As the Minister has been delayed, we will suspend the sitting for a few minutes. Deputy O'Keeffe will take the Chair as I have tabled some amendments.
Mr. J. O'Keeffe took the Chair.
Transfer of Execution of Sentences Bill 2003 [Seanad]: Committee Stage.
Is it agreed that we suspend the sitting for ten minutes? Agreed.
Sitting suspended at 9.45 a.m. and resumed at 9.55 a.m.
Mr. S. Ardagh took the Chair.
I welcome the Minister for Justice, Equality and Law Reform to the meeting, the purpose of which is to discuss Committee Stage of the Transfer of Execution of Sentences Bill 2003. Amendments Nos. 3, 13 and 14 are related to amendment No. 1 and all may be discussed together.
SECTION 1.
I move amendment No 1:
In page 3, subsection (1), line 22, after "1997" to insert the following:
", the text of which in the English langauge is set out for the convenience of reference in Schedule 1 to this Act”.
I welcome the Minister and his staff. I have included a Schedule in the amendments with the intention of inserting the text in the Bill. This is normal practice and would be useful for people availing of the legislation. Rather than trying to obtain the text of the protocol, they should be able to access the document and what is relevant. I have selected the relevant sections of the protocol and the Schengen Convention rather than providing the entire text. The Minister indicated earlier that the original amendment related to broader issues than the Schengen Agreement. It is just the relevant sections that are now being included in the revised amendment. It is not a very long Bill. Therefore, it would be of enormous benefit, not just to legal practitioners who have access to all sorts of libraries, databases and so on, but to ordinary people. This could include those who would be the subject of the transfer of execution of sentences legislation, including their relatives and friends. It would be beneficial to them if they were able to get a copy of the legislation and the original protocols to which it refers. Therefore, I propose that we include the text of the European agreements in the legislation.
The amendments propose that the full text of the additional protocol and certain parts of the Schengen Convention should be added as Schedules to the Bill. I consulted the Parliamentary Counsel and we have considered the amendments, which are similar to amendments tabled in the Seanad.
I cannot accept the amendments for the following reasons. On the additional protocol, we are not giving effect to the full protocol. While the protocol contains nine articles, only Articles 2 and 3 contain substantive provisions. Of these, Ireland proposes to operate Article 2 only. In those circumstances, it would be inappropriate and possibly confusing to schedule the entire protocol when we are only giving effect to part of it. Scheduling the protocol would appear to be slightly at odds with the decisions taken in the 1995 Act because the main convention was not scheduled to the Act in the first instance. Scheduling the protocol without the convention might lead to confusion as to the exact legal position. Such an outcome would defeat the purpose of the amendment.
In the case of the Schengen Convention, it is proposed that a number of parts, but not all of it, should be added as a Schedule. Some of the parts proposed have little bearing on the matters set out in the Bill. This Bill gives effect to Articles 67, 68 and 69, dealing with the transfer of the enforcement of criminal judgments. These are the only articles of the convention referred to in the Long Title to the Bill. The proposal may, therefore, be outside the scope of the Long Title, or at least it is not consistent with it. That fact, together with the disjointed nature of the material proposed to be added, has the potential to create much confusion and uncertainty as to the precise scope of the Bill. Whereas sometimes I agree with the Deputy that it is a good idea that source material be scheduled to an Act for ease of interpretation, on this occasion it would just add extra bulk to the Statute Book with marginal benefit and possible problems attached to it. Therefore, I cannot accept the amendments.
I have tailored the amendment to these needs. It is not the same as the amendment tabled in the Seanad. It has been revised to take into consideration the remarks the Minister made, namely, that elements of the Schengen Convention were not relevant to the legislation. There is a real problem with legislation that is not as holistic as possible whereby one can examine the legislation and get the totality of what it refers to. Legislation that refers to other legislation in a confusing fashion means that ordinary people must go round the houses to find out to what it refers.
If this type of specific package, which includes protocols to part of the Schengen Convention dealing with the transfer of the execution of sentences, is put together, everything will be included, which is how legislation should be presented. This would mean that people would not have to go elsewhere to find the schedule or the text of the Schengen agreement or the additional protocols. People do not know where to look for this information. When we are talking about making legislation accessible both to professional practitioners and to ordinary people who might have some reason to refer to it, especially where there are practical grounds or people would be affected by the legislation, namely, family, friends and the individuals themselves, it is highly relevant and very important that where the legislation can easily contain the full package of legislative proposals and scheduled proposals, they should be incorporated into the one document. This would mean that people would not have to go from Billy to Jack to find the text which is diverse and not usually accessible to lay persons.
If the Deputy looks at the Bill as amended in the Seanad, section 4 is the only section where the Schengen Convention arises. The text of the Schengen Convention is of marginal significance because section 4 only refers to the fact that the Minister for Foreign Affairs can designate countries that have ratified, accepted, approved or acceded to the additional protocol, or a country that has ratified or acceded to the Schengen Convention, or a country other than a country in paragraphs (a) and (b) that has given effect to the relevant pieces of Chapter 5 and Article 2 of the additional protocol. To operate the Bill, all one needs to know is the designated countries. One does not have to go back to the original source material and start reading the convention because the remainder of the text of the Bill speaks for itself.
Articles 67, 68 and 69 of the Schengen Convention, which the Minister said are the most relevant articles, specify the provisions in the legislation. These include the contracting parties and a penalty involving deprivation of liberty. How is this relevant to designated countries in section 4? Designated countries are one element of the articles of the Schengen Convention which are appropriate. The relevant parts of the schedule of Chapter 5 would be relevant. The Minister believes that some of the elements I have included are not relevant. However, the principle is the same, namely, that the actual schedule is included from which the transfer of sentenced persons operates. It is included specifically in the wording of Articles 67, 68 and 69, and perhaps in some of the other articles.
The Bill can be read and operated without reference to the schedule to the convention. We do not need to include this material. A competent lawyer would not have to go back to the convention.
Never mind the competent lawyer. I am talking about ordinary people to whom we can provide assistance.
We will go over to Grafton Street and see how many people need assistance in this regard.
Is amendment No. 1 being pressed?
Yes, because the Minister's arguments were less than convincing.
Amendment put and declared lost.
Amendments Nos. 2 and 9 are related and will be discussed together.
I move amendment No. 2:
In page 3, subsection (1), between lines 25 and 26, to insert the following:
"‘relevant authority' means the person designated in the relevant country concerned who performs functions the same as or similar to those performed by the Minister under this Act;".
The concept of "relevant authority" is central to the Bill and should be clarified and defined at the outset. I have taken the words from section 5 as I believe they are more appropriate to the definition section.
These amendments seek to change section 5 by deleting much of the current text and by inserting the term "relevant authority" and then adding a definition of that term in section 1.
Section 5 relates to a situation where the Minister wishes to issue a request to another state for the imprisonment there of a national of that state who has fled from Ireland. The request is to be addressed to a person in the other state who is equivalent to the Minister here in so far as his or her functions are concerned. Section 5 gives a full clear indication of who is the relevant person or authority in the other state. The definition states that subject to subsection (2), where a person in respect of whom a sentence has been imposed in the State flees from the State before he or she has completed serving the sentence and who is for the time being in a country, the Minister may request the person in the designated country who performs functions the same or similar to those performed by the Minister under this Bill, to consent to and arrange for the first person's serving the sentence or remainder of the sentence, as the case may be, in that country.
It makes sense to create a clear designation of the type of person without setting in schedules who would or would not perform that function in any particular country. We do not want to have to change the Bill if, for example, the Polish justice system is reorganised and the position of Minister for the Interior is abolished and replaced with a Minister for Justice and Security in Prisons and so on. We want to ensure such a request goes to whoever in the Polish administration performs the same functions as our Minister for Justice, Equality and Law Reform. It is not possible to define the matter more clearly than has been done.
The amendment seeks to provide that the "relevant authority" means the person designated in the relevant country concerned who performs functions the same or similar to those performed by the Minister under this Bill. It is not necessary to include an additional definition section.
As Deputy Costello stated earlier, we are trying to make the Bill more readable and clear from the outset. That was the purpose of the amendment. I accept that the provision is covered by other sections but felt matters would be clearer if we included it in the definition section.
All readers of the Bill may not be senior counsel.
Is the amendment being pressed?
Yes.
Amendment put and declared lost.
I move amendment No. 3:
In page 3, subsection (1), line 32, after "1990" to insert the following:
", the text of the Preamble, Title I, Chapter 5 of the Title III, Titles VII and VIII of which in the English language are set out for convenience of reference in Schedule 2 to this Act”.
Amendment put and declared lost.
Section 1 agreed to.
NEW SECTIONS.
I move amendment No. 4:
In page 4, before section 2, to insert the following new section:
2.—The purpose for which this Act is enacted includes the giving effect to the following:
(a) Article 2 of the Additional Protocol to the 1983 Council of Europe Convention on the Transfer of Sentenced Persons; and
(b) Articles 67 to 69 of the Schengen Convention.”.
The thinking behind this amendment is that it is always useful to include a purpose provision in a Bill even if it only assists us as legislators. It would be even more helpful to the lay person who can find out from reading one section the purpose of the Bill. I disagree with those who say the Long Title of every Bill expresses its purpose. This is not true. Each Act should include a purpose provision. It would be a small step towards making our legislation more understandable. I ask the Minister to consider the amendment.
There are two different schools of thought on this issue. Some people believe a purpose provision should be included in every statute while others believe the traditional way of not doing so and allowing the court to have regard to the Long Title is the more sensible option.
I recall on one occasion an amendment tabled in the Dáil by Deputy David Andrews and I seeking to substitute "barristers shall not wear ceremonial wigs" with "barristers shall not be required to wear ceremonial wigs" in order that barristers could choose one way or the other.
That is proper order.
The amendment was accepted by the Minister for Justice at the time, Deputy Owen. It was later noted that the Long Title of the Bill stated that one of its purposes was to prohibit the wearing of wigs by barristers. That had not been noted and is now part of the law. The relationship between the Long Title and the text of a Bill is a complex one.
Perhaps senior counsels cannot read Bills either.
It is one of these anomalies. If one read the Long Title of the Bill one would be believe the purpose was to prohibit them wearing wigs. The Bill was later amended. This is a matter of style. I have a draftsman who does not share the style of Deputy Murphy's draftsman. I will not trample over the draftsman's style at this stage.
There are two other precedents where this has been done by Government; the Water Services Bill 2003 and Air Navigation and Transport Act. The draftsman's style is not uniform.
That Minister had a different style.
This is not my style; it is the draftsman's style. I appreciate the Deputy's remarks that it is not unprecedented for a purpose section to be included in a Bill. However, when including a purpose section one has to be absolutely sure it is exactly as one intended. The Long Title is a slightly more relaxed way of doing things. The court normally looks to the operative sections first. If it is in doubt about their meaning, it then goes back to the Long Title. The inclusion of a purposes section as an operative one has a much more direct effect. This is not a matter of high principle. If it had been drafted the way the Deputy suggests I would not be arguing the converse. I do not wish to tell my draftsman he got it wrong.
Amendment put and declared lost.
Amendment No. 5 not moved.
I move amendment No. 6:
In page 4, before section 2, to insert the following new section:
2.—The Minister shall on or before 1 March in every year commencing in the year following the passing of this Act prepare and lay before both Houses of the Oireachtas a report on the operation of this Act in the previous calendar year.".
In tabling these amendments, we are trying to be helpful to the Minister, to improve the legislation and to ensure it operates effectively. We have all referred to the fact that much legislation comes from the Department of Justice, Equality and Law Reform but we never seem to know how effective its usage is when passed. The amendment provides that "The Minister shall on or before 1 March every year commencing in the year following passage of the Act prepare and lay before both Houses of the Oireachtas a report on the operation of this Act in the previous calendar year". That is eminently reasonable and should be normal practice in terms of all legislation. It is about the only way we can find out whether legislation is being used. It is important in legislation such as this, which involves a relationship between this jurisdiction and others and requires that our citizens serve sentences abroad and others serve sentences here, that we know how the Bill is operating, what countries are using it or have signed up to it and how meaningful it is. A report on the operation of the Bill in the previous calendar year would be an invaluable item to be placed in the Library of the Houses of the Oireachtas. I do not see any reason the Minister should not welcome an amendment of this nature. It is eminently reasonable, as usual.
I will clarify. It is expected that only a small number of cases will arise each year under this Bill and that in some years no case will arise. As a result, the requirement to produce a report annually would be disproportionate to the need to be addressed or to the perceived benefit of such a report. In the event of cases arising, it will be possible to include them in the report which is presented to the Oireachtas under section 11 of the Transfer of Sentenced Persons Act 1995. This seems a reasonable solution. I do not think anybody would read a separate report for this Bill, but somebody would have to prepare it and that is the problem.
If this is of such riveting interest to Deputy Costello, I suggest that he submit a parliamentary question in a year's time and I will give him a full answer. If he wants a discussion on it, he can nominate it as a priority question for question time and we can have a full discussion on the issue. However, the idea that we should have an annual report means an official would have to include it in his or her diary, prepare for it weeks in advance and ensure it makes the deadline etc. The public would have little interest in it.
: Would that report have to be produced in Irish as well as English?
It probably would. We could do the parliamentary question through Irish if Deputy Costello wished.
It is not just a personal interest. The legislation applies to everybody here. We are talking about improving the legislation and not about catering to my particular whim. The 1995 legislation deals with repatriation which is different. If the Minister wanted to accept an amendment that it would be included in the report for the 1995 legislation, that would be welcome. There should be some mechanism for reporting. We are not talking about an enormous amount of work. It is basically a statistical statement of the number of people who availed of the legislation.
When I produce a statistical statement this committee berates me because I am not giving enough information. That happened approximately three weeks ago.
That matter related to special legislation and how it operated. We would have liked more detail than just the bare statistics. We discussed that. Producing a report would not take much time as the information would, I presume, be in a database. What we are talking about is the effectiveness of legislation whether it is used or not. The Minister spoke about a consolidation of criminal justice legislation and about trying to make it more accessible and effective. A report would be one way of doing that.
A parliamentary question is the right way to deal with the matter. If that proves inadequate, we can return and amend the Bill.
This time next year I will table a parliamentary question and remind the Minister of that.
Amendment, by leave, withdrawn.
SECTION 2.
I move amendment No. 7:
In page 4, line 19, after "sentences" to insert the following:
", including those imposed outside the State".
In our legislation there is a presumption against extraterritorial effect. In order to rebut this presumption, clear words must be used. I propose this amendment to guarantee that this Bill applies to sentences imposed outside the State.
In section 6(1) it is very clear that the sentence can be a sentence imposed outside the State. Therefore it is unnecessary to rebut the presumption. The Act, by its text, makes it clear that it is intended to apply to sentences outside the State. Section 6(1) states:
Subject to subsection (2), the Minister may, upon receipt of a request in writing from a sentencing country to consent to the execution in the State of a sentence imposed in the sentencing country, or part of a sentence so imposed, on a person who fled to the state before or after he or she
(a) commenced serving that sentence, or
(b) completed serving that sentence,
give such consent.
It is clear from this provision that it applies outside the State.
Amendment, by leave, withdrawn.
I move amendment No. 8.
In page 4, line 20, after "passing" to insert the following:
", unless the High Court on the application of the sentenced person concerned determines that it would be inappropriate in all the circumstances for this Act to apply to that person".
Section 2 states starkly that this legislation applies to sentences whether imposed before or after the passing of the Bill. This indicates that the legislation operates retrospectively. I have a problem with that and it is for that reason I include the caveat "unless the High Court on the application of the sentenced person concerned determines that it would be inappropriate in all the circumstances for this Act to apply to that person."
The reason for my concern about this section is that the application of this legislation is not limited to the European Union and the Council of Europe. It is unlimited. Anybody who wishes to sign the protocols can do so and we have no say in the matter no matter what country it is. Saddam Hussein could have signed for all we know and if he did, it would apply.
Currently the United Kingdom, Spain, Slovenia and Slovakia have passed legislation on this matter. Once the additional protocols are open for signature, all the states that sign are open to the process. A wide range of countries signed. Does this legislation apply to all of those countries retrospectively? Could we find ourselves in a situation where it applies to an Irish national serving a sentence in Israel or Venezuela, for example, or any of the other countries that have signed the protocol?
Section 4 was included to meet the point being made by the Deputy. If everybody could as a matter of law simply sign a convention somewhere and thereby require and oblige the State to imprison people who fled to Ireland without having served some sentences in those states as an automatic entitlement, there would be a problem of the type to which the Deputy refers. However, that is not the case. Section 4 was included in order that the Minister for Foreign Affairs — it is significant that it is that Minister and not the Minister for Justice, Equality and Law Reform — is not obliged to designate by order everybody who ratifies these schedules or conventions. It is a matter of choice.
Section 4(2) makes it clear that the Minister for Foreign Affairs can amend or revoke an order which designates a state for the purpose of this regime. Section 4(3) requires the Minister to lay any such designation before each House of the Oireachtas. Therefore, it is not a matter of automatic entitlement. The Deputy implies some terrible tyrant could simply sign the protocol and then send me a letter requesting me to imprison people sentenced in their country but who had come to Ireland. That would not happen because the Minister for Foreign Affairs would first have to designate that country and lay a designation order before the Houses of the Oireachtas. We would then know in advance what was happening.
It is not quite fair to say this is retrospective legislation. While it is prospective in effect, the people who are caught by it have or will be sentenced. It is not retrospective in the sense that it does not purport to sentence someone retrospectively. It merely provides for people who have already been sentenced just as much as it provides for people who will be sentenced after it has been introduced. It would be a bit strange if it did not so provide. I do not see how it would help to bring the High Court into it. The Bill in no way prevents the High Court from exercising its jurisdiction where a person brings a habeas corpus on the basis that someone’s constitutional rights were being infringed.
Section 9 sets out the requirements to be observed by the High Court before it orders the execution of a sentence. I draw the attention of the committee to section 9(2)(f) which ensures that a person arrested under the Bill will be on the same footing as a person facing an extradition request or European arrest warrant. All the protections afforded under Part 3 of the European Arrest Warrant Act are to apply. These extensive protections ensure a person’s rights under the Constitution and the European Court of Human Rights are respected. He or she cannot be imprisoned under the legislation where a sentence was imposed in respect of an offence arising from or connected with his or her race, nationality, religion, sex, ethnic origin, political opinion, sexual orientation or language. The amendment is unnecessary in view of the extensive safeguards under section 9.
How will the authority given to the Minister for Foreign Affairs be exercised? The Bill provides that the Minister may, by order, designate a country which has ratified the additional protocol or Schengen Convention. Is the presumption that there is no need for my caveat as the Minister will be the intermediary who will decide whether a particular country should be a country with which we may enter into an arrangement for the serving of a sentence?
For a country to qualify to make a request, it must be designated by the Minister for Foreign Affairs. The Minister may only designate a country if it has acceded to the conventions outlined. While that is a necessary condition, it is not sufficient of itself. The Minister for Foreign Affairs may decide that while it may be that North Korea, for example, has signed up, he will not imprison people in Ireland on foot of court decisions in that jurisdiction. If he were of that view, the Minister for Foreign Affairs would not designate North Korea. Even if the Minister were to bring an order before the House designating North Korea, a person could go to the High Court under section 9(2)(f) and say the sentence imposed constituted persecution and that he or she would not be liable to meet the charges and therefore he or she should not be asked to serve the sentence in Ireland. There are a great number of safeguards in place.
There is no section 9(2)(f).
Does the Deputy have an old copy of the Bill? The subsection was inserted by the Seanad and is at the bottom of page 9. The safeguards set out are very extensive. They are so extensive that some people have criticised them.
I will buy into that.
Amendment, by leave, withdrawn.
Section 2 agreed to.
Sections 3 and 4 agreed to.
Amendment No. 9 not moved.
Section 5 agreed to.
Section 6 agreed to.
SECTION 7.
I move amendment No. 10:
In page 7, subsection (6), line 36, after "time" to insert the following:
"prior to the execution of the warrant".
Amendment No. 10 is designed to ensure that a warrant cannot be varied after it has been executed. I am interested to know what the Minister has to say.
The Minister must be able to apply to the High Court at any time after a warrant has been issued or executed if he or she becomes aware of new information which would justify returning to the court to seek a variation. If made, amendment No. 10 would limit the Minister's discretion as one could not take the action outlined prior to the execution of the warrant. The Bill, as presented, provides the Minister with an opportunity to bring any new information to the court's attention regardless of when it arises. The amendment might inhibit or remove that possibility, which, I presume, is not the Deputy's intention in moving it.
If new information arises after an arrest, the court will have its own discretion in dealing with the matter. It is an unnecessary constraint to provide the Minister may only seek a variation up to the point at which the warrant is executed.
I am concerned that the Minister's powers could, to a certain extent, infringe on people's rights. I accept that the High Court represents a safeguard, but still have serious concerns.
Amendment put and declared lost.
Section 7 agreed to.
SECTION 8.
I move amendment No. 11:
In page 8, subsection (4), line 38, to delete "in custody".
Amendment No. 11 relates to the provision whereby on the issue of an arrest warrant, a person shall be remanded in custody pending the production of the certificate. I propose to make the provision somewhat more flexible by deleting the words "in custody" to permit a person to be remanded on bail. There will be circumstances in which a custodial remand is unfair on humanitarian grounds where, for example, the person to be remanded is in hospital or suffers from a serious illness. Removing such a person from hospital and placing them in prison might be damaging to his or her health. The High Court should have recourse to more flexible provisions to address such circumstances by remanding a person other than in custody. A person subject to remand might have fled to Ireland seeking protection from another jurisdiction in which sentence was about to be imposed. The provision as drafted is too harsh and rigid to apply in such a case.
I do not think we can prevent a prisoner receiving treatment in accordance with prison rules. As long as a prisoner is not at liberty to fly out of Ireland, the exact circumstances of his or her custody or the way in which he or she is treated will be subject to ordinary procedures.
The idea of "provisional arrest" is to ensure that a person is not at liberty. It is unusual to effect a provisional arrest and it happens in circumstances where it is necessary to curtail a person's freedom of movement to allow the full process to be put in train against them. It is true that the requirement to remand in custody is inflexible but it must also be remembered that the person has already absconded from the sentencing state and, therefore, shown a propensity to flee. If the person had not fled, he or she would be in detention in the sentencing state. Allowing for the possibility of release following a provisional arrest would undeniably result in absconders doing another disappearing act. The issue under discussion is provisional arrest. If it means provisional arrest or provisional liberty, it is not really provisional arrest.
It is not necessarily true the person would be in custody in the sentencing state. It could be that he or she fled prior to a sentence being imposed. We would not be sure what the sentence would be. As matters stand, the legislation offers scope in this regard. Section 8(4) states: "The High Court shall, unless the certificate to which section 7 applies is produced to the court, remand the person in custody...”. Therefore, if a certificate is produced, the person will not be remanded in custody, whereas if it is not produced, he or she will be remanded in custody. Grounds on which one would not be remanded in custody have, therefore, already been provided for in the legislation. Surely it should be left open to the High Court to make a decision on custody, having considered the circumstances as presented to it.
This is a form of provisional arrest and if one is under arrest, by definition, one is under arrest, not at liberty. It would be strange if a fugitive offender could argue in court that he or she was entitled to be at liberty, having absconded from or left another state in which he or she had been the subject of criminal proceedings. It is typical of extradition law that a provisional arrest would result in people being in custody. The High Court does not have to make the order; it must apply its constitutional functions and so forth. The point of significance is that if the High Court is satisfied that the statutory conditions are required, the person should be arrested because the whole purpose is to make him or her available for further process.
I will press the amendment because I wish to leave the Judiciary with some scope in this regard.
Amendment put and declared lost.
Question proposed: "That section 8 stand part of the Bill."
Section 8 provides that: "The High Court may, upon the sworn information of a member of the Garda Síochána not below the rank of inspector given with the consent of the Minister, issue a warrant for the arrest of any person...". Why is the rank of inspector included? Why not use the more customary rank of superintendent? Given the degree of activity of persons arrested by the issuing of a warrant, I expect the decision in the other state would be taken by an officer of higher rank than inspector, especially given that a person will be remanded in custody as a result. Are guidelines available as to the rank of members of the Garda who have powers to issue a warrant in circumstances of this nature?
If the rank indicated in the Bill were superintendent, someone would ask why it was not chief superintendent. At what point does it become reasonable? This is a matter of degree and judgment. The inspector will not issue the warrant but give sworn written testimony to a court. In order to apply to the High Court to issue the warrant, the inspector must also obtain my consent. Public policy considerations will apply in this regard. The position would not change much if the rank provided for were superintendent rather than inspector. These circumstances will not arise every day. I see no reason a relatively senior member of the Garda Síochána such as an inspector should not be in a position to swear the information in question.
I remind members that the court issues the warrant. It does so on the basis of sworn information but is not obliged to do so. The person swearing the information must be a relatively senior member of the Garda Síochána who must show to the court that the Minister for Justice, Equality and Law Reform has consented to the proposal. This is a relatively serious engagement in any circumstances. It will not occur on the basis of a hurried telephone conversation or something of that nature but will require a relatively senior Garda officer to go before the High Court as opposed to the District Court. As a condition precedent, this officer must have persuaded the Minister that it is an appropriate case. Having done so, he or she must write out sworn information and swear to it before the court which must then decide that in the circumstances it considers it appropriate to issue the warrant. The process contains sufficient safeguards for all concerned.
As no amendment has been tabled on this issue, the Deputy may consider submitting one on Report Stage.
My concern is that the officers dealing with the matter in both countries should be of equivalent rank.
I have been told — I had forgotten — that in the European Arrest Warrant Bill 2003 which the select committee considered relatively recently some applications can be made by sergeants of the Garda Síochána. It is not, therefore, without precedent that this level of seniority should be chosen.
I am also opposed to that provision.
I will annoy the Deputy now. Unlike him, I have great faith in Garda sergeants
I have great faith in sergeants doing their duty but the duty provided for in the Bill is not relevant to them. If the procedure involves the High Court and the Minister, a high ranking Garda should also be involved, in keeping with ministerial dignity.
I must remember that the next time I am caught speeding in my private car.
What does the Minister mean by the term "the next time"? The implication is that he has already been caught speeding.
Question put and agreed to
SECTION 9.
I move amendment No. 12:
In page 10, subsection (4)(a), lines 30 and 31, to delete all words from and including “, if” in line 30 down to and including “directs,” in line 31 and substitute the following:
", as far as practicable and subject to such directions (if any) as the High Court may give,".
Under the current provisions, the court is not obliged to eliminate conditions on a sentence which are not available in Ireland. For example, Ireland has abolished hard labour, bread and water punishments and so forth. The Bill does not provide for the deletion of such conditions imposed in other jurisdictions. The amendment proposes to eliminate the use of unusual and inhumane conditions of detention. It would be useful to introduce parity of conditions in the legislation.
The amendment relates to the powers of the High Court to ensure any aspect of a sentence, other than its duration, which is less favourable than the equivalent Irish sentence shall not be imposed. Hard labour and chain gangs, used in other jurisdictions, would not be used if they were less favourable to the equivalent Irish conditions for prisoners. The Bill provides that those less favourable conditions shall not apply if the High Court so directs. The amendment proposes that such conditions shall not apply as far as practicable and subject to such directions, if any, that the High Court may give. It is a question of judgment as to whether, for instance, being required to participate in work is an additional onerous obligation on a prisoner.
International conventions prevent forced labour but basic duties such as keeping a cell tidy are normally cast upon a prisoner. One is not entitled to request contract cleaners to clean one's cell. It is better to leave the High Court with discretion and let people argue about the circumstances of the case rather than forcing the High Court to examine the issue where it may be entirely irrelevant. If somebody is required, for example, to serve a sentence imposed by a Portuguese court, it is not necessary to tie the High Court further than the draftsman did in the Bill, which gives jurisdiction to the court to inquire into this issue and to make a decision on it.
The converse may also be true. I do not know what the equivalent provision is in other European countries. The level of slopping out in our prisons is not the same in other countries. That might be another consideration. It is an unusual condition that people may not expect in this day and age and it is an issue. Inhumane practices are still used in the prisons of so called developed countries and that is the context in which the amendment has been tabled.
I am reminded of the phrase, "When in Rome, do as the Romans do". I do not know whether we will get to the point of providing menus in jails.
No, but it is not long since the provision of only bread and water stopped. The practices of solitary confinement and slopping out are as still bad as they were a century ago. They are usual forms of detention.
I am taking steps to end slopping out.
That will not happen for another five years at the earliest.
I cannot suspend the enactment of this legislation until everything is perfect in prisons.
The courts should be given discretion.
It would also, in terms of prison discipline, put one set of prisoners on a different basis to other sets. I am not keen to do that.
Amendment put and declared lost.
Section 9 agreed to.
Sections 10 to 12, inclusive, agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."
When does the Minister intend to make the order to bring the Bill into operation?
As soon as practicable following the passage of the legislation. I do not see significant administrative obstacles to the operation of the Bill. It will be sooner rather than later. I may have to examine a few questions such as rules of court or court procedure but I do not imagine they will delay the implementation of the legislation.
Question put and agreed to.
NEW SCHEDULES.
I move amendment No. 13:
In page 11, after line 36, to insert the following new Schedule.
SCHEDULE 1
Additional Protocol To The European Convention On The Transfer Of Sentenced Persons
Strasbourg, 18.XII.1997
Preamble
The member States of the Council of Europe, and the other States signatory to this Protocol,
Desirous of facilitating the application of the Convention on the Transfer of Sentenced Persons opened for signature at Strasbourg on 21 March 1983 (hereinafter referred to as "the Convention") and, in particular, pursuing its acknowledged aims of furthering the ends of justice and the social rehabilitation of sentenced persons;
Aware that many States cannot extradite their own nationals;
Considering it desirable to supplement the Convention in certain respects,
Have agreed as follows:
Article 1
General provisions
1. The words and expressions used in this Protocol shall be interpreted within the meaning of the Convention.
2. The provisions of the Convention shall apply to the extent that they are compatible with the provisions of this Protocol.
Article 2
Persons having fled from the sentencing State
1. Where a national of a Party who is the subject of a sentence imposed in the territory of another Party as a part of a final judgment, seeks to avoid the execution or further execution of the sentence in the sentencing State by fleeing to the territory of the former Party before having served the sentence, the sentencing State may request the other Party to take over the execution of the sentence.
2. At the request of the sentencing State, the administering State may, prior to the arrival of the documents supporting the request, or prior to the decision on that request, arrest the sentenced person, or take any other measure to ensure that the sentenced person remains in its territory, pending a decision on the request. Requests for provisional measures shall include the information mentioned in paragraph 3 of Article 4 of the Convention. The penal position of the sentenced person shall not be aggravated as a result of any period spent in custody by reason of this paragraph.
3. The consent of the sentenced person shall not be required to the transfer of the execution of the sentence.
Article 3
Sentenced persons subject to an expulsion or deportation order
1. Upon being requested by the sentencing State, the administering State may, subject to the provisions of this Article, agree to the transfer of a sentenced person without the consent of that person, where the sentence passed on the latter, or an administrative decision consequential to that sentence, includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing State once he or she is released from prison.
2. The administering State shall not give its agreement for the purposes of paragraph 1 before having taken into consideration the opinion of the sentenced person.
3. For the purposes of the application of this Article, the sentencing State shall furnish the administering State with :
(a) a declaration containing the opinion of the sentenced person as to his or her proposed transfer, and
(b) a copy of the expulsion or deportation order or any other order having the effect that the sentenced person will no longer be allowed to remain in the territory of the sentencing State once he or she is released from prison.
4. Any person transferred under the provisions of this Article shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order, for any offence committed prior to his or her transfer other than that for which the sentence to be enforced was imposed, nor shall he or she for any other reason be restricted in his or her personal freedom, except in the following cases:
(a) when the sentencing State so authorises: a request for authorisation shall be submitted, accompanied by all relevant documents and a legal record of any statement made by the convicted person; authorisation shall be given when the offence for which it is requested would itself be subject to extradition under the law of the sentencing State or when extradition would be excluded only by reason of the amount of punishment;
(b) when the sentenced person, having had an opportunity to leave the territory of the administering State, has not done so within 45 days of his or her final discharge, or if he or she has returned to that territory after leaving it.
5. Notwithstanding the provisions of paragraph 4, the administering State may take any measures necessary under its law, including proceedings in absentia, to prevent any legal effects of lapse of time.
6. Any contracting State may, by way of a declaration addressed to the Secretary General of the Council of Europe, indicate that it will not take over the execution of sentences under the circumstances described in this Article.
Article 4
Signature and entry into force
1. This Protocol shall be open for signature by the member States of the Council of Europe and the other States signatory to the Convention. It shall be subject to ratification, acceptance or approval. A Signatory may not ratify, accept or approve this Protocol unless it has previously or simultaneously ratified, accepted or approved the Convention. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
2. This Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the deposit of the third instrument of ratification, acceptance or approval.
3. In respect of any signatory State which subsequently deposits its instrument of ratification, acceptance or approval, the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit.
Article 5
Accession
1. Any non-member State which has acceded to the Convention may accede to this Protocol after it has entered into force.
2. In respect of any acceding State, the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of accession.
Article 6
Territorial application
1. Any State may at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which this Protocol shall apply.
2. Any Contracting State may, at any later date, by declaration addressed to the Secretary General of the Council of Europe, extend the application of this Protocol to any other territory specified in the declaration. In respect of such territory the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of such declaration by the Secretary General.
3. Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General. The withdrawal shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General.
Article 7
Temporal application
This Protocol shall be applicable to the enforcement of sentences imposed either before or after its entry into force.
Article 8
Denunciation
1. Any Contracting State may at any time denounce this Protocol by means of a notification addressed to the Secretary General of the Council of Europe.
2. Such denunciation shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of the notification by the Secretary General.
3. This Protocol shall, however, continue to apply to the enforcement of sentences of persons who have been transferred in conformity with the provisions of both the Convention and this Protocol before the date on which such denunciation takes effect.
4. Denunciation of the Convention automatically entails denunciation of this Protocol.
Article 9
Notifications
The Secretary General of the Council of Europe shall notify the member States of the Council of Europe, any Signatory, any Party and any other State which has been invited to accede to the Convention of:
(a) any signature;
(b) the deposit of any instrument of ratification, acceptance, approval or accession;
(c) any date of entry into force of this Protocol in accordance with Articles 4 or 5;
(d) any other act, declaration, notification or communication relating to this Protocol.
In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.
Done at Strasbourg, this eighteenth day of December 1997, in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe, to the other States signatory to the Convention and to any State invited to accede to the Convention.
Amendment put and declared lost.
I move amendment No. 14:
In page 11, after line 36, to insert the following new Schedule.
SCHEDULE 2
Schengen Convention
Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders
Official Journal L 239 , 22/09/2000 P. 0019-0062
CONVENTION
IMPLEMENTING THE SCHENGEN AGREEMENT
of 14 June 1985
between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders
The KINGDOM OF BELGIUM, the FEDERAL REPUBLIC OF GERMANY, the FRENCH REPUBLIC, the GRAND DUCHY OF LUXEMBOURG and the KINGDOM OF THE NETHERLANDS, hereinafter referred to as "the Contracting Parties",
TAKING as their basis the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at their common borders,
HAVING DECIDED to fulfil the resolve expressed in that Agreement to abolish checks at their common borders on the movement of persons and facilitate the transport and movement of goods at those borders,
WHEREAS the Treaty establishing the European Communities, supplemented by the Single European Act, provides that the internal market shall comprise an area without internal frontiers,
WHEREAS the aim pursued by the Contracting Parties is in keeping with that objective, without prejudice to the measures to be taken to implement the provisions of the Treaty,
WHEREAS the fulfilment of that resolve requires a series of appropriate measures and close cooperation between the Contracting Parties,
HAVE AGREED AS FOLLOWS:
TITLE I
DEFINITIONS
Article 1
For the purposes of this Convention:
internal borders: shall mean the common land borders of the Contracting Parties, their airports for internal flights and their sea ports for regular ferry connections exclusively from or to other ports within the territories of the Contracting Parties and not calling at any ports outside those territories;
external borders: shall mean the Contracting Parties' land and sea borders and their airports and sea ports, provided that they are not internal borders;
internal flight: shall mean any flight exclusively to or from the territories of the Contracting Parties and not landing in the territory of a third State;
third State: shall mean any State other than the Contracting Parties;
alien: shall mean any person other than a national of a Member State of the European Communities; alien for whom an alert has been issued for the purposes of refusing entry: shall mean an alien for whom an alert has been introduced into the Schengen Information System in accordance with Article 96 with a view to that person being refused entry;
border crossing point: shall mean any crossing point authorised by the competent authorities for crossing external borders;
border check: shall mean a check carried out at a border in response exclusively to an intention to cross that border, regardless of any other consideration;
carrier: shall mean any natural or legal person whose occupation it is to provide passenger transport by air, sea or land;
residence permit: shall mean an authorisation of whatever type issued by a Contracting Party which grants right of residence within its territory. This definition shall not include temporary permission to reside in the territory of a Contracting Party for the purposes of processing an application for asylum or a residence permit;
application for asylum: shall mean any application submitted in writing, orally or otherwise by an alien at an external border or within the territory of a Contracting Party with a view to obtaining recognition as a refugee in accordance with the Geneva Convention relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967, and as such obtaining the right of residence;
asylum seeker: shall mean any alien who has lodged an application for asylum within the meaning of this Convention and in respect of which a final decision has not yet been taken;
processing applications for asylum: shall mean all the procedures for examining and taking a decision on applications for asylum, including measures taken under a final decision thereon, with the exception of the determination of the Contracting Party responsible for processing applications for asylum pursuant to this Convention.
TITLE III
POLICE AND SECURITY
CHAPTER 5
TRANSFER OF THE ENFORCEMENT OF CRIMINAL JUDGMENTS
Article 67
The following provisions shall apply between the Contracting Parties which are Parties to the Council of Europe Convention on the Transfer of Sentenced Persons of 21 March 1983, for the purposes of supplementing that Convention.
Article 68
1. The Contracting Party in whose territory a penalty involving deprivation of liberty or a detention order has been imposed by a judgment which has obtained the force of res judicata in respect of a national of another Contracting Party who, by escaping to the national’s own country, has avoided the enforcement of that penalty or detention order may request the latter Contracting Party, if the escaped person is within its territory, to take over the enforcement of the penalty or detention order.
2. The requested Contracting Party may, at the request of the requesting Contracting Party, prior to the arrival of the documents supporting the request that the enforcement of the penalty or detention order or part thereof remaining to be served be taken over, and prior to the decision on that request, take the sentenced person into police custody or take other measures to ensure that the person remains within the territory of the requested Contracting Party.
Article 69
The transfer of enforcement under Article 68 shall not require the consent of the person on whom the penalty or the detention order has been imposed. The other provisions of the Council of Europe Convention on the Transfer of Sentenced Persons of 21 March 1983 shall apply mutatis mutandis.
TITLE VII
EXECUTIVE COMMITTEE
Article 131
1. An Executive Committee shall be set up for the purposes of implementing this Convention.
2. Without prejudice to the special powers conferred upon it by this Convention, the overall task of the Executive Committee shall be to ensure that this Convention is implemented correctly.
Article 132
1. Each Contracting Party shall have one seat on the Executive Committee. The Contracting Parties shall be represented on the Committee by a Minister responsible for the implementation of this Convention; that Minister may, if necessary, be assisted by experts, who may participate in the deliberations.
2. The Executive Committee shall take its decisions unanimously. It shall draw up its own rules of procedure; in this connection it may provide for a written decision-making procedure.
3. At the request of the representative of a Contracting Party, the final decision on a draft on which the Executive Committee has acted may be postponed for no more than two months from the date of submission of that draft.
4. The Executive Committee may set up working parties composed of representatives of the administrations of the Contracting Parties in order to prepare decisions or to carry out other tasks.
Article 133
The Executive Committee shall meet in the territory of each Contracting Party in turn. It shall meet as often as is necessary for it to discharge its duties properly.
TITLE VIII
FINAL PROVISIONS
Article 134
The provisions of this Convention shall apply only in so far as they are compatible with Community law.
Article 135
The provisions of this Convention shall apply subject to the provisions of the Geneva Convention relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967.
Article 136
1. A Contracting Party which envisages conducting negotiations on border checks with a third State shall inform the other Contracting Parties thereof in good time.
2. No Contracting Party shall conclude with one or more third States agreements simplifying or abolishing border checks without the prior agreement of the other Contracting Parties, subject to the right of the Member States of the European Communities to conclude such agreements jointly.
3. Paragraph 2 shall not apply to agreements on local border traffic in so far as those agreements comply with the exceptions and arrangements adopted under Article 3(1).
Article 137
This Convention shall not be the subject of any reservations, save for those referred to in Article 60.
Article 138
As regards the French Republic, the provisions of this Convention shall apply only to the European territory of the French Republic.
As regards the Kingdom of the Netherlands, the provisions of this Convention shall apply only to the territory of the Kingdom in Europe.
Article 139
1. This Convention shall be subject to ratification, acceptance or approval. The instruments of ratification, acceptance or approval shall be deposited with the Government of the Grand Duchy of Luxembourg, which shall notify all the Contracting Parties thereof.
2. This Convention shall enter into force on the first day of the second month following the deposit of the final instrument of ratification, acceptance or approval. The provisions concerning the setting up, activities and powers of the Executive Committee shall apply as from the entry into force of this Convention. The other provisions shall apply as from the first day of the third month following the entry into force of this Convention.
3. The Government of the Grand Duchy of Luxembourg shall notify all the Contracting Parties of the date of entry into force.
Article 140
1. Any Member State of the European Communities may become a Party to this Convention. Accession shall be the subject of an agreement between that State and the Contracting Parties.
2. Such an agreement shall be subject to ratification, acceptance or approval by the acceding State and by each of the Contracting Parties. It shall enter into force on the first day of the second month following the deposit of the final instrument of ratification, acceptance or approval.
Article 141
1. Any Contracting Party may submit to the depositary a proposal to amend this Convention. The depositary shall forward that proposal to the other Contracting Parties. At the request of one Contracting Party, the Contracting Parties shall re-examine the provisions of the Convention if, in their opinion, there has been a fundamental change in the conditions obtaining when the Convention entered into force.
2. The Contracting Parties shall adopt amendments to this Convention by common consent.
3. Amendments shall enter into force on the first day of the second month following the date of deposit of the final instrument of ratification, acceptance or approval.
Article 142
1. When Conventions are concluded between the Member States of the European Communities with a view to the completion of an area without internal frontiers, the Contracting Parties shall agree on the conditions under which the provisions of this Convention are to be replaced or amended in the light of the corresponding provisions of such Conventions.
The Contracting Parties shall, to that end, take account of the fact that the provisions of this Convention may provide for more extensive co-operation than that resulting from the provisions of the said Conventions.
Provisions which conflict with those agreed between the Member States of the European Communities shall in any case be adapted.
2. Amendments to this Convention which are deemed necessary by the Contracting Parties shall be subject to ratification, acceptance or approval. The provision contained in Article 141(3) shall apply on the understanding that the amendments will not enter into force before the said Conventions between the Member States of the European Communities enter into force.
In witness whereof, the undersigned, duly empowered to this effect, have hereunto set their hands.
Done at Schengen, this nineteenth day of June in the year one thousand nine hundred and ninety, in a single original in the Dutch, French and German languages, all three texts being equally authentic, such original remaining deposited in the archives of the Government of the Grand Duchy of Luxembourg, which shall transmit a certified copy to each of the Contracting Parties.
For the Government of the Kingdom of Belgium
For the Government of the Federal Republic of Germany
For the Government of the French Republic
For the Government of the Grand Duchy of Luxembourg
For the Government of the Kingdom of the Netherlands
Amendment put and declared lost.
Title agreed to.
Bill reported without amendment.