I welcome the Minister of Stateat the Department of Justice, Equality,and Law Reform, Deputy Hanafin, and her officials to the committee. The purpose of the meeting is to consider Committee Stage of the Extradition (European Union Conventions) Bill, 2001.
Extradition (European Union Conventions) Bill, 2001: Committee Stage.
Amendment No. 9 is consequential on amendment No. 1 and both may be discussed together by agreement. Is that agreed? Agreed.
Can the list of groupings be circulated now in order that we will know when amendments are being taken together?
I move amendment No. 1:
In page 3, between lines 33 and 34, to insert the following definition:
" 'Act of 1987' means the Extradition (European Convention on the Suppression of Terrorism) Act, 1987;".
The amendment inserts a new definition, that is the Act of 1987, in the interpretation section. It also entails a consequential amendment, No. 9, to section 12.
Amendment No. 20 is consequential on amendment No. 2, and amendment No. 3 is cognate. Amendment No. 21 is consequential on amendment No. 3. Therefore, amendmentsNos. 2, 3, 20 and 21 may be discussed together by agreement. Is that agreed? Agreed.
As amendment No. 3 is cognate, as opposed to consequential, does that mean we cannot have a separate debate on it? Do only consequential amendments preclude separate debate?
No, we will discuss the four amendments together.
I understand, they are linked so there will be no difficulty in discussing them together.
In plain English.
It is the English that confuses me occasionally. I move amendment No. 2:
In page 4, line 2, after "1995" to insert ", the text of which in the English language is set out for convenience of reference in the First Schedule”.
I wish to say a few words about this amendment, as well as amendment No. 3 and the new Schedules I am proposing in amendments Nos. 20 and 21. Although I welcome the Minister of State to the committee, I am always somewhat alarmed when a Minister of State attends, rather than the Minister himself. Quite often, a Minister of State - although not Deputy Hanafin, obviously, due to her unique abilities - has no authority to accept amendments, no matter how well they are argued by the Opposition. I hope that I will be disproved on this occasion and that the Minister of State will be willing to accept amendments, instead of coming here with instructions that, regardless of the arguments put forward, nothing is to be conceded.
Amendment No. 2 should be a good test of that simple principle because it is a logical one. The terms of the convention are spelled out in the explanatory memorandum. The shelf life of the explanatory memorandum is not long but the text of the Act is what will be referred to in future, not only by citizens but also by practitioners. In amendment No. 2, I propose to facilitate the appending to the Bill of the text of the convention, as a Schedule in the English language. That is straightforward and simple. The amendment reads: In page 4, line 2, after "1995" to insert ", the text of which in the English language is set out for convenience of reference in the First Schedule”.
Amendment No. 3 states: In page 4, line 6, after "1996" to insert ", the text of which in the English language is set out for convenience of reference in the Second Schedule". Those, therefore, are the two convention texts which would then be incorporated into the body of the Bill when we get to the Schedules referred to in amendments Nos. 20 and 21.
The amendments are straightforward and provide for ease of accessibility for practitioners. I am informed by lawyers that it is unusual for the text of a convention to be incorporated in the explanatory memorandum and not in the Bill proper. I hope that, for ease of accessibility and convenience - although it does not change in any way the import of the legislation - this simple request will be accepted and the amendment will not be opposed.
I am always anxious to facilitate Deputy Howlin, although I do not know if the same will happen later on with other amendments. He has actually made the argument for not accepting this amendment, in saying that the explanatory memorandum for this Bill does not have a long shelf life. There is every possibility, in fact, that the shelf life of the Bill may not be very long, either, on the basis that negotiations are quite advanced on a framework for a European arrest warrant.
Then why would we do it at all?
We have an obligation to enact this Bill fairly quickly and have it on the Statute Book by 1 January 2002. In one sense, the Deputy is using my argument. More importantly, I am advised that it is not legally necessary to have the conventions attached to the legislation. The amendment refers to setting out the text in the English language. As Deputy Howlin will know, however, it is not sufficient to have just the English language version because the Schedule would have to be attached both in English and Irish. Both the 1995 and 1996 conventions are equally authentic in both languages, so both would have to be attached. I suppose this could be done but it would make it very cumbersome. I cannot accept the amendment as it is because it only refers to the English language version, whereas it would have to include the Irishlanguage version, as well. Moreover, I cannotaccept it largely because it is not legally necessary.
The Minister is getting off to a bad start. She has put forward two arguments for not accepting the amendment: first, that it is not legally necessary, and, second, that the Act will not survive for long. Neither argument is very convincing. In the first instance, it is normal for the text of a convention to be appended to a Bill. That is the norm, rather than the exception which is being proposed here. For ease of reading, the convention referred to should be spelled out in the legislation. I would have no difficulty in accepting a further Schedule outlining the text as Gaeilge, más mian. That would probably be a good thing to do and the Minister may wish to bring forward such a proposal on Report Stage. It is important to make legislation as accessible as possible. When we are passing legislation dealing with European conventions, people should be able to read the text of the relevant convention in the Bill when enacted. It is no great burden to add a few pages to the legislation to this effect, and I do not see how it harms the Minister's intentions in the Bill. It is in accordance withnormal precedent and it is good policy to beas clear and accessible in our law-making as we can be.
I fully accept the intention behind Deputy Howlin's amendment which I know is being suggested for ease of access. As this Bill seeks to amend the text of the 1995 and 1996 conventions, and obviously has regard to the principal Act on extradition, it can be quite confusing for practitioners. I am particularly anxious to facilitate practitioners in this area so, even though it is not legally necessary, I will examine it for Report Stage.
On the basis the Minister will consider it before Report Stage, I will withdraw the amendment.
I move amendment No. 4:
In page 4, between lines 7 and 8, to insert the following subsection:
"(2) The amendments effected by this Act apply, except where otherwise provided, in relation to an offence, whether committed or alleged to have been committed before or after the passing of this Act, other than an offence committed or alleged to have been committed before the commencement of section 13 of this Act by a person in whose case a court has found that the offence was a revenue offence.”.
Amendment No. 4 inserts a new subsection (2) in section 2 of the Bill. The new subsection (2) follows the equivalent provisions in section 3 of the Extradition Act, 1965, section 1(4) of the 1987 terrorism Act and section 1(2) of the Extradition (Amendment) Act, 1994, that is, the Bill applies to offences whenever committed. However, the Bill does not affect cases already decided where extradition was sought but refused on the grounds that the offence in question was a revenue offence.
Amendments Nos. 5 and 6 are cognate and amendment No. 7 is consequential on amendments Nos. 5 and 6. Therefore, we will discuss amendments Nos. 5, 6 and 7 together by agreement. Is that agreed? Agreed.
I move amendment No. 5:
In page 6, line 8, after "order" to insert "remanding that person on bail or".
In the Bill as drafted the Minister is saying "the court shall make an order committing that person to a prison". I am suggesting that we add the words "remanding that person on bail or". The Bill further states "(or, if he is not more than 21 years of age, to a remand institution) there to await the order of the Minister for his extradition". I am very concerned about this. What we are dealing with is where a person consents to be extradited. If the text the Minister is proposing stands, where a person consents to be extradited that person must be sent to prison to await the extradition order and cannot, in the context of the Bill, be given bail.
That is madness and it is tailor-made to ensure there is no consent. There must be an incentive for people to consent. If somebody willingly wants to leave the State and agrees to be extradited in the way the application is set out, the court must be allowed the discretion in certain circumstances to consent to bail. It is a very straightforward issue. The notion that there is a requirement for the person to be kept in custody even where there is consent undermines the concept of consent.
Amendment No. 7 seeks to insert the following words "A person may not be remanded under this section or section 29 in custody for any period greater than 7 days". This is designed to facilitate consent to extradition by ensuring that a person who consents to be extradited will not be detained for more than seven days. A person who does not consent should not be detained for a lengthy period either - I refer to section 29. There is an indicative timeframe of 40 days which can be extended under section 8, which I regard as much too long in itself, but the thrust of what I want to say is very simple and straightforward. Where there is consent to extradition there should be the option of remanding that person on bail and not a statutory requirement that the person be incarcerated.
Are we discussing amendments Nos. 5, 6 and 7 together?
Yes. Amendment No. 6 is similar to amendment No. 5.
Amendment No. 6 also involves insertion of the words "remanding that person on bail or" and directly relates to my argument.
Amendment No. 7 provides that where a person consents, he or she should not be kept in custody for a period greater than seven days, which is a reasonable period. If somebody is to be extradited and he or she is to be locked up in Ireland, a period of seven days should enable the making of whatever arrangements are necessary. It should not be as open-ended as the section designed by the Minister.
These amendments seek to amend section 6 of the Bill by allowing the court the option of remanding the person on bail or committing such a person to prison. If this amendment was agreed, there would actually be serious implications for other sections and subsection of the 1965 Act.
A number of other matters are directly related to the committal of a person. For example, section 29(3) of the 1965 Act provides that a court, on making an order under subsection (1), should firstly inform the person that he or she will not be surrendered until the expiration of 15 days from his committal without his or her consent.
Would the Minister of State repeat that please?
The specific section, section 29(3) of the 1965 Act, states that the court, on making an order under subsection (1), shall (a) inform the person that he or she will not be surrendered until the expiration of 15 days from his committal without his or her consent and (b) cause a certificate of the committal order to be sent to the Minister.
Section 29(4) provides that where a person claimed is not committed under subsection (1) the court shall order him or her to be discharged. Section 29 A(7) inserted by this Bill refers to an order of committal under subsection (2) in this Bill and makes the same provision for convention countries as currently apply under the existing section 29 referred to above.
Section 31 provides that a person committed under section 29 shall not be surrendered, except with his or her consent, until the expiration of 15 days from the date of his or her committal. Section 34 provides that if any person awaiting his or her surrender is not conveyed out of the State within one month after his or her committal, the person may be discharged from custody.
The amendments would have implications beyond the present Bill and would introduce a different arrangement for convention countries, and I am not sure that these matters have been considered. One of the basic reasons, obviously, for not allowing bail is that there is a very high risk of persons absconding, even among those who have agreed to be extradited.
I just have strong views about putting people in custody. There is a strong bail law in Ireland for people pending the determination of criminality. The Minister of State must remember that extradition is simply the issuing of a warrant. Nobody who is subject to extradition is found guilty of anything. Normally somebody on remand in Ireland would be entitled to bail, with some obvious exceptions. The notion of mandatory imprisonment for people pending their being sent from this jurisdiction is something we should not take at face value.
The Minister of State said that people have a right to a period of 15 days before they are handed over to another jurisdiction. That is a good provision, but it does not relate in any way to my proposal which is to allow bail to those people who volunteer to be extradited. All I am asking is that this option - I am not asking that it be mandatory - be available to the court so it can commit a person to prison or facilitate consent to bail. In other words, I trust the court in these matters to make the most appropriate determination. It is certain there will be hard cases where it would be improper to commit people to prison where there is consent to extradition, and I simply want that option available to the courts. It would be in tune with the way we normally treat people who are on remand or subject to a charge but who have yet to be convicted of anything.
Since 1965 it has been the practice in extradition cases that persons are committed but, just to make the distinction, the committal is only after the order is made and therefore the persons are entitled to bail during the process before the order is made. It is only related to the period following the making of the order.
We are talking about a person who has consented to leave. Therefore, all that is really to be determined is the extradition arrangements. Why is it mandatory that such a person be kept in prison?
But the person may be consenting to go based on the evidence which is being placed in front of him or her——
The person may feel he or she has no option but to go. The order is then made based on the evidence which is provided and then the person is committed. It is generally to avoid people absconding at a rate similar to those in other situations and it has been the practice since 1965. The reference to 15 days relates to amendment No. 7.
I move amendment No. 8:
In page 9, line 26, to delete "also.'." and substitute the following:
(c) the substitution for subsection (3) of the following:
'(3) In this section "an offence punishable under the laws of the State" means-
(a) an act that, if committed in the State on the day on which the request for extradition is made, would constitute an offence, or
(b) in the case of an offence under the law of a requesting country consisting of the commission of one or more acts including any act committed in the State (in this paragraph referred to as “the act concerned”), such one or more acts, being acts that, if committed in the State on the day on which the act concerned was committed would constitute an offence,
and cognate words shall be construed accordingly.',
(d) the insertion of the following subsection:
'(4) In this section "an offence pun-ishable under the laws of the requesting country" means an offence punishable under the laws of the requesting country on-
(a) the day on which the offence was committed or is alleged to have been committed, and
(b) the day on which the request for extradition is made,
and cognate words shall be construed accordingly.'.".
The intention is to amend section 10 of the 1965 Act. The proposal is that it would be sufficient for an offence to be a crime in the requesting state at both the date of commission and request and criminal here at the date of making of the extradition request to constitute an extraditable offence, that is to change from the present position where an offence to be extraditable in Ireland must have been an offence under both our law and the law of the requesting state at the time it was committed and at the time of the request. However, if any part of the act constituting the extradition request was committed in this State then it would have to be an offence under the law of this State on the day on which it was committed.
As mentioned, under our present law the position is that to be extraditable the offence must have been a crime under Irish law at the time of its commission. The matter is not of great moment for the generality of extradition offences since they normally deal with core offences such as murder and theft, which have always been criminal in all civilised states. As a result, it rarely, if ever, becomes an issue in extradition proceedings.
However, the matter could be an issue in regard to new offences being created, particularly offences such as torture or other crimes against humanity, especially those for which states are obliged under the UN and other conventions to provide extra territorial jurisdiction in their domestic courts. Other examples are crimes aimed at child pornography, abuse of children or trafficking in women which could expect to be condemned in all civilised countries. Since extradition is a matter of procedure it is not affected by the common law presumption against retrospective penalisation and there are no accrued rights to be protected. It is the same in regard to the constitutional bar on retrospective penalisation.
The amendment ensures no one can escape because both states had not criminalised the offence in question at the time of its commission. It is, therefore, useful in helping us to meet international obligations, especially where crimes against humanity and others, which are universally condemned by civilised states, are in question.
I seek some clarification. Section 11(c)(3)(b) states “in the case of an offence under the law of a requesting country consisting of the commission of one or more acts, including act in the state, (in this paragraph referred to “as the act concerned”), such one or more acts, being acts that, if committed in the state, on the day on which the act concerned was committed would constitute an offence, and cognate words shall be construed accordingly”. Will the Minister of State translate that into English?
Basically, it must be offence at the time the order is made and not necessarily an offence in the sending country at the time it was committed. If part of the extradition request says the act was constituted in this State, it has to have been an offence in this country at the time it was committed and not only at the time the order is made. If a requesting country wants to extradite a person for an offence and if it states in the request that the offence was also committed in Ireland, it has to have been an offence in Ireland at the time they say it happened.
I am happy if that is all the paragraph means. What does "in cognate words should be construed accordingly" mean?
It has the same meaning as when amendments Nos. 2 and 3 were taken together.
What does that mean?
They are sufficiently closely related.
What does it mean in terms of legislation? We are telling the court that related words shall be construed as having this meaning. What does that mean in legislative terms?
It means that offences, where they arise, will be interpreted in the same way. They would have to have happened in Ireland at the same time. It is legal terminology. I will obtain an English version of it for the Deputy.
There are two changes involved, one in regard to the legality of the requirement heretofore that extraditable acts had to be criminal offences at the time of commission in both countries. Where it is alleged an offence has been committed in this jurisdiction it has to be unlawful at the time of the alleged commission. What change is suggested in terms of an offence having to be an offence under Irish law?
Even if it was not an offence in Irish law at the time and it was committed in the country seeking the extradition, it has to be an offence when the order is made.
Therefore, there are two quite separate approaches.
Yes. The Pinochet case is an example. Money laundering and torture are also examples of offences which were not covered by our legislation in the past but which are now.
The normal rule of law is that it is not an offence unless it is an offence at the time of commission. If somebody is resident here, the Minister of State is saying he or she may commit an offence which is not unlawful in Ireland at this time or may have committed one in the past in another jurisdiction, but following the enactment of the legislation, he or she could be extradited if at some future date the offence committed in the past was made unlawful here.
Murder is an example.
Murder is unlawful. That is straightforward and clear. However, there are offences which peculiar governments might make unlawful here. I am willing to go along with the Minister of State. I am sure nothing untoward will happen in this area.
Will the Minister of State forward a copy of the note she is to send to Deputy Howlin?
On the cognate words?
The Pinochet case is an example. His extradition had been requested on more than 30 charges, 25 of which related to torture or conspiracy between 1972 and 1990. The House of Lords ordered his extradition on three charges relating to the period after 1988 when Britain ratified the torture convention and made torture an extraterritorial offence but held that the pre-1988 charges were not extraditable. It can only be done for the crimes that were offences at the time they were committed.
I move amendment No. 9:
In page 9, lines 27 and 28, to delete "Extradition (European Convention on the Suppression of Terrorism) Act, 1987," and substitute "Act of 1987".
I move amendment No. 10:
In page 16, subsection (1), lines 41 and 42, to delete paragraph (b) and substitute the following:
"(b) the deletion of section 29(5) and 47(5),”.
I do not have the principal Act in front of me which perhaps I should have when dealing with this because section 20 deals with proceedings under the principal Act to be heard before the High Court. I seek in amendment No. 10 to delete section 20(1)(b) and substitute a new one which deletes sections 29(5) and 47(5) of the principal Act. Section 20(1)(b) at present involves the substitution of “Supreme Court” for “Circuit Court” in each place it occurs in the 1965 Act. I understand there are only two references to the Circuit Court in that Act which concern the prohibition of an appeal from the District Court to the Circuit Court.
I am advised these references should not be amended, as the Bill suggests, to prohibit an appeal from the High Court to the Supreme Court. Instead, they should be repealed. If section 47, as amended, stands, it will contain a proposition that an extradition order made by the High Court under the section should not be open to appeal to the Supreme Court. That causes me concern. Obviously an appeals process is essential. Will the Minister explain why section 20(1)(b) seeks to remove the appeals procedure, and can she give me any reassurance on the right of appeal, which is a standard part of jurisprudence in the State?
Deputy Howlin proposes to substitute the existing section 20(1)(b), which provides for the replacement of references to the Circuit Court by references to the Supreme Court, with the deletion of section 29(5), which provides that no appeal shall lie against an order of the Circuit Court under the section, and section 47(5), which contains a similar provision.
Section 29 of the 1965 Act provides that no appeal shall lie against a decision of the court committing a person to prison. They are to await the order of the Minister for his extradition. However, section 29(3) provides, inter alia, that the court shall inform the person of the provisions of Article 40.4.2° of the Constitution which relates to the making of a complaint to court by or on behalf of any persons alleging that the person is unlawfully detained - habeas corpus proceedings. Given that this constitutes an adequate safeguard for the arrested person, I do not accept anything more is needed. Article 34.4.3° also gives an inherent constitutional right of appeal to the Supreme Court.
That is under habeas corpus proceedings. I will deal with those in the next amendment. What is also permitted is an appeals system——
Under Article 40.
——under the law as drafted, which - we will deal with it in the next amendment which concerns habeas corpus - if my interpretation is correct, is to be removed in the new section. Is that right? A person must rely exclusively on habeas corpus for an appeal to the courts.
Up to now one could use a judicial review and habeas corpus, both of which were mechanisms to get the High Court to examine a decision made, whereas now one is going directly to the High Court as the first point of law.
To where does one appeal?
One can always appeal to the Supreme Court on a point of law, but at no stage, even in an appeal to the High Court, are the full facts of a case reviewed. An appeal is always on the basis of law.
I am at a disadvantage in as much as I am not familiar with the relevant cases. I understand that the District Court will make an extradition order and one can apply to the High Court or to the Minister for release under section 50 of the principal Act.
That is right.
One can apply within 15 days and, during that, one will not be extradited - a person will not be bundled away. That is the point the Minister made in responding to the previous issue. A similar provision under the Constitution allows a person to apply for habeas corpus, but that is separate. The impact of the Minister’s proposal is to remove the right of appeal. I am not familiar with the full nature of it, but I understand a reasonably broad avenue of appeal from the District Court to the High Court exists relating to extradition warrants but that such appeals must be made within 15 days. Is that not the case?
The process is a method of getting the High Court to ensure lawful orders apply.
It can be done in different ways.
A person will not be able to do it now because the process will begin in the High Court.
Yes, but a person will have got the High Court to make the order.
Any court of first instance can make a mistake, even if it is the High Court.
Under the Constitution, a person will still be allowed a right of appeal to the Supreme Court on a point of law. Even an appeal under existing provisions rather than the new ones is always on the basis of the law as applied. For example, in any criminal trial, there is no review of the facts of the case.
Does the Minister accept an appeals process should be available?
The appeal as it exists in the courts system is on a point of law.
I am asking for the view of the Minister. Does she believe that, where an application is determined by a court of first instance, there should be an appeals procedure?
One already has that inherent right of appeal to the Supreme Court.
One does not in the proposal the Minister is putting forward.
One does constitutionally on a point of law.
Only on a point of law.
All appeals to the Supreme Court are on a point of law.
That is the point I make.
There is no system even for criminal cases to have all the facts of the case reviewed.
Save for a judicial review.
That will still be available to a person.
I am unhappy with the notion that there is no appeals procedure. The Minister argues she is content.
There is still the possibility of a judicial review, albeit it is not usual because it is another arm of the High Court.
As the Minister knows, a judicial review is used to ensure the law is complied with.
That is exactly what exists at present.
It does not deal with the merits of a case.
Yes, but that is exactly what exists at present and that is not lost, while an appeal on a point of law is also retained.
Matters are determined in the District Court with an overview by the High Court. That will be done away with and that is my concern. The Minister might suggest - God forbid I would suggest it - that better decisions might be made in the High Court. Not all decisions of the High Court are perfect, but one might expect that a higher standard might be brought to bear than in the District Court. That being so, without a court of appeal to examine orders, the change strikes me as a lessening of rights.
Even where one appeals to the High Court, it is to ensure lawful orders are applied. One seeks the judgment of the High Court to ensure that and not necessarily on the facts of the case.
Is the Minister telling me it will be open to an individual subject to a High Court order for extradition under this section to appeal in exactly the same way to the Supreme Court and that the level of competence of the Supreme Court to weigh the matter is of similar order to the level of competence of the High Court to weigh an appeal from the District Court under the existing Act?
The same standards would apply as in any criminal case.
That is not the question I asked.
It gives the protection of a higher court, which is what exists at present.
Would the purview of the Supreme Court to review a decision of the High Court in a case under this section be the same as exists for the High Court to review an appeal from the District Court under the existing Act?
It is the same thing because the High Court reviews on a point of law the decision previously taken. People who appeal using those methods seek the protection of the High Court to ensure proper lawful orders have been made. One is now starting at a higher level and getting that protection from the beginning, with an added appeal to the Supreme Court, which is one'sconstitutional right. One is getting the samething because currently the High Court does not look at the merits of the case on the basis of appeal.
I am sure I agree with the Minister of State but I will take further advice before Report Stage.
Amendment No. 12 is an alternative to amendment No. 11, therefore, amendments Nos. 11 and 12 may be discussed together.
I move amendment No. 11:
In page 17, subsection (1), to delete lines 24 to 31.
The amendment seeks to delete paragraph (f) on page 17. This relates to the point I was making. The suggestion in the Minister’s draft is to substitute section 48 of the principal Act and include this new subsection (2) which reads, “If during the period of 15 days referred to in subsection (1) an application is made by or on behalf of a person to whom the subsection applies for an order of habeas corpus, he shall not be delivered up while the application is pending.” One has 15 days to apply for an order of habeas corpus. Am I correct in saying the restriction is now being removed and the rule prohibiting extradition will only apply where habeas corpus is sought?
The reason for the Extradition Act, 1965 is because in that year the Supreme Court criticised the fast tracking or bundling of people over the Border without a chance to challenge their removal. Section 50 of the principal Act is relevant and reference to it should remain. Consequently section 20(1)(f) of the Bill should be deleted. It, in turn, deletes the reference to section 50 in the original text. Otherwise we are effectively allowing for the dangerous situation whereby one makes the decision first and questions it afterwards. That is delimiting the right to ensure a proper analysis of any order before a warrant or order is executed.
The change proposed in amendment No. 11 would involve reverting to the original requirement in section 48(2). It provided that a person could apply for an order of habeascorpus or for his release under section 50 during the 15 day period to the date of the order. Section 50 was applicable only because the case was started in the District Court. It allowed an application to be made in the High Court, but because cases will now start in the High Court it is no longer applicable.
We are back to the same point. There was a twin-track in terms of appeal, first, an application to the High Court and, second, an application of habeas corpus. The Minister of State is limiting the options to appeal, which is the same point I made previously. A stronger element of appeal existed under the 1965 Act. The Minister of State rightly says she is changing the court of first instance from the District to the High Court, but she has not included a proper mechanism for appeal or review.
My amendment reads, "In page 17, subsection (1)(f), line 27, to delete “15 days” and substitute “21 days”.” It simply refers to the time limit.
This runs counter to the general thrust of the Bill. The whole purpose of the 1995 and 1996 conventions is to streamline and make more efficient extradition proceedings between member states of the European Union. The amendment proposed by the Deputies would provide an additional seven days delay before a person would be surrendered and that runs counter to what we are trying to achieve in the Bill. In addition, 15 days is the period provided for under Part II of the Act and there seems to be no valid reason for a different time period in cases under Part III.
Is the Minister referring to the 1965 Act?
It specifically relates to the High Court and what it should do, but now that it will start in the High Court, that will be covered. Section 50(1) reads, ". . . shall be released if the High Court or the Minister so directs . . . ".
I do not have the 1965 Act. The problem is that the Minister of State wants to modify the section but I want to retain it.
The manner in which it is here is almost like an appellant. However, now that we will be starting in the High Court, the same principles will apply.
The Minister of State is proposing to delete reference to section 50 in the original text as the appellant jurisdiction.
Yes, but it can no longer be the appellant jurisdiction because it is the court of first instance.
I return to the point I made. In reality, in 1965 the Supreme Court determined that a procedure was needed - that is why the extradition Act was introduced - so that an order of the District Court to extradite people did not result in them being bundled out of the country before they had a chance to have a review of the order. The idea of an appeal mechanism was a central plank of the Supreme Court's original decision and a raison d’être for the 1965 Act in the first instance. I have no difficulty with the concept of changing the court of first instance in determining important matters of liberty from the District to the High Court. My difficulty is that the Minister of State has also delimited any possibility of appeal. She has kept habeas corpus because there is a constitutional requirement to do so, but she wants to delimit the right of appeal. If that is not the correct interpretation, perhaps she will explain where it is wrong.
All we are doing is removing the reference to it as an appellant court but keeping the provisions of section 50. It is just the reference to it——
To where would one appeal the High Court order?
One can only appeal on a point of law to the Supreme Court. That is the process that was being used.
We will agree to disagree on that.
I move amendment No. 13:
In page 17, between lines 34 and 35, to insert the following subsection:
"(3) The amendments effected by subsection (1) shall not operate to affect proceedings brought under the Extradition Acts, 1965 to 1994, before the commencement of this section, and accordingly the District Court shall, in relation to any such proceedings, have the same jurisdiction after such commencement that it had immediately before such commencement.”.
The amendment to section 20 is a standard provision dealing with transitional arrangements. It provides that amendments effected by subsection (1) shall not operate to affect extradition proceedings brought before the commencement of this section. In particular the District Court shall in relation to any such proceedings have the same jurisdiction that it had immediately before commencement.
I am opposing the section. Perhaps the Minister of State will explain why nothing in the explanatory memorandum explains this section. As far as I can determine, it fails to mention that the effect of section 21 is to remove the advance parliamentary approval for extradition orders enacted in the 1987 Act. The section is another case of Parliament being asked to nod through diminution of its own powers, which is something we are all getting used to in this committee. The Government does not need advance permission from the House. It can act without prior approval which is something that cannot be done currently under the provisions of the 1987 Act. Why is it not referred to in the explanatory memorandum, and why is it intended to dilute the authority of the Oireachtas on this important issue?
This section is in the Bill to deal with issues which have arisen in practice with diplomatic conventions and similar matters. The Department of Foreign Affairs pointed out that on numerous occasions difficulties arose in making orders under Part II, especially regarding the tight time frame for securing Dáil approval of the motions to apply Part II of the Extradition Act, 1965, to various conventions.
This is playing footloose and fancy free with Parliament. It has proved to be an inconvenience so the Minister has decided to dilute its authority.
What we are saying——
We should hand over our seals to them so that they would not have to come near us at all.
An example they want to put forward is that if other countries accede to a convention with an extradition provision after Ireland has done so, there are 30 days for Ireland to finalise the arrangements to ensure the convention applies. If we do not meet the deadline, Ireland is in breach of its obligations to the other country. If four States. for example, accede to a convention on 1, 5 and 10 August, we must finalise our arrangements by 1, 5 and 10 September which cannot be done at present because the Oireachtas is in recess and so cannot pass motions. The proposal will deal with this problem. The difficulties arise from the practicalities of trying to put in place within 30 days procedures that require a motion of the Houses of the Oireachtas when the Oireachtas is not sitting.
I draw Deputies' attention also to——
I think the Minister has said enough.
——section 21 which is explained on page eight of the explanatory memorandum.
It is not resolved to my satisfaction and I cannot believe that the Minister believes in her heart a word of what she said. It is an argument for the irrelevance of Parliament, saying that parliamentary scrutiny and authority is an inconvenience, even when a person's liberty is at stake. This committee has frequently had occasion to take issue seriously with officials from the Department of Justice, Equality and Law Reform for adopting a cavalier attitude towards Parliament by bringing in orders or requirements, that they have had for months, at the last minute.
I thank the Chairman for raising with the Minister the issue of Article 4, on treaty obligations. We get new documentation in advance so that it does not arrive on a Thursday to be rubber stamped in the Dáil the following Tuesday.
This is important and, if the Minister is concerned about the rights and privileges of Parliament, she should not surrender them because they are inconvenient to any Department. It was good enough for the Oireachtas to enact it into law in 1987 and, if it has not brought things crashing down, we should defend our right to look at orders being made and debate them as the democratically elected representatives of the people. If we need to reorder our business so that plenary committees sit more frequently then let us examine that, but let us not make Parliament less relevant because the more we abrogate our rights, the less relevant we are to the ordinary people which will result in people losing interest in our democratic institutions. I feel strongly about this and if the Minister had a free hand, she would agree with me. Will the Minister respond?
I do not think that is necessary as the Deputy's comments are on the philosophical side.
There is nothing philosophical about it. It is the critical issue of where authority lies. Does it lie here? This section takes away from the Oireachtas the power that we gave ourselves in the 1987 Act because it administratively suits the Departments of Foreign Affairs and Justice, Equality and Law Reform.
I support Deputy Howlin. It is not acceptable that this amendment should be made to facilitate certain Departments.
As I said, the Department of Foreign Affairs cited this as causing them practical difficulties——
I feel sorry for them.
——but I will go back to the Department to see if they have any further thoughts on the matter before the Report Stage.
On that basis, I withdraw my opposition.
Amendments Nos. 14 and 15 are alternatives. Amendment No. 16 is consequential on amendment No. 15, and so amendments Nos. 14, 15 and 16 may be discussed together, by agreement.
I move amendment No. 14:
In page 18, between lines 10 and 11, to insert the following:
"(2) An affidavit or statement sworn for the purposes of proceedings referred to in subsection (1) may not be relied upon by a party to those proceedings without leave of the High Court if another party to those proceedings has given notice of an intention to cross-examine the deponent and the first-mentioned party has failed to produce the deponent for cross-examination.".
This is an extremely important issue of law. There is something inherently wrong with evidence by affidavit or certificate alone which cannot be put to the test of cross-examination. In normal court proceedings, an affidavit cannot be used for a hearing without the court's leave if a party gives notice of a desire to cross-examine the deponent because cross-examination is a constitutional right.
The members of this committee know that well. The courts frequently uphold - recently they did so - the right to cross-examination. The European Convention also contains this right. This section makes cross-examination dependent on the court's views. My amendment inserts what is normal and usual.
I move amendment No. 15:
In page 18, between lines 10 and 11, to insert the following:
"(2) If a person whose extradition is sought serves a notice to cross-examine the person whose affidavit or statement is furnished as provided for in subsection (1) herein, on any matter referred to in such affidavit or statement, such person shall give oral evidence on the matters contained in the affidavit or statement and be subject to cross-examination.".
Deputy Howlin has outlined the points at issue here. The current Bill leaves oral evidence to a judge's discretion, which means that a person can be extradited without the opportunity to cross-examine the affidavit made against him or her. It is in the interests of natural justice that this amendment be accepted.
I will make a technical point first. The Deputies propose to add new subsection (2) to section 7(b), which is being inserted in the Extradition Act, 1965 by this Bill. Given there is an existing subsection (2), it is not clear if the new subsection is meant to replace the original subsection (2) or if the original subsection (2) now becomes subsection (3). It is a technical point.
It is the normal way of phrasing it. If it is accepted the chronology changes.
Yes. Just to explain the background to the inclusion of the existing provision in the Bill. The Attorney General's office is of the view that it would be appropriate to provide in legislation for the introduction of evidence in the relevant court by way of affidavits. At present there is no provision in legislation for affidavits of facts to be used and the legislation only contemplates the admissibility of the warrant verifying affidavit and certificate. I understand that in some cases it has been found necessary to introduce evidence by way of affidavit, for example, to establish the necessary correspondence of offences.
Will the Minister repeat that?
I gave the example of establishing the necessary correspondence of offences.
Accordingly, this Bill provides that affidavit evidence shall be admissible in extradition proceedings unless the court sees good reason to the contrary. In effect the provision will ensure that the existing practice regarding affidavits may be maintained. The provision in the Bill also gives the High Court discretion, if it considers that the interests of justice so require, to allow for oral evidence of the matters described in the affidavit. The current wording of the section provides adequate safeguards for all parties to extradition proceedings and I cannot support the amendments.
I also draw the Deputy's attention to the rules of the superior courts, found in a statutory instrument. Order 39, Rule 1 points out that on any occasion where affidavit evidence may be used the court has the power to direct attendance of the deponent for cross-examination, so it is not actually necessary to add that to the legislation.
I do not accept the logic that because it exists in a statutory instrument it should not be part of——
In rules of the court.
——statutory law. We should explain as far as practicable what are the rights of individuals. No doubt lawyers know these matters but it is a matter of critical importance that the right of cross-examination be available. When somebody is certifying or swearing an affidavit the right of those affected by that should be explicit in the Act. That is required not just by the normal laws of the State but also under the European Convention of Human Rights. I would be much happier if it was explicit rather than implicit in any rules of court. I do not see what damage could be done to the Minister's proposals by the acceptance of the amendment.
It is explicit in the Bill that the High Court may, if it considers that the interests of justice so require, direct that oral evidence of the matters described in the affidavit or statement concerned be given and that the court may for the purpose of receiving oral evidence adjourn the proceedings to a later date. It is allowed for in the Bill.
That is at the discretion of the judge, not the individual who faces extradition.
The fundamental issue is exactly as stated by Deputy Timmins. What I want to do in the proposed amendment is to give the defendant the right to cross-examine the deponent of an affidavit or certificate which would have a consequence for their future liberty. That is normally something the courts demand and it should not be at the discretion of the eminent judge concerned. It is the right of an individual and we run foul of our own precedents and of the European convention if we do not make that right explicit.
It is a rule of the court. I accept what Deputy Timmins said.
Will the Minister of State read the rule of the court again?
I do not have the rule here, just my own notes on it. It is to the effect that on any occasion where affidavit evidence may be used, the court has the power to direct the attendance of the deponent for cross-examination.
That is not the same thing.
That is my own shorthand version.
With all due respect, we cannot enact legislation on the basis of incomplete information. We need to see the rules of court if that is what the Minister of State is relying on.
No, I am just adding that. What I am relying on is that the discretion is in the Bill.
The Bill provides for discretion, and that is a different point. What Deputy Timmins and I are defending is the right to cross-examine deponents. It is a right that we should not trespass upon because it is enshrined in the European Convention.
Does Deputy Timmins want to add anything?
No, it has all been said. I cannot see what damage acceptance of the amendments would do to the Bill.
There is the presumption in the amendment that the court would not uphold people's rights.
That is not the issue. It is a matter of giving the right, not as a discretion but as a right. It is the fundamental difference between having the discretion to do something and having the right to do something.
Is the Deputy pressing the amendment?
I am hoping the Minister of State will accede to it or at least reflect further before Report Stage.
I am not sure how much further I can take this given that it is in the rules and there are rights.
With respect we have just a shorthand note.
I am not relying on those.
The Minister of State has put it as a defence.
No, part of the main defence is that there is a provision in the Bill giving the discretion to the High Court.
That is not the point at all. We are not arguing for discretion, we are arguing for the provision as a right.
Will the Minister of State outline the reason the person to be extradited will not be permitted to have the right to cross-examine the deponent of an affidavit?
I think it relies on the fact that as it stands it is at the discretion of the judge in court but I am not sure and will have to leave that to the Minister.
What if the Minister of State extended that judicial discretion to a right of the defendant?
Up to this what has been happening is that what is being used in affidavits was on an ad hoc basis. This formalises what can be used in an affidavit. At the moment there is no provision in legislation for affidavits of facts to be used.
I put it to the Minister of State that there is a constitutional right to cross-examine. There is an explicit right in the European Convention on Human Rights to cross-examine. What the legislation proposes is to make that right provisional on the view of the judge, which will not stand up.
A constitutional right still remains a right whether or not it is explicitly mentioned in the Bill.
It would be appalling law if the Minister included in the Bill a discretion that is known to be flawed and that someone who wished to exercise the right that I am arguing for now would have to go to the High Court to have the Bill declared unconstitutional.
They would not have to do that. Constitutional rights are not being taken from the person, they are just not explicitly——
They cannot be taken from them.
Exactly, so therefore it cannot be unconstitutional. A person's constitutional right to cross-examine still exists.
Why will the Minister not say it in the Bill?
Because there is no need to as it is a constitutional right.
But it says in the Bill that discretion will be given to the judge.
What is included in that section, by virtue of its inclusion, almost excludes the right of the individual. If the section was not there at all the point the Minister of State is making would perhaps be valid. The inclusion of the section invalidates the point.
I do not think we are going to get——
Genuinely, the Minister of State should hold her position on this for Report Stage because it needs further reflection and I hope she accepts that.
Is that a possibility?
No, it is not if we do not want a rerun of the entire Committee Stage on Report Stage. It is important that people realise that constitutional rights are not in any way being taken from people by virtue of something not being specifically mentioned in the Bill.
It is not that at all. Constitutional rights cannot be taken away by statute so that does not arise. Why is the Minister explicitly stating that it is a discretion of the judge if that is not constitutional? Why was it accepted?
It is just a matter of procedure for the High Court in addition to the constitutional rights which exist. The constitutional rights exist for the person against whom the order has been made and this is a procedural matter for the High Court.
The new section sets out procedure that gives a discretionary right to cross-examine those deponents who have made statements or sworn affidavits. That procedure should be included as a matter of right and state explicitly the right to cross-examine those deponents. The Minister of State has not said——
I am saying that the right exists as a constitutional right. It does not need to be explicitly mentioned.
That makes a nonsense of law. One cannot make law that purports to dosomething and then say the Constitution goes much further and that what we set down in the Bill, which the Minister is asking us to enact, really does not matter. That is no way to make law.
This is a procedural matter which we are setting out which is in addition to the constitutional rights which——
I presume the Minister does not disagree with the procedure that individuals affected by affidavits sworn or certificates presented in relation to these matters have the right to cross-examine the deponents.
If they are right.
So the Minister does not disagree. Why does she not simply make that explicit in the Bill?
It is not necessary.
Of course it is. The Minister is including a new subsection which clearly purports to delimit constitutional rights, which she acknowledges she cannot do.
Will the Deputy say that again, please?
The section that the Minister has presented here purports prima facie to delimit what she has now accepted is a constitutional right to cross-examine.
That cannot be done.
It does not.
The Minister of State is telling me that she does not explicitly give in the Act the right to cross-examine——
Because it is not necessary to physically add in every constitutional right that people have. What we are doing here is setting out a procedural matter for the High Court referring to the provision in legislation for affidavits which had been happening on an ad hoc basis up to now and which had not been formalised.
If it is not necessary to include it why is subsection (2) there at all? Why is it necessary to include it?
The constitutional rights referred to the defendant whereas the procedure refers to the High Court. The constitutional rights do not attach to the procedures of the court; they attach to the person.
Does Deputy Howlin wish to discuss this further?
We are dealing with a very bright and very intelligent Minister of State who must by now be aware that she is on extremely thin ice in the logic of the case she is presenting. Will she do the decent thing and reflect on it until Report Stage?
Section 2(2) sets out a procedural issue for the High Court. What the Deputy is talking about, and I agree, are the constitutional rights that people have to cross-examine, which also exists.
The Minister of State is putting forward a procedure that gives a discretionary right to the High Court if it considers that the interests of justice so require. The statute explicitly gives power to a judge to make a discretionary decision about a matter in which the Minister now admits a judge has no discretion because it is a matter of constitutional rights. That is daft. Does the Minister of State accept that in the section she has put forward, she is giving a discretionary power to the High Court to take oral evidence if that judge considers it to be in the interests of justice? That is what she is doing.
But she has already told me that if an affected person wishes to cross-examine and requires to take oral evidence of anybody who has made a certificate or sworn an affidavit, they have that right unabrogated by this section. Where does the Minister stand on it? Does she give discretion to the judge to make that decision or does the individual have that inalienable right in the first instance? She cannot have it both ways.
But there is the right to cross-examine.
That is not said in the section.
That is a right as set down in the rules——
We do not have the rules before us so we do not know.
We will certainly get them.
Should not the statute reflect that right?
If the person themselves did not invoke the right this gives power to the court to do it. It goes back to the fact that this is a procedural matter for the court.
We need a section to say that the individual affected by the affidavits has that right too.
He has that right. There is no need to specify it.
Of course there is. The Minister of State is saying that it is a discretion only for the court. If a layman read it this would be his conclusion. Quite frankly I think the Minister's position is totally untenable.
Is there a possibility that we could reflect on this item on Report Stage?
The other issues on which I agreed to reflect are issues on which I hope to be facilitated at Report Stage. I am not sure if the same can be said on this one.
I accept that.
Reflecting without prejudice.
Amendment No. 17 is consequential on amendment No. 18 and they may be taken together by agreement.
I move amendment No. 17:
In page 19, line 30, to delete "subsection" and substitute "subsections".
This is a technical amendment.
I move amendment No. 18:
In page 19, line 39, to delete "penalty.'." and substitute the following:
(3) For the purposes of this Part, an offence specified in a warrant corresponds with an offence under the law of the State if-
(a) the act constituting the offence so specified would, if done in the State on the day the warrant is produced under the section 43(1)(b), constitute an offence under the law of the State, or
(b) in the case of an offence so specified consisting of one or more acts including any act committed in the State, such act constituted an offence under the law of the State on the day on which it was committed.’.”.
I move amendment No. 19:
In page 19, after line 39, to insert the following new section:
"27.-Section 3 of the Act of 1987 is hereby amended by the insertion in subsection (3)(a) of the following subparagraphs:
(ii a) an offence within the scope of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, done at Geneva on the 12th day of August, 1949,
(ii b) an offence within the scope of the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, done at Geneva on the 12th day of August, 1949,
(ii c) an offence within the scope of the Geneva Convention Relative to the Treatment of Prisoners of War done at Geneva on the 12th day of August, 1949,
(ii d) an offence within the scope of the Geneva Convention Relative to the Protection of Civilian Persons in time of War done at Geneva on the 12th day of August, 1949,’.”.
This amendment inserts a new section 27 into the Bill which amends section 3 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987. The four Geneva Conventions of 1949 are being added to the list in section 3(a) of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987. This is being done following consultation with the Attorney General’s Office to ensure that the political defence will not arise in cases involving these conventions. As a result of this amendment Ireland will be able to ratify a 1978 Protocol to the 1957 Council of Europe Convention on Extradition. The 1957 convention on extradition throughout the Council of Europe area is the basis of the 1965 Act. The protocol makes clear that offences under the Geneva Convention are not to benefit from the political offences exemptions. These conventions have been given effect in Ireland by the Geneva Conventions Act, 1962. However, the 1962 Act does not make specific provision about reliance on the political offence defence nor for extradition, although section 15 of the Geneva Conventions (Amendment) Act, 1998 refers to extradition arrangements. For example, the fact that the Genocide Convention specifies that genocide is not to be treated as a political offence begs the question as to the Geneva Conventions, and their exclusion could give rise to an assumption that the Legislature did not intend them specifically to be excluded from the political offence exception. Accordingly, the amendment is being made to remove any doubt about the possibility of a political defence being relied upon in Ireland in the case of offences under these conventions.
It is timely to bring into the scope of the Bill the Geneva Convention and its subsections. Subparagraph 19 (ii c) relates to an offence within the scope of the Geneva Convention relative to the treatment of prisoners of war. I would be interested in finding the actual mechanism for taking action under the convention for extradition since we have seen the horrific treatment of prisoners of war in the last number of days and it has scandalised the country. Will enactment of this Bill apply retrospectively to deeds committed in the last few days, should somebody need to be charged with a violation of the Geneva Convention in relation to the treatment of prisoners of war?
I share Deputy Howlin's view of the horrific events we have seen over the last few days. In fact, the scope of this Bill would cover such situations under the Geneva Convention as those offences would also be offences in this country.
I join with the Minister of State and Deputy Howlin in their expression of horror at what happened in that prison in Afghanistan.
I thank the Minister of State and her officials for their attendance today. I remind members that the Select Committee will meet at 2 p.m. next Tuesday to consider the Supplementary Estimates for the Department of Justice, Equality and Law Reform and at 3 p.m. to consider Committee Stage of the Solicitors (Amendment) Bill, 1998.