SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN'S RIGHTS debate -
Tuesday, 20 Nov 2007

International Agreements: Motion.

Chairman

This select committee has been convened for the purposes of the consideration of the following: a proposal regarding the approval of terms of agreement between the Government of Ireland and the Government of Hong Kong Special Administrative Region of the People's Republic of China concerning the surrender of fugitive offenders; the Criminal Law (Human Trafficking) Bill 2007; and the committee report on the agreement between Ireland and the Government of Hong Kong. I welcome the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, and his officials.

I remind members that the committee is required to consider the motion and report back to the Dáil by 21 November 2007. Accordingly, when we dispose of the debate on the motion I propose we consider the Committee Stage amendments to the Criminal Law (Human Trafficking) Bill 2007 and that when that is completed, we consider the draft report on the motion. Is that agreed? Agreed.

Deputy Pat Rabbitte

Does that imply the Chairman intends to proceed through the entire Criminal Law (Human Trafficking) Bill 2007 today? We are engaged to be in the House when the Minister introduces Second Stage of another Bill. Does the Chairman intend to keep us here until midnight?

Chairman

It does imply that. However, I propose that prior to the end of this meeting, we take the report back, which is only a formality.

Deputy Pat Rabbitte

Agreed.

Minister for Justice, Equality and Law Reform (Deputy Brian Lenihan)

Perhaps I could brief the Opposition in private session on other items in the legislative tunnel? It would only take a few minutes.

Chairman

We may have time later. I ask that all mobile telephones be turned off. I ask the Minister to begin on the proposal regarding the approval of terms of agreement between the Republic of Ireland and the Government of Hong Kong Special Administrative Region of the People's Republic of China concerning the surrender of fugitive offenders. The terms of the motion are:

That Dáil Éireann approve the terms of the agreement between the Government of Ireland and the Government of the Hong Kong Special Administrative Region of the People's Republic of China concerning the surrender of fugitive offenders, a copy of which was laid before Dáil Éireann on 5 October 2007.

Deputy Brian Lenihan

I congratulate Deputy Peter Power on his appointment as Chairman. I am pleased to appear before the committee on the occasion of its consideration of this motion. I hope the members of the committee enjoy their work and I wish them well in their endeavours. I hope to work with them during the 30th Dáil and I am anxious, as I indicated previously, to keep the committee briefed on legislative developments as they arise so that members have some warning of what is afoot.

The motion before the committee seeks approval of the terms of an agreement between Ireland and the Hong Kong Special Administrative Region, SAR, of the People's Republic of China on the surrender of fugitive offenders. I signed the agreement on behalf of Ireland, subject to the approval of the Dáil, on 5 October on the occasion of a visit to Dublin by the Hong Kong Secretary for Justice. The purpose of the agreement is to facilitate extradition between Ireland and the Hong Kong SAR. The agreement facilitates co-operation in extradition by setting out an agreed range of offences in respect of which surrender will apply and the procedures to be followed in dealing with requests for extradition.

It is interesting and may be helpful to point out the status of Hong Kong, which is not a sovereign state. It is a special administrative region of the People's Republic of China with certain delegated autonomy regarding the conduct of its external affairs. This treaty falls within the area of delegated autonomy. The slogan of "one country, two systems" is applied to the position of Hong Kong in modern China.

The agreement was laid before the Dáil on 5 October. The text and an explanatory note have been circulated to members of the committee to assist in their consideration of the motion. Most of the provisions of the agreement are standard in extradition agreements. Subject to the committee's agreement, I do not propose to take up its time reciting these standard provisions. However, if there are any in particular that members wish me to address I will be happy to address them. Certain other provisions are not standard and reflect the particular legal and constitutional principles of the parties. I will now deal in detail with the more significant of these.

Article 2 sets out a list of offences that are extraditable offences for the purposes of the agreement. The "threshold" approach by which all offences meeting a minimum sentence threshold are extraditable is the norm in modern extradition agreements. However, Hong Kong law requires the "list" approach, whereby all eligible categories of offences are listed. Article 2 represents a combination of both approaches. It specifies the minimum threshold of a penalty of imprisonment or detention of at least one year for surrender to apply, the dual criminality requirement and an extensive list of eligible offences.

Article 3 sets out the position regarding the extradition of own nationals by the parties. Hong Kong is not authorised to formally provide in an international agreement for the extradition of nationals of the People's Republic of China, even those People's Republic of China nationals who are permanent residents of Hong Kong. Ireland normally permits the extradition of our nationals on the basis of reciprocity only. Accordingly the article provides that each party reserves the right to refuse the surrender of its own nationals. In the case of the Hong Kong SAR the reference is to nationals of the People's Republic of China. Where this right is exercised the requesting party may ask that the matter be referred to the competent authorities of the requested party to consider prosecution there.

Article 4 of the agreement imposes a "sufficiency of evidence" requirement. Normally, the existence of a warrant with limited supporting documentation is all that is required in an extradition request. However, Hong Kong law requires that requests must be accompanied by or supported by sufficient evidence to justify the committal for trial of the person sought. Our authorities are satisfied they can meet this requirement. As a matter of policy, Ireland operates these types of agreements on the basis of reciprocity. Accordingly, Article 4 applies the "sufficiency of evidence" requirement to requests from both parties.

Article 5 sets out the mandatory grounds for refusal of requests, including political offences and in the case of prosecution or punishment on account of race, religion, nationality, political opinions, sex, sexual orientation, language or ethnic origin. Article 6 sets out the discretionary grounds for refusal of requests which include grounds of delay and humanitarian considerations.

Article 17.2 deals with onward surrender. It prohibits the surrender or transfer of a surrendered person beyond the jurisdiction of a requesting party save in accordance with the provisions of the article. Thus a person extradited by Ireland to Hong Kong cannot be surrendered or transferred to another jurisdiction unless the requirements of the article are met. This is an important safeguard and one which I hope addresses concerns that, for example, Falun Gong members or Tibetan nationals extradited to Hong Kong by Ireland could be, unilaterally, re-surrendered to mainland China. In this regard, I am sure the committee will note the relevance of Articles 5 and 6 as I have explained them.

The statutory basis for Ireland's extradition policy is set out in the relevant legislation dating from 1965 to 2001 in the case of states other than EU member states. Extradition agreements normally arise between sovereign states. As I mentioned earlier, the Hong Kong SAR is not a sovereign state and the definition of "country" in the Extradition Act 1965 has been amended to include a "territory" which covers its status, to ensure a basis in Irish law for this agreement.

Members will be aware that Article 29.5.2° of the Constitution provides that any international agreement involving a charge on State funds must have its terms approved by this House before it can bind the State. Article 14 of the agreement in its terms imposes such a charge. The motion seeks the relevant constitutional approval.

Our international obligations in the field of extradition are embedded in multilateral arrangements which, by their nature, provide only the general broad-based principles of co-operation. Bilateral agreements, such as this one with the Hong Kong SAR, offer a valuable opportunity to provide for arrangements which can meet any needs arising in a more focused and tailored fashion. I am pleased that we have been able to negotiate with Hong Kong a strong and effective agreement that takes account of the fundamental legal and constitutional principles of both jurisdictions. When I had the honour of meeting the Secretary for Justice, I was struck by the fact that common law continues to thrive in Hong Kong, even though it is a special administrative region with a legal system that co-exists with an entirely different legal system within a single country. I commend the motion to the committee. I will be pleased to answer any questions.

Chairman

I thank the Minister for his remarks.

Deputy Denis Naughten

I apologise for the absence of my colleague, Deputy Flanagan, who is otherwise engaged at this time. This agreement is a positive development. I am glad measures have been put in place to protect members of Falun Gong and Tibetan nationals. Such protections are critically important.

I would like the Minister to clarify a couple of matters. Agreements of this nature are already in place between Hong Kong and several other EU member states. Why has the agreement not been rolled out to more member states? Is it merely a question of administrative delays? Has Ireland reached similar arrangements with the People's Republic of China? Have there been any discussions on that? Is anything happening in that specific area?

Article 10 of the agreement provides for the translation of all relevant documents. The Minister, Deputy Brian Lenihan, is aware that warrants issued by EU member states seeking the extradition of certain people from Ireland have failed on a couple of occasions as a consequence of language or translation problems. Have checks and balances been included in this agreement to prevent such difficulties? Is the English language to be used for issuing official documentation? Can the Minister provide some clarity on that?

Article 2 of the agreement not only relates to specific types of offences, but goes into detail about the offences, such as murder, etc. What will happen in the future when new offences are created in both jurisdictions? The select committee will deal with human trafficking legislation later today. Does subhead 6 of the agreement, which deals with the issue of trafficking in slaves or other persons, cover the legislation to be considered by the committee today? How does Ireland intend to deal with that issue in the future?

Deputy Pat Rabbitte

Like Deputy Naughten, I do not see any reason not to welcome the agreement reached by Hong Kong and Ireland in respect of the surrender of fugitive offenders. It appears that adequate safeguards have been built into the agreement. The Minister, Deputy Brian Lenihan, seems to have confirmed my impression that while Ireland permits extradition on the basis of reciprocity only, we are dealing with exceptional circumstances in this instance. I did not know that Hong Kong had the autonomy to enter into agreements of this nature. I gather from the Minister's remarks that the autonomy to do this has been delegated to Hong Kong by the People's Republic of China. What is the attitude of the People's Republic of China to Hong Kong's decision to reach these agreements on a number of fronts? Do these agreements have the full authority, support and encouragement of the People's Republic of China? Has this initiative been taken by Hong Kong alone as part of an attempt to preserve its uniqueness from mainland China? Returning to the question of the reciprocity with respect to extradition of a country's own nationals, this does not mean to say that there still would not be extradition of each country's nationals. Will Hong Kong be required to seek approval in particular cases and how will that operate?

The threshold approach seems to set the bar at a fairly low level, a minimum of 12 months, six months unserved. This seems to be a reasonably low threshold to be jumped although the Minister may say that once the agreement is in place there is no reason it would not be availed of. Like Deputy Naughten, I have had some representations in respect of what would happen in the case of Falun Gong members finding themselves in circumstances envisaged by the Minister in Article 17.2 which deals with onward surrender. If I understand correctly what he has said, it is that extraditions in those circumstances may not be passed on to mainland China as this is circumscribed in terms of Article 17.2.

Articles 5 and 6 are very important safeguards. Article 5 sets out the mandatory grounds for refusal of requests. People will be able to have requests refused on their behalf where the issues relate to political opinions, race, religion, whatever it is. Article 6 sets out the discretionary grounds for refusal of requests. Those safeguards are built in and ought to operate successfully.

Deputy Aengus Ó Snodaigh

I welcome this motion but a number of areas are of concern to me. Hong Kong can make and pass its own laws until 2047 and this is to be welcomed but in the meantime, there have been several recent cases in which the Hong Kong Executive sought to reinterpret basic law from the National People's Congress Standing Committee. In so doing, the Hong Kong Executive has sought to introduce legislation that would probably be covered under Articles 5 and 6 of the agreement but which aims to curb the right to freedom of expression and association and assembly. Thankfully this was withdrawn from the legislation before it was passed but the fact that it was even contemplated is worrying. While I welcome Articles 5 and 6 in the proposal, we need to go further. Even though there are shortcomings in our legislation, we should encourage the Hong Kong Executive to fully embrace the international covenant on civil and political rights. This would probably underpin and ensure all future legislative and administrative developments would comply with our aspirations. This would also ensure that the agreement will stand the test of time and that in future we would not have to repeal such a motion because Hong Kong or China had reverted to the situation which pertained in 2003 whereby the Hong Kong Executive was moving towards limiting rights to freedom of expression and association. I am happy that the motion should pass. However, it is one of those areas where we should keep a watchful eye to ensure human rights are fully protected in the future as Hong Kong moves towards coming under the full power of the central Chinese Government.

Chairman

I thank the Deputy. I invite the Minister to address some of the questions.

Deputy Brian Lenihan

In reply to the points raised by Deputy Naughten, Hong Kong has bilateral arrangements with other EU states. The initiative for this agreement came from the Hong Kong Special Administrative Region in 2004. It is part of the wider strategy of the special administrative region to build direct bilateral links with the west. That has been done with the full sanction of China. The Hong Kong Special Administrative Region has negotiated agreements in the criminal justice areas of extradition, transfer of prisoners and mutual legal assistance with several European Union states, including the United Kingdom, Germany, Belgium, Portugal, the Netherlands, France and Italy.

We have extradition arrangements with countries other than EU states. Within the EU we now have the European arrest warrant system. The extradition treaty is now the format for the surrender of offenders with jurisdictions other than those in the European Union.

Deputy Naughten raised the issue of language difficulties. The Hong Kong authorities intend to use the English language for the purpose of this treaty, and linguistic difficulties should not arise between the respective central authorities designated in the treaty, unlike in the case of the arrest warrant procedures with some of the EU states. Without being bold, I must say this illustrates the issue of the opt-out and the opt-in in the European Union context very neatly but I will not dwell on that today.

Deputy Denis Naughten

The Minister will dwell on it later.

Deputy Brian Lenihan

I referred to our arrangements with the European Union. The European arrest warrant is very important and is something we have to keep under review. If technical defences are used to obviate it, we need to address that.

Regarding Article 2, Deputy Naughten asked a specific question about trafficking and a more general question about whether with the evolution of more offences, they would be captured by it. The practice in this treaty, as in other treaties, is to set out in broad terms categories of different types of offence. They are set out in Article 2, but their categoric reference in the international treaty means that they do not have precisely the same meaning as they carry in domestic law so it is open to the courts to adopt an interpretation as to whether there is correspondence between the domestic legislation and the envisaged concept in the extradition treaty.

For example, in the case of trafficking, which was instanced by Deputy Naughten, and is a very topical example, if one examines Article 2 (xi) which relates to kidnapping, abduction, false imprisonment, unlawful confinement, dealing and trafficking in slaves or other persons, and taking a hostage, that is clearly wide enough to encompass the legislation currently before the House on trafficking. Occasionally, a difficulty can arise because no list can be exhaustive, but a reasonable attempt has been made in this treaty to be comprehensive in the description of envisaged offences.

Deputy Rabbitte raised the issue of Hong Kong. He is aware that Hong Kong has this arrangement but he sought clarification on it. The arrangement is that Hong Kong is a special administrative region of the People's Republic of China with certain delegated autonomy in regard to the conduct of its external affairs. It is not a sovereign state. The government of the special administrative region has the ability to make appropriate arrangements with foreign states for reciprocal judicial co-operation, subject to the authorisation of the central Government of the People's Republic of China. That authorisation has been received.

On the occasion of his visit to Dublin, the Minister for Justice was accompanied by the ambassador of China at the relevant function. This is the arrangement China has arrived at to address the historic issue of Hong Kong. A very small part of Hong Kong was a Crown colony. The greater part of it, in the Kowloon Peninsula, was leased by imperial China to the British authorities. With the approaching termination of the lease an arrangement was arrived at whereby Hong Kong could preserve her identity in a wider China. The slogan adopted was "one country, two systems". Substantial guarantees have been entrenched in a basic law in Hong Kong and in the wider arrangements which define the relationships between mainland China and Hong Kong to ensure that while Hong Kong is an integral part of China it continues to have its own system. Since the implementation of the basic law on 1 July 1997, Hong Kong has a comprehensive written constitutional document for the first time in its history. The Contract for Continuity for Hong Kong ensures the following: that its capitalist system and way of life will remain unchanged for 50 years; a high degree of autonomy save in respect of defence and foreign affairs; executive, legislative and independent judicial power; the authority to conduct external economic and trade affairs; the continuity of the common law system and laws previously in force; and freedoms of the press, speech, religion and travel for its citizens will remain intact. Hong Kong has continued to flourish under this arrangement. The people of Hong Kong are conscious of the many connections they have had with Ireland down the years.

Deputy Rabbitte raised the question of the initiative taken by Hong Kong. Hong Kong has approval for this. He referred to the relatively low threshold, in terms of the quantum of punishment, which a prospective extraditee would have to face. I am advised that this is a standard provision in treaties of this type. He also referred to Articles 5 and 6 and the double protection they gave.

All speakers raised the relationship between the special administrative region and the rest of China and the security of the guarantee in relation to China. The agreement applies to the territory of Hong Kong Special Administrative Region only. Article 17.2 deals with onward surrender. It prohibits the surrender or transfer of a surrendered person beyond the jurisdiction of a requesting party, Ireland or the territory of Hong Kong as appropriate, save in accordance with the provisions of the article. Thus, a person extradited by Ireland to Hong Kong cannot be surrendered or transferred to another jurisdiction, including mainland China, unless the requirements of the article are met. Article 17 states that Ireland has a veto on any such transfer. Our consent would be required. This is an important safeguard which, I hope, addresses the concerns raised by Deputies Rabbitte and Ó Snodaigh and all speakers that Falun Gong members or Tibetan nationalists extradited to Hong Kong by Ireland could be re-surrendered unilaterally to mainland China. The agreement also provides for the refusal of extradition on other designated human rights grounds.

With regard to Deputy Rabbitte's question regarding the People's Republic of China, preparation of information is at a very early stage and preparation of an international approach to extradition requests are not far advanced. Hong Kong's legal culture is very similar to ours, although it is more exaggeratedly imperial than ours. In the ceremonies that characterise the opening of their law terms there is a mass display of wigs which would no longer be seen in this jurisdiction, as well as oriental garb.

I addressed the main points raised by Deputy Ó Snodaigh in my replies to other Deputies. I thank members for their attention to this matter.