutual recognition which, in its view, should become the cornerstone of judicial co-operation in both civil and criminal matters within the European Union. It also recognised the need for extradition arrangements that would support and reflect the shared values of member states and that would protect their citizens from the scourge of cross-border crime. The framework decision is, therefore, a practical expression of the desire of member states to improve the efficiency and effectiveness of extradition arrangements in a way that reflects the unique relationships that form the basis of the European Union.
As mentioned, the framework decision on the European arrest warrant will replace the existing extradition arrangements among the member states of the European Union. The existing arrangements are, in the majority of cases, based on the Council of Europe's 1957 European Convention on Extradition. Although all of the member states are parties to the 1957 convention, the extradition arrangements in place reflect certain variations based on historical and other factors. Such variations can be found in the arrangements in place in the case of the Nordic and Benelux states as well as between Ireland and the United Kingdom.
I will now outline some of the main characteristics of the framework decision and the way it differs from existing arrangements. However, as an overall comment on the framework decision, it is important to bear in mind that it represents a careful balance between, on the one hand, the need for a more efficient system of extradition and surrender of persons who have been convicted or who are being sought for prosecution and, on the other, the provision of safeguards to protect the rights of the individuals concerned. With that in mind, I will first highlight the major new features and will then outline the safeguards that will apply.
Historically, extradition has been regarded as an aspect of a state's exercise of its sovereignty and, as a result, extradition arrangements entailed a significant role for the Executive arm of the state in question. The framework decision replaces in large measure, the inter-state aspects of extradition by a system of surrender based on the recognition by the judicial authorities of one member state of orders issued by the judicial authorities in another member state for the arrest and surrender of wanted persons. In future, the role of the executive agencies of the state will be to provide administrative and technical support for this inter-court system. This will be done through the central authority in the state. In Ireland, the central authority will be the Minister for Justice, Equality and Law Reform and his or her Department. Therefore, the new system can, to a significant extent, be described as an inter-court system.
Current extradition arrangements have regularly been criticised for being slow, often taking several years to complete. The framework decision addresses these concerns by the introduction of timeframes for the taking of decisions on European arrest warrants. It is proposed that a decision on whether to surrender the person should normally be taken within 60 days of the person's arrest or within a further 30 days where the initial period cannot be met. These timeframes are reflected in the Bill. However, I stress that they are timeframes, not time limits. By that, I mean they are indicative rather than prescriptive because, under the doctrine of separation of powers, for instance, in this State, it would be inappropriate for the Executive or the Oireachtas to seek to limit the exercise of judicial discretion through the imposition of strict time limits when dealing with cases before the courts.
Traditionally, many states refused to extradite their nationals and considered certain offences as being non-extraditable. The framework decision does not provide for exceptions or exclusions based on, for example, categories of offences or offenders. There are, therefore, no provisions permitting refusal to surrender on the grounds that the person being sought is a national of the executing member state or that the offence falls into a particular category of offences such as revenue or political offences. This is a reasonable approach when we recall that we are dealing in this context with close allies who share our democratic values and respect for the rule of law. Ireland never had difficulty in principle with the extradition of our nationals providing only that the arrangements were reciprocal. We have also, over many years, greatly curtailed the political offence exception and changed our law in 2001 to permit extradition for revenue offences.
The last, but by no means least, of the major changes I wish to highlight relates to the dual criminality requirement. This is the requirement which provides that a person may be extradited to face prosecution or service of a sentence in another state only where the offences concerned are offences under the laws of the issuing and executing states. The framework decision introduces a significant curtailment of this requirement. Under the arrangements now being introduced by the framework decision and this Bill, surrender may be sought for offences carrying a penalty of 12 months imprisonment or more under the law of the issuing member state provided also that the alleged offence corresponds to an offence under the law of the executing member state. In other words, the dual criminality requirement still applies. However, the framework decision also provides that where the alleged offence comes within any of the 32 categories of major offences listed in Article 2.2 of the framework decision and it is an offence that carries a penalty of three years imprisonment or more under the law of the issuing member state, then the position under the law of the executing member state does not arise for consideration by the executing court. In other words, the dual criminality requirement is dropped in those cases.
This element of the framework decision presented some difficulty for several member states, including Ireland. It represented a significant departure from current law and practice. However, on examination of the list of offences in Article 2.2 – generally referred to as the "positive list"– one will find that, leaving aside the way they are described, all of them are already regarded as serious offences under our law. Therefore, as they are already serious offences under our law, dropping the dual criminality requirement is not as critical as might appear at first glance.
I would like at this stage to draw the attention of Senators to the safeguards contained in the Bill. These are designed to protect the rights of the arrested person. Most of them are found in the framework decision and are repeated in the Bill. I will also be drawing attention to the additional safeguards arising from the statement made by Ireland when the framework decision was being adopted.
Dealing first with the provisions of the framework decision, it sets out general principles on which the safeguard provisions are based. In addition, it contains specific provisions that list mandatory and discretionary grounds upon which requests for surrender can be refused. It also lists guarantees that may be sought before a person is handed over. On the general principles, Recital 12 affirms that the framework decision respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union. Article 6 states,inter alia, that, “the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms.” Article 1.3 of the framework decision also refers to Article 6 of the Treaty on European Union and provides that, “the framework decision shall not have the effect of modifying the obligations to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.” Recital 12 goes on to state that, “nothing in this framework decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of those reasons.”
Recital 12 adds that the framework decision "does not prevent a member state from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media." Recital 13 is also important. It states that, "no person shall be removed, expelled or extradited to a state where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment." Section 37 reflects the provisions in Article 1.3 and Recitals 12 and 13.
On the specific protections and guarantees, Article 3 of the framework decision lists mandatory grounds for the non-execution of European arrest warrants. A person may not be surrendered if he or she has been the subject of an amnesty in respect of the offence in question. A person who has been finally judged and has completed any sentence imposed in a member state or is no longer required to serve it in respect of the offences in question may not be surrendered. A person who cannot be held criminally responsible for the offence in question, by virtue of his or her age, may not be surrendered. Sections 39, 41(1) and 43 reflect these provisions.
Article 4 of the framework decision lists grounds upon which member states may rely as grounds for non-execution of European arrest warrants. Several of these are included in the Bill. Section 38 implements Article 4.1 and requires that, with the exception of the offences on the positive list, the offences specified in the warrant must correspond to offences under Irish law with a necessary qualification to allow for variations in the designation of certain revenue offences. Section 38, therefore, implements the dual criminality requirement for offences other than those covered by the positive list.
Section 42 implements Articles 4.2 and 4.3 and provides that a person may not be surrendered where he or she is being proceeded against in the state for the same offence or where it has been decided not to proceed or to halt proceedings against the person in the state in respect of the offence on which the warrant is based. Section 40 implements Article 4.4 in prohibiting surrender where a prosecution for the same offence would not be permitted in the state by virtue of lapse of time. Section 41(2) implements Article 4.5 by prohibiting surrender where the person had been finally judged in a non-EU state and had served the sentence imposed, or was no longer required to serve it. Section 44 implements Article 4.7 and prohibits surrender where the offence occurred on the territory of the executing state or outside the territory of the issuing and executing states and the offence is one over which the executing state does not have jurisdiction.
Section 45 provides that where the person had been triedin absentia, surrender may be made subject to guarantees from the issuing state that he or she will have an opportunity of a new trial and being present at that trial.
Article 11 contains the important provision that a person must be informed of the right to legal representation and interpretation services. A person arrested under either section 13 or section 14 of the Bill must be informed of these entitlements.
Article 12 provides that a person may be remanded on bail pending a decision on his or her surrender. Sections 13(5) and 14(7) provide accordingly. A person who consents to surrender, as provided for by Article 13 and section 15 of the Bill, may withdraw that consent. In such cases the person is then entitled to a full hearing of the surrender application. Before accepting that the person has consented to his or her surrender, the court must be satisfied that the consent was voluntary and informed.
Article 14 provides a guarantee that an arrested person has a right to a hearing before being surrendered. This is given effect by sections 15 and 16 of the Bill.
Section 36 gives effect to Article 26. It ensures that, in the case of persons returned to Ireland, any time served in custody in the executing state pending a decision on the request will be taken into account in any sentence to be served here.
A person surrendered by Ireland to another member state on foot of a European arrest warrant may not be surrendered or extradited by that member state to either a third member state or a non-EU state without the consent of the Minister for Justice, Equality and Law Reform. Sections 23 and 24 make provisions in this regard.
I am sure Senators will agree that the safeguards I have just outlined are real and comprehensive. However, before leaving this topic, I draw attention to the statement Ireland made when the framework decision was being adopted. The text is as follows, "Ireland shall, in the implementation in domestic legislation of this Framework Decision provide that the European arrest warrant shall only be executed for the purposes of bringing that person to trial or for the purpose of executing a custodial sentence or detention order". The important point to note is that in cases where the person has not yet been convicted, the emphasis is on ensuring he or she is being sought to face trial. This is designed to ensure persons are not surrendered for investigative purposes, with the possibility of prolonged detention before a decision is taken on whether to charge him or her.
Section 11(3) gives effect to Ireland's statement. It requires that the issuing judicial authority must provide written undertakings that the warrant is for the purpose of the person being charged with and tried for the offence specified. In addition, it requires that there must be written confirmation that the person has been charged and that a decision to bring him or her to trial has been made or, alternatively, that a decision has been taken in the issuing member state to proceed to charge and try the person once he or she has been returned to that member state.
Still on the question of safeguards, I mention the position in relation to the accession states. As the House will be aware, eight states from central and eastern Europe, as well as Cyprus and Malta, will be joining the European Union with effect from 1 May 2004. They will be expected to implement the framework decision as part of theacquis they will be taking on board as and from that date. However, given the importance and sensitivity of the justice and home affairs issues, a special safeguard clause has been inserted into each of the accession treaties. The clause provides that the Commission should monitor implementation of framework decisions by the new member states. It also provides for remedial actions, including the suspension of the operation of framework decisions by those new member states in certain cases. This measure should allay any concerns about the implementation of measures such as the European arrest warrant in the early years of EU membership by the accession states.
The new system is designed to be in large measure an inter-court system. Nevertheless, the framework decision permits each member state to nominate a central authority. Its role is to provide administrative and technical assistance. It will also liaise with relevant authorities in other member states in connection with arrangements for the handing over of wanted persons and property. The Bill provides that in Ireland the Minister for Justice, Equality and Law Reform and his or her Department will perform the central authority function. An amendment introduced on Committee Stage in the Dáil provides that the Minister for Justice, Equality and Law Reform must make a report to each House of the Oireachtas on the operation in the preceding year of Part 2 of the Bill.
The High Court will be the judicial authority with responsibility for the execution of European arrest warrants received by Ireland. Any Irish courts having jurisdiction in criminal matters may issue a European arrest warrant, on application from or on behalf of the Director of Public Prosecutions, where a person now in another member state is facing charges or is required to serve a sentence in Ireland. In all cases the warrants will be transmitted, inwards and outwards, by the central authority. European arrest warrants may be in their original form or sent by fax or electronically. Electronic transmission may in due course be via the Schengen information system, SIS. Ireland has opted to participate in elements of this convention and arrangements are being made to establish the necessary systems and procedures.
Section 13 provides that following receipt of a European arrest warrant, it will be brought to the High Court for its endorsement. Endorsement of the warrant by the High Court will have the effect of authorising the arrest of the named person. The powers of the Garda to make an arrest in these circumstances are provided by section 25. They include the power to enter premises to effect the arrest and seize goods and property considered to be connected with or the proceeds of the offence specified in the European arrest warrant.
The possibility of an arrest where the Garda is satisfied, based on information available on the SIS, when the system is up and running, that a European arrest warrant exists but has not yet been received is provided for in section 14. The information on the SIS must indicate that, where the person has not yet been convicted, he or she is to face trial, rather than being sought for investigative purposes. An arrest under section 14 must be based on a reasonable belief that the person will leave the State prior to the European arrest warrant being received here. Where there are no grounds for such a belief, the question of an arrest must await the arrival of the European arrest warrant. In those circumstances the procedures I have outlined for section 13 apply. In cases of arrests under section 14 the European arrest warrant must be produced within seven days of the arrest, otherwise the person must be released.
A person who has been arrested, whether under section 13 or 14, must be brought before the High Court as soon as possible after his or her arrest. The court may remand the person in custody or on bail and will also fix a date for the full hearing of the application. However, a person has a right to consent to surrender at this or any later stage. Section 15 deals with such cases. In these cases a full hearing will not be required if the court is satisfied that the person has given his or her consent voluntarily and in full knowledge of the consequences. As I indicated, a person who has consented may withdraw that consent. Withdrawal of consent will give rise to the need for a full hearing.
Section 16 provides that the High Court may, after satisfying itself that the person before it is the person named in the European arrest warrant and after hearing the application, make an order for the person's surrender. However, it may do so only where it is satisfied that all the provisions in the Bill are complied with. There is a stay of 15 days before the order takes effect and the person will normally be surrendered within a further ten day period. Upon making the order, the court must remand the person in custody and inform him or her of the provisions of Article 40.4.2º of the Constitution which allow forhabeas corpus applications. Section 16(12) also provides for appeals on points of law to the Supreme Court against the High Court's order.
Section 22 deals with the rule of specialty. This rule provides that a person who has been extradited or surrendered to another state may be proceeded against in that other state in respect only of the offence or offences for which he or she was extradited or surrendered unless the consent of the extraditing country has been previously obtained. This remains the basic position but certain limitations are introduced. The framework decision and the Bill provide that a person may be proceeded against for offences other than those for which he or she was surrendered where such offences attract financial penalties only or where a sentence of imprisonment will not arise. Neither will the rule apply where the person in question consents, either before or after his or her surrender, to being proceeded against for other offences. In both cases the court must satisfy itself that any consent given has been or will be given freely and in awareness of the consequences. As is the case under current extradition rules, specialty will not be applied in cases where the issuing judicial authority requests the central authority in this State to waive the rule and the Minister agrees to do so.
Sections 23 and 24 provide that a person who has been surrendered on foot of a European arrest warrant may not be surrendered to a third member state or third country, a non-EU state, unless the person gives voluntary and informed consent or unless the Minister in this State agrees to the onward surrender, having regard to the safeguard provisions in Part 3 of the Bill and the framework decision. In cases where the request is for the extradition of the person from the member state to which he or she has been surrendered to a non-EU state the High Court will also be required to give its consent. It may do so only where it is satisfied that the requirements of the Extraction Act 1965 are met.
Sections 29 and 30 set out the procedures and criteria to be applied when there are several European arrest warrants for the same person but from different member states or where there are European arrest warrants from one or more member states and extradition requests from one or more non-EU states.
Sections 31 to 36 deal with the arrangements for the issuing of European arrest warrants by Ireland. Section 33 provides that applications may be made to any court having jurisdiction in criminal matters by or on behalf of the Director of Public Prosecutions. The courts in question are the District and Circuit Criminal Courts, the Central Criminal Court and the Special Criminal Court. A European arrest warrant may be applied for where a warrant for the arrest of the person has already issued in the State and the person is not in the State. The warrant must be in respect of an offence having a penalty of 12 months' imprisonment or more or, where the person has already been convicted, a sentence of four months or more has to be served. The court that issues the European arrest warrant will be required to indicate whether the warrant is in respect of an offence that comes within the "positive list", namely, an offence listed in Article 2.2 of the framework decision that carries a penalty of three years' imprisonment or more under Irish law. The executing judicial authority in the other member state will be obliged to accept that certification and the question of the dual criminality of the offence shall not be considered further. As I indicated, the reverse applies in the case of European arrest warrants that are to be executed in this country.
I referred to the guarantee in section 36 to the effect that a person who is detained in custody in another member state while the European arrest warrant issued by Ireland is being processed in that other member state shall be entitled to have that period of detention taken into account when determining, following surrender, the period of sentence to be served in Ireland.
Part 3 of the Bill refers to the safeguards. I do not propose to cover this ground again but it must be emphasised that every application that comes before the High Court will be subject to these safeguards, and no application for a surrender on foot of a European arrest warrant may be granted unless and until those safeguards are satisfied.
Part 4 contains miscellaneous amendments to our existing extradition law. As Senators will be aware, the Extradition Act 1965 contains the main provisions. It has already been amended on a number of occasions.
The immediate purpose of the amendments under discussion is to ensure that extradition arrangements with the Isle of Man and the Channel Islands can continue to operate. Those territories will not be operating the framework decision on the European arrest warrant and it has been agreed with the UK authorities that extradition arrangements with those territories should, instead, operate on the basis of the European Convention on Extradition 1957.
The agreement with the United Kingdom on future extradition arrangements with certain UK territories was part of a wider discussion with the UK authorities on arrangements to apply once the European arrest warrant enters into operation on 1 January next. Article 31.2 of the framework decision deals with circumstances where there are bilateral arrangements in force, such as the "backing of warrants" arrangement we have with the United Kingdom at present. The article states, "Member States may continue to apply bilateral or multilateral agreements or arrangements in force when this Framework Decision is adopted in so far as such agreements or arrangements allow the objectives of the Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of European arrest warrants". This is the legal test to be applied to any existing arrangements.
It has been agreed with the UK in respect of the application of these criteria that the existing "backing of warrants" arrangement does not satisfy the legal test in question and will therefore be replaced from January next with the European arrest warrant.
Part III of the Extradition Act 1965 provides the legal basis for the "backing of warrants" arrangement. The Bill now provides for the formal repeal of Part III. The UK legislation on the implementation of the framework decision has also provided for the formal repeal of its legislation on the "backing of warrants" arrangement, namely, the Backing of Warrants (Republic of Ireland) Act 1965.
Subsections 47 (b) and (c) amend subsections (1A) and (1 B) of section 3 of the 1965 Act, as inserted by the Extradition (European Union Conventions) Act 2001.
Section 50 amends the procedural requirements in section 10 of the Extradition (European Convention on the Suppression of Terrorism) Act 1987 for the laying of orders before each House of the Oireachtas. It is proposed that orders shall take effect 21 days after their being laid before the Houses unless they are annulled. The orders under section 10 of the 1987 Act are for the purpose of extending the provisions of that Act to apply between Ireland and countries that are not parties to the European Convention on the Suppression of Terrorism. The amendments bring the procedures under section 10 into line with the amendments to section 4 of the 1965 Act, introduced by section 21 of the 2001 Act.
Let us consider some of the amendments made by the Dáil. A new section 3 was inserted providing for the designation of member states for the purposes of the European arrest warrant by the Minister for Foreign Affairs, thus ensuring Ireland can operate the new systems on a reciprocal basis with those other member states that have enacted the necessary legislation. A new section 9 was inserted, clarifying that the High Court will be executing judicial authority in the State. Under section 12, there is now a provision allowing for the possibility of receiving European arrest warrants in a language other than Irish or English. Under section 15, a person must now be informed by the court at the time of making the surrender order of his or her right to make a complaint under Article 40.4.2º of the Constitution, which provides forhabeas corpus arrangements. New sections 17, 18 and 19 were inserted, which deal, respectively, with European arrest warrants that relate to more than one offence, postponement of surrender and conditional surrender. Section 20 now contains subsections dealing with affidavit evidence. A new section 32 is designed to assist Irish courts that are issuing European arrest warrants by enabling offences under Irish law to which Article 2.2 of the framework decision applies – the so-called “positive list”– to be identified in regulations the Minister may make.
Further amendments to Part 4 of the Bill, amending existing extradition laws, were also accepted in the Dáil. A new section 49 was inserted providing that the Minister for Foreign Affairs, after consultation with the Minster for Justice, Equality and Law Reform, will in future make orders under section 8 of the Extradition Act 1965. The previous position was that the Government made such orders. As I stated, a new section was inserted providing for the repeal of Part III of the Extradition Act 1965. This provided for the backing of warrants arrangements we operated with the United Kingdom. This arises since the European arrest warrant replaces all existing extradition arrangements, including the backing of warrants arrangements with the United Kingdom.
I am satisfied this Bill represents a major development in our relations with other member states of the European Union and a major step forward in our extradition arrangements. I hope its significant proposals will meet with the approval of all Senators and I commend it to the House.
Ms Terry: I welcome the Minister of State and thank him for his comprehensive speech. I have not much to say on this Bill because I agree with it in principle. However, I will table some amendments for Committee Stage.
Member states of the European Union are growing closer and it is to their benefit that they can work in close co-operation to afford greater protection to us all and to ensure effective prosecution and policing of crime in the Union. The measures in the Bill are a result of the atrocities of 11 September 2001, which made us all realise that no country is an island and that we have something to gain from co-operating with one another.
The Bill will streamline the extradition process and make it work better. Although the Minister of State has provided many safeguards regarding people's rights, the Human Rights Commission expressed the view to the Minister that the framework decision is based on a flawed presumption of effective and equivalent protections of accused persons' rights between EU member states and that the original scheme of the Bill paid insufficient regard to the protection of human rights. Moreover, it stated that the Bill, in spite of its safeguards, is still likely to diminish constitutional protections regarding extradition. I listened very carefully to the Minister of State's description of all the safeguards provided. However, does he now believe the Human Rights Commission will have no complaint or concern about the protection of human rights?
I question the way we deal with Bills before a recess, particularly this Bill, which passed through the Dáil last night. I believe officials were working on it late into the night as a result of amendments made in the Dáil. Sufficient time should be allowed to consider a Bill such as this. Why are we dealing with it at this late hour although it was published some time ago? It has been around for some time and many changes have been made to it. If we do not enact this legislation before 1 January 2004 what will be the repercussions for Ireland? Will any other member states not have this enacted by 1 January 2004?
Mr. Kett: I welcome the Minister of State and thank him for his presentation on a very important Bill. As a consequence of this Bill we no longer have to go through the formal extradition procedure when trying to bring someone to a criminal prosecution or custodial sentence. Every Member and everyone we represent will remember the outrageous events of 11 September 2001, when we were shocked to the core by how vulnerable we would be to a terrorist attack. Before our very eyes we saw the greatest nation on earth brought to its knees by terrorists and the impact of that was enormous, not least on the poor families of those who died. It also had a significant effect on the world economy, with insurance companies using it as a yardstick by which they increased insurance costs. I have seen this in my own business, where insurance costs have gone from £43,000 to €156,000 in three years. When the circumstances of a commercial enterprise do not change, one wonders why insurance costs should rise like that. We do not know the full economic effects, such as job losses in small companies as a result of such companies being unable to insure themselves. Our tourism industry has also been badly affected, although we hope it is recovering, and pension funds and other investments have also suffered.
The Bill will bring greater harmonisation and co-operation in our efforts to combat terrorism and obviously all countries will benefit mutually from that. We know terrorist acts are committed by international gangs based in several countries, with those gangs exploiting the logistical benefits of operating in different countries. Those investigating terrorist crimes are hindered by the fact that we do not have a communal law and the current situation differs widely from one member state to another. Most countries do not have specific rules about terrorism, with terrorist acts often punished as offences under ordinary law. One of the key objectives of the EU was the creation of freedom to move and do business and all citizens have benefited from that. However, it has also been used by criminals who have used that freedom to perpetrate terrorist violence and run drugs.
This is not the first occasion on which we have declared war on these criminals but I am glad the Minister of State said there are protections built into the Bill to address human rights concerns. If individuals are held in custody and extradited under the new system they will get credit advantage as a consequence and there are also other safeguards in the Bill. This shows that while the legislation squeezes these people, it also takes due note of individuals' legal rights.
That this mechanism can be operated between judicial systems rather than the bureaucracy of State will speed up operations tremendously. The Minister of State referred to extradition cases which have gone on for years and thankfully this framework decision will change all that. The Minister of State mentioned the timeframe of 60 days, with an additional 30 days allowed if needed, and that will give greater confidence and satisfaction to those operating at the coalface. He said this is not a time limit but that those working to catch these terrorists know proceedings will not go onad nauseum will give them a certain amount of confidence in the system.
I have always been an advocate of the European Union and I have seen nothing in recent times to change my mind about it. As with our own domestic laws, there are times when some pain is involved but we must take the rough with the smooth and be positive. The Minister of State said certain other countries have signed up to this measure in their domestic laws but some have not. Will we have a situation where some countries seek a watered-down version of this Bill, while other countries do not come on board at all? If so, will we exclude them from our obligations under this legislation? If I were to be negative I could look at our nearest neighbour across the water and wonder about political crimes. There has been a severe lack of co-operation with that jurisdiction in the past and there were high profile miscarriages of justice in the past which I could mention. I hope the Bill copperfastens this situation to prevent any repetition in this area.
The Minister of State said the High Court would operate this system, which is good. What happens in the case of someone appealing a case that the High Court is adjudicating on? Is it possible for them to appeal to the Supreme Court? What kind of timeframe would that involve? It would certainly rule out the 90-day provision. I am sure this will not happen on a widespread basis, but if cases go to the Supreme Court on appeal, will they get priority over the domestic cases which are already there?
We dealt recently with the Criminal Justice (Joint Investigation Teams) Bill, arising from a framework decision, which provides for the setting up of joint investigation teams for specific purposes and limited periods to tackle criminals across borders. The Criminal Justice (Illicit Traffic by Sea) Bill was another fine Bill and I hope when the gang lords and drug barons operating the system to their benefit see that legislation and the arrangements being set up between states, they will see the error of their ways. That is cloud cuckoo land but they should realise the game is up for them and that we are on their case.
The Minister of State has found a reasonable balance in this legislation. I wish it well in its passage through the Seanad and even though some amendments have been tabled, it will get a fair hearing. I also wish him well in the other House.
Mr. O'Toole: I welcome this legislation and am delighted it has come to the House, even at this late stage. I listened with some amusement to the Minister of State's presentation because I recall that the Minister for Justice, Equality and Law Reform showed a lack of enthusiasm for the first proposal when it was mentioned in Europe some years back. I am not sure if he was Minister at the time. He took a strong stand on a number of issues at an early stage of the European discussion and that is as it should be. It gives me a sense of protection to know that Ministers will examine carefully the question of human rights and the levels of discretion which should be maintained and retained by member states. This legislation does that.
The issues involved here should be addressed in a wider context. That context would include the UN charter on human rights. We should first examine whether this legislation conforms with or offends that charter in any way. We should also check it conforms with the rights to which we are entitled as Europeans and with our constitutional rights. Those three benchmarks or guidelines answer the questions about the legislation and it is from there we should examine the small print.
It is within the three issues of the UN, the EU treaties and our Constitution that we will find our space. As I understand the legislation, nothing in it causes any offence to any of these three guidelines. The people want to be reassured on that and to know that in the context of the legislation there will be no hiding spaces or corners in Europe in which criminals, gang lords and others can hang out and laugh at the rest of us, as has been happening.
I would like to make a proposal which I hope can be taken on board. We should convince our colleagues in the United Kingdom to become part of the Schengen agreement which allows free movement of people throughout the European Community, as is supposed to be allowed under the Treaty of Rome and which is the case throughout most of Europe. It knocks one back to arrive at a European airport from Ireland and have to go through the same procedure of entry as if one was from a non-European country. This is as a result of the UK not yet being part of the agreement. It would cause us serious problems to move on this issue without the UK moving with us. On all other issues we should follow our own agenda but I recognise that with the North-South issue and our common visa arrangements, it is important that we do not move without the UK. We must convince it on this matter. Quite a sum of money is spent in places like Dover, effectively to protect us against ourselves as Europeans. We should use that money on our borders to ensure that European policing is completely co-ordinated.
I do not think the Minister of State dealt with the issue of the level of co-ordination among European police forces and the free exchange of appropriate information, although the matter has been discussed here previously. There should be support for Interpol at the European level. For example, we spoke this morning about vetting people who work with children. I have seen this matter from all sides. I know of a man who could not get a job in the UK because he could not pass the vetting procedure who got a job in Ireland. I also know of a man who could not get a job in Ireland as a teacher who became a schools' inspector in the UK. We see odd situations because of the lack of a free flow of information. I realise I have gone beyond the issue of the arrest warrants being discussed today. However, one matter leads to the other. We must provide intelligent, appropriate and responsible access to information in order to close access to hiding places.
I heard the Minister speak on a number of occasions recently, and in committee last week, about the question of DNA testing and the retention of results. I concede there is a human rights issue at stake here but there is also a security issue involved. I do not have the answer or solution to this problem and am uncomfortable with the idea of stored information. On the other hand, an enormous amount of personal information is held on file already and this would not add much to it. Part of the problem with the size of the new EU will be that people will be able to take up new identities far too easily, making them difficult to trace and easier for them to escape the long arm of the law.
This is looking at the issue from a broad general point of view whereas what we are concerned with today are specifics. No right thinking citizen of any European country would be able to live with the thought of a mass murderer or child abuser being able to escape prosecution and the rigours of the law on the basis that they could not be arrested for some "technical" reason. We must look at the issue before us and realise that we still have decisions to make ourselves within this proposal. We must retain discretion and run our system but we must do it in the context of what is being sought. This proposed legislation is a good balance and I support it.
Ms Tuffy: I thank the Minister of State for his presentation. While this type of legislation is necessary, I would like to raise a number of concerns. I support Senator Terry's concern at the speed with which we are dealing with this legislation. I had to struggle to get information in time for this debate. For example, I could not get access to the Dáil Committee Stage debate. Normally, when legislation comes here for Second Stage debate, I can access it. All I know of the amendments made is what the Minister of State said in his speech.
There is often good reason for processing legislation speedily and I have been happy to facilitate this and not demur if it is necessary, particularly if the reason for change is only technical. That is not the case now. It is inappropriate to process this legislation so quickly because it deals with people's rights and dealings with the legal system. It could also impact on human or constitutional rights and the right to fair procedure. This type of legislation should be dealt with in a more considered manner.
There is no reason it could not have been given a more considered hearing. The original Bill was published in July. I know my colleague, Deputy Costello, highlighted that a different version of the Bill, many pages shorter, was published then. However, there was still enough time to have a more considered debate on the legislation. We will not have much time to process amendments through the various stages tomorrow and this is not right for such important legislation.
The Minister of State outlined how the legislation implements the European framework decision, an issue raised by my colleague in the Dáil on Second Stage. The Minister for Justice, Equality and Law Reform, Deputy McDowell, has often expressed a protective attitude towards our criminal justice system and a reluctance to go down the road of harmonising our criminal code. During his visit to the House last week, Mr. Brian Crowley, MEP, expressed similar concerns. On the basis of my own experience of Irish law, I also share those concerns, although I am not convinced either way. The approach in the Bill is similar to that of many other Bills dealing with the implementation of the European framework decision – essentially, such legislation comes to us in the House as afait accompli.One of the suggestions brought forward by Deputy Costello in the Dáil was that the pre-framework stage should involve much more scrutiny by the Houses of the Oireachtas. I understand from him that his predecessor as Labour Party spokesperson on justice matters was only given a copy of the framework document which gives rise to legislation such as this Bill a very short time before it was debated in this House. A more protective approach is necessary on legislation of this nature arising from EU directives. Deputy Costello has made the point in the other House that this legislation provides for court orders issued in other jurisdictions which may have different criminal justice systems which might not have similar safeguards. As I said, the Minister for Justice, Equality and Law Reform has expressed those concerns. We should, therefore, take a cautious approach to legislation of this type.
Reference was also made to the issue of dual criminality. I regard it as a major departure that a person could be extradited from this country on the order of another country which had different legislation. There is also an issue of constitutionality. Although there is a provision that the Bill will not override our constitutional processes, there may well be constitutional challenges to it. That is another reason for very careful consideration of it. The Labour Party submitted a number of amendments during its passage through the Dáil. I will bring forward amendments on Committee Stage in this House tomorrow.
Minister of State at the Department of Justice, Equality and Law Reform (Mr. O'Dea): I thank Senators for their very constructive and helpful comments. Senator Terry raised a specific question about the Human Rights Commission, to which Senators Tuffy and O'Toole also referred. The Minister paid close attention to the commission's comments and had them examined in detail during the preparation of the Bill. The Minister and I, as far as possible, having regard to the requirements of the framework decision, have taken the commission's views into account in preparing amendments which have been accepted in the Dáil, especially in dealing with time limits for the surrender of arrested persons. As a result, the High Court will now be required to notify the person to be surrendered of his or her rights to bring ahabeas corpus application. This should ensure that where there is an overly long delay in arranging for a person's surrender, the court will be in a position to give him or her an appropriate remedy. The relevant amendment in the Dáil was to take account of the comments of the commission.
Senators Terry, Kett and others asked what would happen if some member states did not sign up before 1 January 2004 and how many had done so. I am advised that a number will not be in a position to operate the new arrangements on 1 January but most of those have indicated that they will be in a position to do so within a very short timeframe.
While it is not possible to give a definitive opinion at this stage on the effects of non-implementation, the matter is being examined in Ireland and at EU level. It may be the case – this is my personal view – that the current arrangements based on the 1957 Council of Europe convention on extradition will continue to apply until the relevant parties to any request are in a position to operate the European arrest warrent. In other words, the new arrangements will operate between member states which have signed up to them while the old arrangements will apply in situations where only one of the member states concerned has signed up.
On Committee Stage in the Dáil a new section 3 was added to the Bill. This will enable Ireland to operate the new procedures on a reciprocal basis but only with those member states which have also implemented them in their national legislation. The member states concerned will be designated in orders to be made by the Minister for Foreign Affairs. The United Kingdom has already enacted its legislation and will be in a position to operate the framework decision with all other member states which have done likewise. Accordingly, the new arrangements will apply between Ireland and the United Kingdom as soon as Ireland has enacted the legislation.
The member states which have enacted the legislation are the United Kingdom, Spain, Portugal and Denmark. Those expected to enact it before the 1 January deadline are Belgium, Sweden, Finland and, it is hoped, Ireland. The position of other member states is as follows: The Netherlands has indicated that it will have the legislation in place by the end of January; France and Austria will do so by February; Luxembourg by February or March; Germany by spring 2004 at the latest; Greece during January and Italy by the end of March. That is the current position.
I share Senator O'Toole's view on the need for co-ordination of information between police services. Europol is an information sharing mechanism while Eurojust facilitates prosecutions between countries. There are ongoing informal meetings between representatives of various police forces throughout Europe with a view to enhancing the arrangements for sharing information between member states.
I have covered the main points raised. As Senators will be aware, Committee Stage will be taken tomorrow. Either the Minister or I will be here to deal with the amendments which will provide an opportunity to look at the Bill in more detail. I take the point about the time at which the Bill is being introduced. However, I have not got an explanation as to the reason it has been brought forward at the end of the term. Perhaps there were difficulties in preparing certain aspects – I do not know.
I regret that Senator Tuffy did not manage to catch sight of the Official Report of the Committee Stage debate in the Dáil. That information is rather important, to say the least, for an Opposition spokesperson in the Seanad, particularly when new amendments are being introduced by the Government on Committee Stage. I will certainly pass on the Senator's comments to the Government Chief Whip.
In thanking both Houses for their co-operative approach, I also sincerely thank my officials from the Department of Justice, Equality and Law Reform who worked long hours late into the night and strove mightily to enable us to reach this position. In view of their hard work, were it not for the fact that we are in the august surroundings of the Seanad, I would invite a round of applause for them but obviously that is not permissible.
Question put and agreed to.
Acting Chairman (Dr. Henry): When is it proposed to take Committee Stage?
Mr. Kett: Tomorrow.
Committee Stage ordered for Friday, 19 December 2003.
Sitting suspended at 12.40 p.m. and resumed at 2 p.m.