I welcome the Minister and his officials to the meeting to discuss the motion concerning the treaty between Ireland and the United States of America on mutual legal assistance in criminal matters, which was referred to the select committee on Tuesday, 13 November 2001.
Treaty on Mutual Legal Assistance in Criminal Matters.
I thank the select committee for dealing with this resolution in such a timely manner.
In today's society of freedom of movement and high tech telecommunications co-operation between states worldwide has become of great importance in the fight against crime, particularly serious transnational crime such as terrorism, drug trafficking, fraud and organised crime generally. We need look no further than the recent tragic events in the United States of America to see how international co-operation has become a vital element in co-ordinating efforts to ensure those guilty of such heinous acts are brought to account for their actions.
The bilateral treaty we are discussing, while not specifically related to terrorism, is another step forward in the building of an international platform upon which co-operation in mutual assistance in criminal matters between states can be utilised to the fullest extent. Negotiations on the terms of the treaty were held over a two year period commencing in January 1999 and Government approval to sign the treaty on behalf of Ireland was granted, subject to ratification, on 19 December 2000. I signed the treaty in Washington DC in January this year and now seek the approval of the Dáil to its terms before proceeding to ratification.
Since 1996 Ireland is a party to a number of international conventions which give rise to obligations to provide various types of co-operation in mutual assistance. The primary convention which gives rise to mutual legal assistance obligations is the Council of Europe Convention on Mutual Assistance in Criminal Matters, 1959, which contains a number of provisions relating to the taking of statements of witnesses and the taking and furnishing of evidence. The convention also makes provision for the execution of a contracting party's request for the search for and seizure of evidence in the investigation of an offence. Other conventions include the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, 1990, which both include an obligation on parties to those conventions to provide for the execution of a contracting party's court orders confiscating the proceeds of crime or forfeiting material associated with crime.
The statutory basis for Ireland's capacity to provide such mutual assistance is contained in the Criminal Justice Act, 1994, which provides for a number of mutual assistance mechanisms, including the execution of foreign confiscation and forfeiture orders in respect of the proceeds or instrumentalities of crime and the taking of evidence for use outside the State. The Act details the procedures to be followed in each case so as to ensure the integrity of the action taken and protect the rights of persons involved in the process. In general, the mutual assistance services provided would include such matters as the service of judicial documents, search for and seizure of evidence, the taking of evidence in court, police co-operation, production orders, restraint and confiscation of criminal assets, the exchange of information from judicial records and the temporary transfer of prisoners. The actual execution of mutual assistance requests is carried out by a number of State agencies; these include the Attorney General's office, the Chief State Solicitor's office, the Office of the Director of Public Prosecutions, the Garda Síochána, the Revenue Commissioners, my Department and the Judiciary. A number of the mutual assistance mechanisms can only be applied where the requesting state has been the subject of a designation order, that is, an order applying certain sections of the Act to that state. Such orders are made following an examination of the international obligations to which that state has subscribed. The United States of America has already been designated for the purposes of the Act.
The Department of Justice, Equality and Law Reform has been designated as the central authority for mutual assistance in Ireland and the mutual assistance and extradition division of my Department has responsibility for the operational aspects of mutual assistance. The primary objective of the central authority is the delivery of a quality mutual assistance service to both local and foreign agencies. The day-to-day work of the central authority involves co-ordinating and managing the process overall in co-operation with the other agencies and Departments.
In this regard, the central authority operates closely with those agencies which provide the investigative and legal expertise necessary to implement requests for assistance. On the investigative side, they include the Garda Síochána and the Revenue Commissioners, including, in particular, the Customs and Excise Service and, on the legal side, the Attorney General's office, the Chief State Solicitor's office and the Office of the Director of Public Prosecutions. I am pleased to say that there has always been a high level of co-operation between Ireland and the United States of America in relation to mutual assistance in criminal matters and police co-operation generally.
In consequence, co-operation in mutual assistance in criminal matters already takes place between Ireland and the United States of America in such areas as the service of summonses, the taking of evidence for use in investigations and prosecutions, and the search for and seizure of material relevant to a criminal investigation. However, the agreements and conventions which give rise to these international obligations of mutual assistance in criminal matters can only lay down broad-based principles of co-operation and, by their nature, may be restrictive in scope. A bilateral treaty of this type allows both parties to set out and provide for their needs and requirements in more detail than would usually be possible in the context of multilateral instruments. No changes to our legislation are necessitated by the terms of the treaty.
The treaty facilitates and enhances the existing co-operation by setting out an agreed range of procedures to be followed in dealing with requests for mutual assistance in criminal matters. It deals with the types of information and evidence which may be requested in connection with criminal matters for the purposes of investigation, prosecution, prevention and proceedings. The treaty makes provision for taking testimony or statements, providing documents, records or articles of evidence, locating or identifying persons, serving documents, transferring persons in custody to give testimony by consent, executing requests for search and seizure, identifying, tracing, freezing, seizing and forfeiting proceeds and instrumentalities of crime and other assistance as may be agreed.
To facilitate requests for assistance the treaty also makes provision for the form and content of requests and sets out the detail every request must contain and certain further details; the requirements for executing requests; a standard provision which lays down that the costs relating to the execution of a request are borne by the requested party, except in certain specified instances; confidentiality, including a provision, reflecting Irish law, which provides that the evidence or information provided under the treaty may not be used for any purpose other than that specified in the request, without the prior consent of the requested state; procedures whereby a person, from whom evidence is sought by a requesting state, may be compelled to give that evidence from the territory of the requested state; production of records and other documents or information, whether publicly available or available only to law enforcement or judicial authorities, and the conditions under which the latter category may be provided; testimony to be given in the territory of the requesting state; the transfer of persons in custody for the purpose of providing assistance under the treaty; and provisions on search and seizure.
The treaty also sets out the grounds on which either state may refuse assistance, such as where, for example, granting the request would seriously impair sovereignty, security or other essential interests or would be contrary to important public policy. Before refusing assistance, both states are obliged to enter a consultative process to ascertain if the request may be granted subject to conditions acceptable to both states.
Article 19 of the treaty provides that the treaty is subject to ratification and shall enter into force upon the exchange of instruments of ratification. Under Article 29.5.2° of the Constitution any international agreement must, if, by its terms, it imposes a charge on public funds, have its terms approved by the Dáil before it can bind the State. Article 6 of the treaty, by its terms, imposes such a charge since it provides, as is usual in such agreements, that the requested party shall pay all costs relating to the execution of the request, including the costs of representation. I, therefore, seek approval by Dáil Éireann of the terms of the treaty.
It appears to be a treaty without too much controversy. Do members wish to make any points?
I am happy that we will implement the provisions contained in the treaty. It is worth pointing out two aspects, however, which will be obvious to the Minister. Curiously, when we were told that this matter was to be dealt with today with some urgency it was suggested the treaty had some relevance to terrorist offences. The treaty has a political offence exemption and is part of the process the Minister described, but it has no direct relevance to terrorist offences. It is worth noting, and I want to draw to the Minister's attention, that if, for example, any of those whom it is alleged were guilty of organising the suicidal attack on the twin towers were found in Ireland with charges levelled against them by the American courts, we could find ourselves facing an issue of controversy as to whether they could be extradited or whether the offence would be regarded as political. They would be exempt from the application of any of the provisions the Minister has just detailed. This is not an issue on which we can go into in great detail this evening, and I do not intend to do so, but I am aware there are certain types of offences of an international nature that may arise out of that attack to which the comments I have just made are not directly relevant. Nevertheless, it is an issue to which we need to come back at a later stage in the context of the different items of legislation the Minister has announced, with which we will deal in the coming weeks in the context of the criminal law, extradition and terrorist issues.
I have no difficulty in assenting to the quick passage of this international treaty, which was signed in Washington long before the events of 11 September. It was actually signed by the former Secretary of State, Madeleine Albright, on behalf of the United States. Under Article 3, limitations on assistance, an offence of a political character is specifically exempted. Notwithstanding this, there are many positive measures that can come from mutual assistance in criminal matters, for example, co-operation in the investigation of aeroplane parts between the authorities in this State and the United States, but I do not see how it can advance co-operation in relation to terrorist offences or offences that can be claimed to be of a political nature. Perhaps the ongoing debate in the European Union finally having a definition of terrorism might be something the Minister could usefully address in responding to the questions we are now posing.
I am fearful that in the rush, certainly in the United Kingdom, we would be required to bring forward proposals for legislation that go well beyond what would be acceptable in peaceful times and that circumscribe the civil liberties of individuals. Thankfully, that has not happened yet in any proposal that has come before the Oireachtas from this Administration, and I caution against it, but at the same time we need effective measures to combat terrorism and ensure this island is not a safe haven, either for the planning or launching of a terrorist attack on any other state, or our own State, or as a conduit for the laundering of money, resources or material that might be used in such an attack. I look forward to any other proposals the Minister might have and have no difficulty in assenting to the contents of this mutual assistance agreement in criminal matters between Ireland and the United States.
I am grateful to select committee members, particularly Opposition spokespersons, for welcoming the mutual assistance agreement, which is not confined to terrorist offences and genuinely intended to ensure a greater level of co-operation between Ireland and the United States. Separate measures are being brought forward to deal with the question of terrorism. We have indicated that legislation will be discussed in the House as early as next Friday to deal with the ratification of certain conventions, including extradition conventions, after which other Bills will be introduced to implement certain conventions dealing with terrorism.
As an aside and purely from memory, as a result of various extradition Acts passed in recent years, the scope of offences for which the defence of political offence can be used is extremely narrow in Ireland's case. The political offence exemption now applies in only a minority of cases, for example, treason and espionage. The list of political offence exemptions in Ireland is far smaller than in most other European Union member states.
For the purpose of the exemption for political offences in Article 3, is the definition of political offence that contained in the current extradition Acts of the State or is there a definition attached to this treaty?
The definition is in the context of extradition as defined in this State. That is all I have to say.