The purpose of today's meeting is the consideration of a motion on the US agreement on extradition and mutual legal assistance. We were also due to continue consideration of the Immigration, Residence and Protection Bill 2008, but due to a Government meeting scheduled at 1 p.m., the Minister for Justice, Equality and Law Reform will not be able to attend. Accordingly, our consideration of the Bill is deferred to tomorrow morning.
EU-US Agreements on Extradition and Mutual and Legal Assistance: Motion.
What time will we start tomorrow morning?
We will start at 10 a.m. I welcome the Minister of State at the Department of Foreign Affairs, Deputy Peter Power, who was my predecessor as Chairman of this committee. I take the opportunity to congratulate him on his appointment and I wish him well. I also welcome his officials, who are attending in order to assist in our consideration of the motion. We will receive a short presentation from the Minister of State, which will be followed by a question and answer session.
I thank the Chairman for his good wishes. This issue relates to a motion under Article 29.5.2° of the Constitution regarding bilateral instruments between Ireland and the USA on extradition and mutual legal assistance, giving effect to the EU and US agreements on extradition and mutual legal assistance. These were considered by the joint committee last week.
The EU-US agreements on extradition and mutual legal assistance were signed in Washington on 23 June 2003 and are to be given effect by way of bilateral instruments between each member state and the USA which incorporate the terms of the EU level agreements. When all member states have completed their internal procedures to give effect to the EU-US agreements, the EU will then, by way of a Council decision, adopt the EU-US agreements. There will then be an exchange of notifications between the EU and the US confirming that the necessary internal procedures have been completed by the parties. The EU-US agreements and the bilateral instruments between member states and the US giving effect to those agreements will enter into force three months after this exchange.
The Ireland-US instruments to give effect to the EU-US agreements were negotiated bilaterally with the US and were signed in Dublin in July 2005. Ireland has had treaties on extradition and mutual legal assistance with the USA since 1983 and 2001 respectively and this is reflected in the instruments. Each instrument contains a statement of how the provisions of the EU level agreement are to be applied and includes, as an annex, a revised version of the original treaty amended and updated to the extent necessary to apply the EU-USA agreement.
The instruments have been laid before the Houses and the texts and explanatory notes have been circulated to members of the committee to assist in their consideration of the motions. Most of the provisions of the instruments are procedural in nature. Subject to the agreement of the committee, I do not propose to take up the time of the committee in reciting, in detail, every provision of the instruments, but if there are any in particular that members wish me to address I will be happy to do so. I will now deal with the more significant provisions of the bilateral instruments, beginning with the instrument on extradition.
Article 1 is an acknowledgement by both parties that the EU-US agreement will be applied to the 1983 treaty in the terms listed at (a) to (i). I will deal with these as they arise in the revised text of the treaty. Article 2 confirms that the revised text in the annex to the instrument is the text that will apply upon entry into force of the instrument. Articles 3 and 4 specify the offences and requests for extradition to which the instrument applies. Article 5 deals with entry into force of the instrument and provides that it shall be terminated in the event of termination of the EU-US agreement.
I will now address the main changes to the 1983 treaty in the revised text in the annex to the instrument. Article 6 (Capital punishment) has been modified having regard to Article 13 of the EU-USA agreement. Under the 1983 treaty, Ireland could require guarantees, in advance of the person being handed over, that the death penalty, if imposed, would not be carried out. Under the new arrangements, it will now be possible to seek guarantees that it will not be imposed. If the requesting state does not accept the conditions, the request for extradition can be denied. Article 7 bis is new, reflecting Article 9 of the EU-USA agreement and is expressed in discretionary terms. It provides that the requested state may temporarily surrender the person sought to the requesting state for the purpose of prosecution. The person must be returned to the requested state at the conclusion of the proceedings against that person. Article 8 sets out the procedure to be followed in requests for extradition and this article has been modified to reflect Article 5 of the EU-USA agreement. Article 8.7 provides that documents which bear the certification or seal of the department of justice of the requesting state will be admissible in extradition proceedings in the requested state without additional certification. Article 8.8 has been inserted to reflect Article 7.1 of the EU-USA agreement. The current arrangements remain in place, whereby requests for provisional arrest may be sent directly between the departments of justice in each party, rather than through the diplomatic channels. However, a change is being made in the delivery of the formal request following provisional arrest. It is now being proposed that, in cases following provisional arrest, the request may be delivered to the embassy of the requested party in the requesting party and that such delivery amounts to formal receipt by the requested party. Article 8 bis is new, reflecting Article 14 of the EU-USA agreement. It deals with situations where the requesting state contemplates the submission of particularly sensitive information in support of a request for extradition. Consultations may take place to determine the extent to which the information can be protected by the requested state. Article 8 is new, reflecting Article 11 of the EU-USA agreement. It introduces a simplified surrender procedure where a person consents to extradition.
I will now deal with the mutual assistance instrument. This instrument together with the EU-US agreement is a further example of the continued efforts being made at international level to combat serious crime, including terrorism, drug trafficking and organised crime. The annexe to the Ireland-US instrument contains the treaty between the two states as updated to reflect the provisions of the EU-US agreement. The scope of the assistance to be provided under the treaty is contained in Article 1. This article requires parties to provide assistance in connection with the investigation, prosecution and prevention of offences and in proceedings related to criminal matters. The circumstances in which assistance would be provided was extended in light of Article 8 of the EU-US agreement which creates an obligation to provide assistance to administrative authorities in relation to an investigation which may give rise to a criminal investigation or prosecution.
I do not intend to recite every provision of the instrument. However, I will highlight the types of assistance available under the treaty and, in particular, the new forms of assistance introduced in light of the EU-US agreement. The types of assistance available under the bilateral treaty include provision in Article 11 for the transfer, with consent, of persons in custody for the purpose of assistance under the treaty. Article 13 provides for the service of documents on a person in a requested state. Article 14 allows for requests for the search, seizure and delivery of any item to the requesting state. Such action will be carried out in accordance with the laws of the requested state. These forms of assistance were set out in the original bilateral treaty. The new forms of assistance included in the updated treaty are contained in Article 16 bis, reflecting Article 4 of the EU-US treaty, providing for the identification of bank accounts and banking information. Article 16 corresponds to Article 5 of the EU-US treaty and allows for the establishment of joint investigation teams. Such teams may be established and operated for the purpose of facilitating a criminal investigation or prosecution. Article 16 quarter, corresponds to Article 6 of the EU-US agreement and allows for the use of video transmission technology for taking testimony from a witness or expert in a proceeding for which mutual assistance is available. The Ireland-US treaty has been given force of law in the Irish State by virtue of section 94 of the Criminal Justice (Mutual Assistance) Act 2008, which was passed and dealt with by this committee. The relevant provisions of that Act will have effect in relation to requests for mutual legal assistance between the State and the US. Section 94 of the 2008 Act also clarifies that section 7 of the Data Protection Act 1988 providing for a duty of care owed by data controllers and data processors in respect of the use of data applies to information or evidence obtained under the treaty. The Data Protection Acts 1998 to 2003 also apply to such data in respects other than those related to their use.
I commend the motion to the committee and I will be pleased to answer any questions members may have.
I welcome the Minister of State to the committee as presiding Minister rather than as presiding Chair and I wish him well in his ministerial duties. The committee dealt with this issue last week. It rings some bell in my memory.
No, not quite; it was something similar.
I have one question to ask the Minister of State and it is about Article 6 which deals with capital punishment. Under the pre-reformed treaty, Ireland could seek guarantees that capital punishment would not be carried out and now Ireland can seek guarantees that it cannot be imposed or shall or may not be imposed. I welcome this provision in so far as it can be sought. I presume there will be some cases where these guarantees may not be forthcoming.
For example, what sanctions, conditions or terms could an American state impose on an Irish person who may be subjected to an extradition application from Ireland to return here? I would have thought that in terms of sentencing, our legal system, courts and criminal justice system would not be subjected to conditions that another jurisdiction might impose. We now appear to have the power to impose conditions on the manner in which US courts might treat an individual, with particular reference to capital punishment, which does not apply here. Would it be possible for representations to be made and, if so, what would the legal status of such representations be from an American state? In terms of our sentencing policy, would it be possible for conditions to be imposed in any way that might interfere adversely with the freedom under our Constitution to decide criminal justice matters without any influence from another state?
The Deputy dealt with the EU-US agreement last week in committee. The reason this motion is being brought before the committee now is that the EU-US agreement amends in some respects the existing bilateral arrangements between Ireland and the US, mainly in procedural ways. It is before the committee in so far as it changes the Irish-US bilateral arrangements, but it is essentially the same document.
On the question of guarantees being sought, the treaty provides that the provision of guarantees is mutual in nature. On this section relating to the death penalty, we can seek guarantees. We would not extradite if the death penalty applied to a particular offence. However, we can extradite and seek guarantees on the death penalty. In terms of reciprocity, that does not really come into it because by definition the US cannot extradite somebody to Ireland on foot of a crime which carries the death penalty, since we do not have it. As to whether one can impose conditions concerning offences, other than offences carrying the death penalty——
Of course, we do not have the death penalty.
—— it is not, I understand, covered by the treaty. The treaty just says that once there is an offence recognised as being an extraditable one, extradition must take place subject to the relevant conditions. However, in terms of extraditing subject to conditions, that is not part and parcel of the treaty.
I join Deputy Flanagan in congratulating the Minister of State and wish him well in his important post. In so far as I can see, this instrument is about making extradition between Ireland and the United States more efficient by simplifying procedures and correcting weaknesses that were there in the old arrangements. The only reason I know that is that I have been listening to the Minister of State for the past ten or 15 minutes. The only information I received on this was a note from my party Whip, but one may as well be looking into a bush because I have no idea to what it refers. It is completely opaque, impenetrable and impossible to understand. The only bit of it I understood was that the Minister of State is anxious to deal with it urgently because we were running out of time — one of four member states lagging behind.
It is not at all unusual for this committee to find itself seized of a matter that might have originated in the Justice and Home Affairs Council, which none of us has attended, yet we are expected to make an intelligent assessment here and nod it through. If motions like this one are to be presented to this committee in bare outline, or with the kind of note I got from the Whip, the Minister of State and the Department must undertake to furnish members of the committee with some background information, otherwise our job is impossible. I was not here on the last occasion because of a clash of meetings, which is another consideration, but not the Minister of State's problem. I do not know how much of this matter was dealt with on the last occasion and anyway I do not care because the pattern is that we are getting important matters like this without back-up information so that we can take expert advice. This is an important subject and off the top of my head I have no objection to it. I do not see any reason there ought not be efficient extradition arrangements between two civilised states, but we ought to know what we are talking about.
The Minister of State's script says that the instrument has been laid before the House, but not too many Deputies have time to access it in the Oireachtas Library. Those who would be minded to do so probably would not be able to understand it. The Minister of State also said that explanatory notes have been circulated to members of the committee. Maybe my office is to blame but I did not see any explanatory note. No doubt the Minister of State will tell me——
On a point of information, they would have been circulated prior to last week's meeting with the agenda for that meeting because what we were dealing with was substantially the same.
How does that help us? We come into a meeting to deal with an instrument like this that probably took months or years to put in place, yet we are expected to respond to it on the basis of whatever was circulated at the meeting. I do not want to labour the point, but——
It was not circulated at the meeting. It was circulated prior to the meeting.
This is not the first time that we have been left with scant information about what some of these complex instruments are about. The Department of Justice, Equality and Law Reform and the Minister should undertake to furnish the spokespersons, at least, when we are preparing to take up something like this, deriving from bilateral negotiations or from the justice and home affairs ministers' meetings in Brussels.
I fully accept the point the Deputy is making. We will convey to the Minister's office the fact that members of the committee are not happy with the level of information that has been provided.
Thank you, Chairman. I do not have any difficulty with the process of extradition being operated efficiently and with safeguards between our two countries. I am not entirely clear what offences are expressly encompassed. Theoretically, if one could be liable to capital punishment in the other jurisdiction, they are obviously serious offences but of what nature?
In respect of the mutual assistance instrument, where the Minister of State referred to the Article 11 types of assistance available under the bilateral treaty for the transfer, with consent, is transfer the transaction of the actual extradition itself or is something else intended by that term "transfer"?
Are there protections in the instrument so that when we consent to an extradition, the person concerned is tried in the US conventional criminal courts? If I am extradited from here, could I end up in Guantanamo Bay? What safeguards apply in that regard? I do not have any other questions.
I thank Deputy Rabbitte for his good wishes. His point about the briefing documentation is noted and will be conveyed in the normal way.
On the question of what offences are covered, all offences carrying a sentence greater than one year are extraditable, subject to certain offences related to political matters and subject to the death penalty provisions which were raised by Deputy Flanagan.
On the question of whether the transported or extradited person will be tried in accordance with the laws of the receiving state, the obligation is to prosecute the person in accordance with the laws of that state. I cannot answer the net question as to whether the laws of the United States of America provide for transfer from mainland USA to Guantanamo Bay. I would like to think that Deputy Rabbitte is safe in that regard.
Are others safe? Presumably, the bilateral agreement does not apply only to citizens of the two states and anybody resident in this State could be liable to be extradited even if he or she was not a citizen. If a person resident here who is not a citizen is extradited, theoretically, could he or she end up in Guantanamo Bay?
The extradition warrant in the normal way would contain all the details of the offence, the nature of the crime and the reasons for the extradition, and that is deposited through diplomatic channels with the requested state, namely, Ireland. The nature of the crime and the jurisdiction in which that crime is to be tried would be apparent from the warrant documentation.
I welcome the Minister of State, Deputy Peter Power, congratulate him on becoming a Minister and wish him well in the future. We all worked with Peter, as a former member of this committee, particularly on the Barron report in the previous Dáil and then as Chairman in the new Dáil. He will suit his new position admirably.
I would share Deputy Rabbitte's concern about the presentation of this information. Initially, I thought I was reading the Lisbon treaty again and I was really getting confused. It is important that the Minister of State brings back the strong message that the people need clear information on such complex instruments. There are situations arising on which we need to be well briefed so that we know what we are getting into. I ask the Minister of State to bring that message back forcefully.
I wish to focus on Article 6. At the previous meeting I raised my concerns about human rights issues in the United States. Last week at the joint committee I spoke of the case of the Miami Five, the five Cubans who are in jail in America for trying to prevent a terrorist attack on their own country, and the way they are being treated. I would have concerns about the human rights record of the United States.
However, I welcome Article 6 because under the new arrangements it will be possible to seek guarantees that the death penalty will not be imposed. I welcome that section, which is a step forward.
I have a concern. How does that sit with the US authorities? I would need to know more about how they will react to these guarantees being sought. I cannot imagine the "hang 'em, flog 'em" brigade in America accepting European countries such as Ireland telling them what to do within their judicial system. I want to know how that provision sits with the US.
Article 16 allows for the use of video transmission technology for the taking of testimony from a witness or expert in a proceeding for which mutual assistance is available. How many cases would the Department envisage over a 12-month period in future? Have there been any cases in the past couple of years, before this article is implemented?
I thank Deputy McGrath for his sentiments.
The nature of the guarantee strengthens the existing bilateral treaty between Ireland and the US. As I mentioned to Deputy Rabbitte, that would be a question of refusal or otherwise of a particular request for extradition. As I understand it, Deputy McGrath's question relates to when a person is extradited for an offence which carries a capital punishment, for example, where somebody is charged with murder which in that particular US state carries a mandatory death penalty. That would be a matter of grave concern to European countries. If I am not mistaken, practically all European countries, led by Ireland, have outlawed the death penalty. The issue is that this is an international agreement binding both countries and international agreements are effectively policed on the basis of good faith. One accepts the assurances and guarantees of another sovereign country. That issue probably has resonance in other matters, but the basis upon which it is policed is that one accepts the guarantee of another country.
Would the Minister of State be satisfied that the United States would accept that guarantee, and go with it?
As I understand it, Deputy McGrath's question was whether we are prepared to accept that. I would answer "Yes", as one sovereign nation to another.
That was my question.
The entire basis of international law is that one accepts the guarantees or assurances of a fellow sovereign state. I would say that would particularly apply to a state with the sort of relationship the United States has had with us over the years, but it should, in terms of international law, apply to every state.
Deputy McGrath also asked about the number of cases.
Under Article 16.
It is difficult to predict the number of cases in any given year, but I understand that there have been five either way since 1983.
I just wanted a general idea. I thank the Minister of State.
I endorse the welcome to the Minister of State, Deputy Power, on his return to this committee and wish him every success in office. He has done a good job thus far and we wish him well for the future.
I agree with Deputy Rabbitte in that we, as members of committees, have a serious problem with bilocation where meetings clash. Perhaps the Chairman might take this up at the Chairmen's meeting. If there was a half hour between meetings, there is at least a chance we could get to those meetings and have access to the information and documentation that is critical to ensure we are well informed and able to make contributions to the conclusions, which is vital both from a national and international point of view.
As I said to Deputy Rabbitte earlier, I accept that point and we will convey a strongly worded letter to the Department about it.
I am referring to our meetings. We should be able to arrange our meetings in a way that would provide for a time lag so the times of meetings would not clash. There could be a half hour break, for example, one meeting could start at 2 p.m., the next at 2.30 p.m., the next at 3 p.m. and so forth. That would give members a chance to attend committee meetings.
Are you talking about other committees?
Yes, other committee chairmen could examine the timetable.
I can raise that at the next meeting of the committee chairmen.
Thank you, Chairman. I attended the meeting last week and the Minister of State, Deputy Peter Power, has brought a great deal of clarity and reassurance to that debate. I am happy that there is greater clarity today pertaining to the human rights aspect, which I raised last week with the Minister, Deputy Dermot Ahern. I am particularly pleased that the death penalty can be negated with regard to our citizens who are extradited.
I have a question about something that could happen. Let us assume there is a non-Irish citizen for whom a warrant has been issued or with regard to whom documents have been deposited in another jurisdiction for his transfer to the United States. If that person enters the European Union territorial area and is, for example, on an airplane that is bound for Shannon Airport, could the Irish authorities receive an urgent request to detain that person and ultimately extradite him or her to the US under this agreement?
No. There are arrangements in the treaty regarding the transit of people through Irish territory. If there is transit which does not touch down, one is not required to get the permission of the State. If there is an unscheduled landing, which is what the Deputy appears to mean——
I am referring to a scheduled landing, where a person gets onto an airplane in Switzerland or elsewhere and the airplane is scheduled to land at Shannon Airport. If the intelligence services convey to the US authorities, who convey it to the Irish authorities, that the person is travelling into Ireland, can the person be arrested on arrival in Shannon Airport and extradited to the United States thereafter?
If there is somebody in our territory who is the subject of an extant warrant that is in the possession of the Irish authorities, the answer is "Yes".
This warrant would not be in the possession of the Irish authorities but in the possession of another authority. However, the person has travelled into the Irish State.
I understand it would be possible to arrest the person pending the receipt of a warrant.
Thank you. Deputy Ó Snodaigh had indicated that he wished to ask a question.
He had to leave but he was hoping to get back to the meeting.
Unfortunately, he has not returned and we must move on. I thank the Minister and his officials for attending. We have completed our consideration of the motion.