Extradition (Amendment) Bill, 1994: Committee Stage.

The business before the Select Committee today is the Committee Stage of the Extradition (Amendment) Bill, 1994, which was referred by the Dáil to this committee yesterday afternoon.

We are obliged by order of the Dáil to conclude our consideration of this Bill today. I hope that, with everyone's cooperation, it will be possible to conclude our deliberations at a reasonable hour. I suggest that we should aim to conclude Committee Stage by 5 p.m. at the latest with, perhaps, a short break at 1 p.m. for lunch. Is that agreed? Agreed.

The purpose of the Extradition (Amendment) Bill, 1994, is to amend the Extradition (European Convention on the Suppression of Terrorism) Act, 1987 and the Extradition Act, 1965. The Bill will clarify and extend the range of offences not to be regarded as political offences, fully implementing the Convention on the Suppression of Terrorism and giving effect to requirements relating to extradition in the UN Convention Against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances; centralise proceedings relating to extradition in the Dublin Metropolitan District Court; reserve decisions on the granting of bail in extradition cases to the High Court and make certain other changes.

Section 2 takes serious offences out of the category of offences that could be regarded as political offences in certain circumstances. The effect of this change is that such offences may not be regarded by the courts in future as political offences for the purposes of avoiding extradition, irrespective of any of the circumstances surrounding the committing of the offences. Section 2 also provides for a Schedule to the Bill which lists all the offences under Irish law which may be deemed to be political offences by the courts for the purposes of extradition.

Section 3 changes the definition of "political offences" and "revenue offences" as contained in the Extradition Act, 1965. The result of this change will be that offences which come within the scope of Article 3 of the United Nations Convention Against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances may no longer be regarded as political offences or revenue offences for the purposes of extradition.

Section 4 provides that proceedings in extradition cases will be centralised in the Dublin Metropolitan District Court and that such cases will be heard by judges of the District Court specifically nominated to hear them. Section 5 provides that bail in extradition cases may be granted only by the High Court.

Section 6 provides that a garda may arrest a person for extradition even though a garda does not have possession of the warrant at the moment of arrest. The garda must produce the warrant within 24 hours, show it to the arrested person and give him or her a copy of it.

A number of changes are provided for in other sections. The Commissioner of the Garda Síochána may endorse a warrant in respect of a person where it appears to him or her that a person is coming to the State. The position at present is that the warrant may be endorsed by the Commissioner only when the person sought is in the State. The courts will no longer specify the location at which a person being extradited to the United Kingdom is to be handed over. There will be an increase in the period of remand from three to seven days in the case of a person arrested on a provisional warrant in respect of extradition to the United Kingdom.

Section 1 agreed to.
NEW SECTION.

Amendments Nos. 1 and 4 are related and may be discussed together. Is that agreed? Agreed.

My colleague Deputy Gilmore is engaged on other business in the Dáil Chamber for the next few minutes so I will move the amendment on his behalf. I move amendment No. 1:

In page 2, before section 2, to insert the following new section:

"2.—Where a request is received for the extradition of a person from the State, the requesting state shall be required to provide, before the District Court, evidence in written form as to the commission by the person claimed of the offence of offences for which extradition is sought, and extradition shall not be granted unless such evidence produced establishes aprima facie case of involvement in the offence or offences alleged.”.

As the amendments are being discussed together I would be willing to speak to my amendment first and we can wait for Deputy Gilmore thereby relieving Deputy Rabbitte.

If the procedure is in order that is acceptable to me.

Amendment No. 4 is similar, except for a few changes in relation to the District Court, to an amendment which the Progressive Democrats submitted during the debate on the 1987 Act. We propose to seek evidence showing a probable cause which falls short of showing aprima facie case in relation to extradition proceedings.

The notion of an affidavit of probable cause in the High Court is to replace the rather secretive procedure which exists whereby the Attorney General has a role in vetoing and vetting all extradition warrants. There should be a proper judicially based extradition system. The source of the idea is the Irish-American extradition agreement where the US insists on that level of probable cause whereas we do not insist on anything. In that sense it is a lopsided arrangement. The US approach is a reasonable one relating to the extradition of one's own nationals given the demands of natural justice and the protection of the constitutional rights of the person sought for extradition. As between Australia and Ireland a warrant without any evidence is sufficient for extradition.

The Departments of Justice and Foreign Affairs have always favoured the procedure involving the Attorney General and the lack of an adequacy test via a court procedure is a fatal flaw in our general extradition procedures. The Department of Justice has consistently persisted in the notion that it prefers a non-court supervised system, the system involving the Attorney General. The problem with that system is that it is not sufficiently transparent and the decisions which the Attorney General might take are not debated, are not open to investigation and the Attorney General is not accountable to the House.

We need a workable extradition procedure which does not require aprima facie standard of proof, such as, for example, that which would be required for the return for trial of somebody on an ordinary indictable offence. We should demand some adequacy test which would at least show that the person has a cause to answer. The United States, which has a written constitution, would not agree to a process such as ours and insists on a probable cause procedure, as we should.

This relates to the issue of extradition and the importance of civil liberties. It is not a simple process by any means and it should not be regarded as being divorced from civil liberties. Since the Progressive Democrats first spoke about extradition we have always been concerned about the introduction of fair and effective safeguards against arbitrary or oppressive demands for extradition. As Deputy O'Malley said in 1987, extradition should never be reduced to a slot machine of justice or an automatic process which ignores civil liberties.

Extradition involves the surrender of an Irish national into custody pending trial, and in that respect it differs from the constitutional right to bail. It also involves compulsory expatriation or repatriation in the case of fugitive aliens, and can involve a lengthy period of pre-trial detention, frequently for more than one year. It puts the person extradited beyond the protection of our courts, our laws and our Constitution. In the case of civil law countries it involves the obligatory participation of the person extradited in the investigative as well as the adjudicative process.

For all of these reasons we have had to be careful. While it was desirable to have a workable extradition system in line with our international commitments it remains essential that fair procedures are kept in place and there should be no slippage in procedural justice in extradition cases.

The Minister said last night she will not change her mind on this matter. However, on previous occasions in the Dáil we have said the advice given to successive Governments on this issue has been defective in that it failed to distinguish between Irish citizens for whom we can insist on evidence and others for whom we cannot insist on evidence without renouncing the 1957 convention.

During the period of the Fianna Fáil minority Government the Taoiseach informed the Dáil, as reported in the Official Report, Volume 375, No. 10, columns 2125 to 2126 of November 1987, that insistence on aprima facie case would put Ireland in a position which would require denunciation of the 1957 convention. It fell to the Progressive Democrats to point out that the advice given to the Taoiseach on this issue was wrong and misleading because it did not acknowledge our right under the convention to insist on evidence in cases where extradition of Irish nationals was involved.

The Progressive Democrats accept that a fullprima facie case as promoted by Deputy Gilmore should not be required against Irish citizens. Such a procedure would be slow, complicated and ineffective. However, in respect of Irish citizens there is nothing in the 1957 convention to prevent insistence on a requirement of reasonable outline of evidence to demonstrate bona fides. There is a precedent for this in the Irish-American extradition treaty, which requires such a procedure for the extradition from America to Ireland of wanted persons. It was announced on the news this morning that there was a warrant for the extradition of a person found yesterday to Northern Ireland. In America where such procedures are in place probable cause must be shown.

For that reason we put forward this amendment. We believe there is a need to establish a judicial process which requires the State seeking extradition to show probable cause. That would not unduly delay the process and would stitch into our extradition process a transparency and some measure of protection to the person whose extradition is sought. The thrust of this legislation is to take the gun out of Irish politics and to affirm the criminalisation of terrorist violence. If we were to introduce such a safeguard the Executive would be removed from the process and we would depoliticise extradition, in so far as it is possible to do so.

Yesterday in the Dáil we heard some ambivalence towards terrorist violence. I congratulate the Minister on reaffirming that the Government is committed to reaffirming the criminalisation of such violence and, in line with the Downing Street Declaration, to finally take the gun out of Irish politics. This is part of the process. One cannot completely remove politics from extradition but the points made in 1987 are as valid now as then although they may have been put better at that stage. One should not cede grounds in the desire for fair procedure and procedural justice in extradition.

There is some difference of emphasis between Deputy O'Donnell's amendment and Deputy Gilmore's. The Deputy's amendment does not have theprima facie requirement which appears in our party’s amendment. Nonetheless she says an adequacy test for extradition is essential in these circumstances.

The main question is whether it is appropriate that the Attorney General be the person required to validate a person for extradition. Undeniably the Attorney General is the law officer to the Government but it is also a political appointment. Having regard to the recriminations and fallout from some extradition applications it is desirable that it be removed from the remit of the Office of the Attorney General although no fault can be attached to the Irish Government of the day in those cases. Deputy O'Donnell referred to the practice in the United States. As I understand it a person can be extradited from this country to the United States on the basis of a valid warrant, but this jurisdiction cannot obtain the extradition of someone from the United States unless aprima facie case is made in court. I acknowledge the argument about taking another step towards removing the gun from Irish politics by not treating these as political offences. However, because of the seriousness of these offences it is only reasonable to require that a prima faciebe made out in the District Court. I do not think that is as cumbersome or slow as has been suggested. I was not involved in the debate on Second Stage but I was struck by the sea change that has taken place in Irish politics. Much has been written about consensus in the political arena and amongst political parties. Whether one thinks that is right depends on one’s point of view but it is certainly true in the extradition issue. I do not deny what Deputy O’Donnell said about some remaining ambivalence in the debate so far. Notwithstanding that the speeches are almost unrecognisable when compared to those made in 1987 and any Irish citizen committed to the democratic system must welcome that.

However, the position of the Government parties is unclear. As I recall both advocated aprima facie requirement in previous debates on this matter. My colleague, the former Deputy McCartan tabled an amendment to this effect in 1987 and it had the enthusiastic support of the Labour party and of the Minister, Deputy Taylor. That amendment also had the support of Fianna Fáil once they were weaned off a more extreme position. It is not clear why that should not continue to be the case.

Aithníonn ciaróg ciaróg eile.

That may be true. In all the circumstances and having regard to the difficulties which have bedevilled Anglo-Irish relations in this respect, it is not unreasonable to require that aprima facie case be made, as envisaged in the amendment. A wider discussion on extradition may be necessary at a future date and this Bill is rather specific. Nonetheless this is a core point and I urge the Committee to accept the amendment.

I regret I cannot support the view of either my colleagues in Opposition on these amendments. If I were to support either, theprima facieproposal is much clearer and better known in law than the probable cause proposal. If we are to go down this road, we should take the prima facie route. Deputies O’Donnel and McDowell’s amendment is almost an exact replica of an amendment the Progressive Democrats proposed to the 1987 Act. I have difficulties with it for a number of reasons. It would take from the Attorney General the right to decide whether there was probable cause or a prima facie case and give it to the court. I accept that the Attorney General is not accountable and that is a weakness in our constitutional arrangements. I have argued this point before. If the Attorney General, for example, had right of audience before this committee, he could be examined occasionally on the role of his office. This is something we must consider because the various jobs which are being thrust on the Attorney General are bringing him increasingly into the public realm. A fundamental difference between the constitutional position here and that in Britain, although we have otherwise followed that system, is that the Attorney General is not accountable. I accept that that is a reasonable and fair point and I would like it corrected. I would like the Attorney General to be accountable to Parliament in some way, whether it is audience in the Seanad or before this committee. That position must change and we cannot expect him to continue to have the powers he has without accountability. However, I am not in favour of this matter being referred to the courts because there would be a trial within a trial.

Prima facie.

If the Deputy does not mind, I will make my case. There would be a trial within a trial. Furthermore, we will extradite an Irish citizen who is not an innocent person until proven guilty but a person who has been partially found guilty already or we would not have extradited him or her in the first place. That person would be presented for trial in a foreign jurisdiction if we introduce a trial within a trial procedure and that is dangerous.

I expressed concern on Second Stage that there are already many dangers. The British Lord Chancellor, Home Secretary and Attorney General should consult and try to take out the prejudicial press coverage which often occurs at the trials of people accused of terrorist offences in Britain. It would not be allowed in this jurisdiction and it can prejudice somebody's trial. I do not care what somebody is charged with, they should have a fair trial. I said this on Second Stage.

The constitutional officers in Britain should consult because the publicity and page three type treatment by thepaparazziof these trials is giving a weapon of public relations to terrorists to use in their cause. The sniffer dog type sensationalism that goes with a trial would not be allowed here. If someone has already had a probable cause or a prima facie case proven against them here, they are guilty before they go on trial. That is the effect and it does not help ensure that only innocent people are put on trial. It sends people there with a sword already hanging over their heads because the Irish courts have as much as said “you did it and we are sending you over there to be sentenced”. That is how it will be interpreted and we should make that clear. It will not help innocent people in any way.

People are extradited daily for shoplifting, drug related offences, common law and many other offences. Should we pamper people who are accused of planting bombs in places where children can be blown apart and give them special treatment? Should we give them some outlet so that they can endlessly challenge the extradition in cases appealed from the District Court up to the Supreme Court to establish whether there is aprima facie case or probable cause? This is not a banana republic. This country has a role to play in and is a respected member of the civilised world. This legislation came about as a result of a convention between civilised states and to meet their requirements. Why should people accused of planting a bomb in a high street which kills two children be given a different trial procedure from people who are accused of drug pushing offences, bank robbery or shoplifting and who are extradited daily?

It shows a certain double standard, although I am not aiming this at Democratic Left. Deputy O'Malley pushed this case when the original Bill was being debated and I think it is at his behest that it is being raised again. That shows a certain double standard. They are saying that they are not going withprima facie,rather probable cause. Let us be honest, it would be better to go with the prima facie case if we are to go down that road. Why are we seeking to pamper people who are accused of these outrageous offences and to treat them differently? I do not understand. If the argument is to be taken at face value, and it is being put sincerely, then we should look at its effect which is to send people away with a guilty verdict already hanging over their heads. While I feel strongly about terrorists and that they should be put on trial, everybody should be given a fair trial. It would not be a fair trial in a foreign jurisdiction if somebody goes away with a probable cause verdict, which is how it would be interpreted, hanging over their heads.

There is a special arrangement where people who are extradited can only be charged with the offence that the warrant specifies. Somebody has to vet that and ensure that it is correct. The Attorney General is the person to do so. A fundamental weakness in all of this is that the Attorney General is not accountable. In some shape or form the Dáil or this committee must address that question.

It is incredulous that Opposition speaker after Opposition speaker appears to talk about an ambivalence towards violence in yesterday's debate. I do not understand where that interpretation of the debate came from. It is a red herring. The motive behind it is something I cannot determine.

On the amendment, it appears to facilitate an easier system of extradition with less safeguards. In my view, it appears to be fundamentally against the terms of natural justice. This amendment would allow for some person to be specified to make a statutory declaration, setting forth reasonable grounds for believing that the offence to which the request or warrant for extradition, as the case may be, relates has been committed and that the person before the court committed it. A person who would make that declaration would not be subject to cross-examination under the terms of subsection (6) of the amendment. Accordingly, the amendment is fundamentally flawed.

No citizen of this country of reasonable mind objects to a person against whom there is aprima facie case answering the charges. However, there would be a fundamental objection amongst all reasonable citizens in this State to the transfer out of this jurisdiction of citizens on the basis of a declaration by some unknown person or persons not subject to cross-examination.

As I remarked yesterday, it would be wise to remember that a sovereign Government has a sovereign duty to its people and in that respect is charged with a great onus. It is the duty of the Government to ensure that its citizens answer serious charges made against them if there is a case to answer. However, it is equally the duty of the Government not to transfer its citizens into what may, at times, be a hostile jurisdiction on the basis of hearsay, rumour, innuendo or of a declaration made by some person or persons which might or might not be true. Extradition is a serious issue. It deals with the right to liberty, which is one of the most fundamental human rights. While the right to liberty must always be tempered by the reality that an individual must answer any transgressions of the bounds of normal human behaviour, it must also be recognised that the bitter experience of history has been that people transferred from this jurisdiction, and indeed Irish people residing in other jurisdictions, have been found guilty of offences of which they were innocent on the basis of the most flimsy and derisory evidence. That truth has been the bitter experience, and because of this one must be all the more careful regarding an issue as serious as this.

I wish to remind the committee in the context of this amendment which seeks to ease the extradition process, that many European countries will not extradite their citizens for any reason. Deputy O'Donnell referred to the American experience. This experience, in a recent famous case, meant that it took 12 to 14 years to extradite an individual out of the jurisdiction, and I am not aware if the case has concluded.

It is ridiculous, therefore, to put before the committee an amendment which would effectively mean that we would transport out of our jurisdiction citizens on the basis of little or no evidence. No civilised Government does that and no civilised Governemnt has any right to do so. The amendment is so ridiculous that is should be withdrawn. In this respect, I wish to ask the parents of sons and daughters of this country if they would, in the circumstances presently prevailing, like it if their sovereign Government would transport their child into another jurisdiction if there was no evidence against that child, on foot perhaps, of a hearsay statement, or of somebody who decided that he had some grudge against the child making a declaration before a court without even being cross-examined?

There is no ambivalence towards violence and, equally important, there must be no ambivalence by this Government, or any Member of this House regarding the rights of Irish people. This amendment seeks to introduce that kind of ambivalence. It is an ambivalence which I could not support and I do not believe any reasonable Irish person would support it either.

The amendment should be withdrawn. It is against the principles of natural justice and it does not stand on any reasonable basis. Furthermore, it would lead to one of the most dangerous situations that ever existed not only in Irish extradition law, but in extradition law in any part of the world. There are safeguards in Irish extradition law regarding the power of the Attorney General to ensure that there is not only an intention to prosecute, but that there is sufficient evidence to lead to there being a case to answer. That quasi judicial function is exercised by the Attorney General and it has been exercised with the greatest integrity and sensitivity.

The amendment would result in an open border and alaissez faire attitude to extradition. This could only mean that the Government would be in dereliction of its duties to its citizens, which would be a disgrace.

I cannot accept any amendment which proposes to introduce aprima facierequirement, no matter in what guise. It would run counter to our obligations under international treaties and to all of the developments taking place in Europe at present. In addition, it would complicate and delay the extradition process.

Theprima facie requirement cannot apply to all extradition requests. By its nature, it can only apply to extradition requests where the person sought has not already been convicted and is wanted for the purpose of a prosecution. It cannot, for example, apply to a person who escapes from custody after conviction. It is not the general practice in western Europe to impose such an obligation in extradition cases. The UK was the notable exception to this practice. While the UK never applied such a rule to requests for extradition from the UK to Ireland, it was applied in respect of requests for extradition from other European countries.

The clasicalprima facie case requirement gives rise to considerable difficulties in practice. The UK has now dropped theprima facie requirement with regard to all countries which are party to the European Convention on extradition.

Our extradition arrangements with other European coutries are governed by the 1957 Europen Convention on extradition which was given effect here by Part II of the Extradition Act, 1965. That convention does not allow us to impose aprima facie requirement in respect of requests for extradition from convention countries. We are all familiar with the argument that was the convention does not require us to extradite our nationals, we would impose a prima facie requirement solely in respect of the extradition of Irish citizens. Any discussion as to whether such a proposal would be either desirable or feasible is academic. The fact is that the vast majority of countries which are party to the convention will not extradite their nationals to us and we do not extradite our nationals to them.

Section 14 of the Extradition Act, 1965 provides that "Extradition shall not be granted where a person claimed as a citizen of Ireland, unless the relevant extradition provisions otherwise provide". There is no convention to extradite our citizens and the issue has never arisen in practice.

That leaves only two countries, the USA and Australia. Our extradition arrangements with these two countries are on the basis of bilateral treaties. We cannot impose aprima facie requirement in respect of those states without renegotiating the treaties in question. I do not consider that such a course of action is justified at this stage.

The proposals by the Progressive Democrats for an affidavit showing probable cause was debated, as Deputy O'Donnell rightly pointed out, at great length in 1987 and was rejected at that time. The system with the Attorney General works well and I do not propose to change it.

I regret that I missed the earlier part of the debate and I thank Deputy Rabbitte for moving the amendment in my absence. I joined the debate while Deputy Mitchell was in full flight and I found some of his remarks astonishing. The Deputy referred to the pampering of people who have been accused of committing serious terrorist offences. My amendment does not contain any intention to pamper anybody. My party has supported the principle of extradition for a long time even when many others were nervous about the idea. If somebody commits a serious offence, regardless of the purpose or motivation behind that offence, it is perfectly in order to extradite them to the jurisdiction in which they committed it to stand trial. In that context it is worth reminding ourselves that the Bill is primarily intended to close the absurd loophole in our extradition laws whereby possession of an automatic weapon can be claimed to be a political offence and, consequently, the person involved can avoid extradition.

The principle I am trying to establish in this amendment has been debated in the House on virtually every occasion extradition was addressed and that is the basis and the Labour Party were in Opposition, they argued strongly that aprima facie case should be made at the start of the extradition process. My amendment seeks the same procedure which is that aprima facie case would have to be made and stated to a court.

There is no ambivalence about violence or the manner in which violence should be dealt with but there is an ambivalence as to whether extradition is a political or a judicial issue. There is an ambivalent arrangement in our own laws in that we have not quite taken the judicial route. We have not accepted that these applications are made where people are accused of having committed crimes and that the appropriate mechanism, for dealing with them is through the courts.

There is an arrangement whereby the Attorney General, who is half judicial and half political, assesses the application. If a politically sensitive application for extradition was made at some stage, there was always the possibility it could be refused on political grounds, which is not an acceptable way of dealing with it. Where people are accused of having committed offences, the application should be made through the courts. As Deputy Mitchell said, this is done in civilised societies where the courts determine questions relating to offences and culpability. A prima facie case should be made in court.

To some extent the Minister is hiding behind the cloak of the convention when she states it cannot be done. It can be done if we decide to do it and I do not understand how that argument holds up. Deputy O'Donoghue made a passionate speech about the rights of a sovereign government in respect of its own people. It is a matter for this Government to decide what procedures are to be put in place in this State to deal with an extradition application. This amendment seeks the primary safeguard in the area of extradition which was sought by Fianna Fáil and the Labour Party in Opposition and has been argued for repeatedly in the House. It should exist as the primary safeguard when dealing with extradition cases.

As Deputy Gilmore pointed out, there is confusion as previous speakers, particularly Deputy O'Donoghue, seem to feel that we are trying to diminish the safeguards. We are trying to make the safeguards just and workable. The present safeguard invovles the Attorney General but the chief defect of the Attorney General vetting system is that it is conducted in secret. No hearing on the relevant issues is afforded to the person affected and, as acknowledged, there is no accountability to the House or to the courts. There is a perception that, notwithstanding its quasi judicial nature, the process is still in the political sphere.

I reiterate what Deputy Gilmore said. The Executive is holding on to extradition. It should be a clear judicial system. All these cases are appealed to the High Court and ultimately to the Supreme Court. The best way of introducing and solidifying procedural safeguards for the person whose extradition is sought is to have an open court process where all the issues would be debated. The individual would not be proven guilty but at least it would be determined he has a case to answer.

We are not proposing a lessening of security as alleged, we are advocating that protection for the person whose extradition is sought should be strengthened. As I said, by holding on to this, the Executive is continuing the politicisation of terrorist activities. This legisaltion already provided that a whole schedule of offences can no longer be claimed to be political and thereby used to make an exception and avoid extradition. That is the best way of doing it as there is then no uncertainty or vagueness about what constitutes a political offence.

At present, there is an insistence by the Executive and the Attorney General to maintain the existing decision process. I refute the allegation that what we are proposing lessens protection. We are seeking that just cause be shown for the extradition and Deputy Gilmore's proposal is stronger in a that he asks that aprima facie case be made. Either proposal would protect the person from all the dangers outlined in the past.

I accept that we must be careful before we extradite somebody. Issues of sovereignty, constitutional and human rights are involved. The Progressive Democrats have always urged a just extradition procedure in terms of the result and the country seeking the extradition to ensure justice in the wake of atrocities but we have also argued for a just procedure. Deputy O'Donoghue said that we were hoping to whittle away a safeguard. The procedure we propose would be more transparent and afford more protection to the person whose extradition is sought.

We have strong reservations about the Attorney General adjudicating on these issues in private, without consultation, which does not afford the accused an opportunity to see the evidence presented against him. There is no opportunity for a discussion of all the issues in open court. I stand firm over my amendment and I agree with the points Deputy Gilmore made.

It has emerged from the debate so far that we are addressing the question of safeguards. I do not think anybody would deny that there is a need for extradition. However, everybody agrees that if one expresses some concerns about extradition in the present climate one could be misunderstood. That should be cleared up as there is no question of any body hiding behind safeguards to protect criminals from the due process of law.

Safeguards are needed to ensure that people who are extradited will have the same benefits as those which we aspire to have in this jurisdiction. Extraditing a person means that they automatically encounter a type of prejudice when they are dealt with in another jurisdiction. We safeguard each other's rights in society by being together as a nation. Once one moves out of that area, one is automatically treated as a foreigner. There is a danger that a natural prejudice existing between nations could apply in cases of extradition.

There is also the question of whether the same type of charge or procedures would be followed in the other country. If evidence is produced in aprima faciecase that there is a case to be answered, there is a strong argument that there should be a trial here rather than in the other jurisdiction. It seems that extradition is mainly to satisfy demands from another source to deal with a case which could be dealt with here.

There is also the question of the treatment people receive in a foreign country and the climate to which they are being extradited. We have no control over what is said and done prior to that trial. Most of the cases we deal with are between the United Kingdom and Ireland and mainly centre around activity which where it is political is associated with a difficulty which arises between these two countries.

It is a question of whether it is better to deal with it by bringing aprima faciecase, whether the Attorney General could do the same job or whether the safeguards we are looking for can be provided in any area. If it cannot be agreed in a prima facie case, we should be assured that the Attorney General can have the same number of safeguards applied. I have no difficulty provided that those safeguards are clear and obvious to everybody.

Other speakers referred to an ambivalence towards extradition. I held very strong views throughout the 1980s in relation to extradition which I would not regard as representing ambivalence. Where there is a need for extradition and where we have entered into conventions, arrangements or treaties with other countries, I would strongly and unequivocally support those. However, that does not deny me the right to insist on proper safeguards in the operation of the process. The term "safeguards" is the kernel of the debate on these amendments. There is confusion in a minority of quarters about what is meant by safeguards and what the proper safeguards are. I am not a lawyer or an expert on court procedures but in examining legislation we can all determine what is fair or just. The rule of thumb must be that we should demand for those of our citizens who are being sought in another jurisdiction what we would expect for ourselves in terms of a system of justice here.

What is proposed here strikes me as nothing short of willy-nilly extradition. What Deputy O'Donnell is proposing — despite her assertions to the contrary on a number of occasions — is to ask the Government to bring in legislation to have a statutory declaration by a law officer in another country submitted to the courts here, without the due court procedures being put into operation. That is, if the judge is satisfied that there are reasonable grounds then that person can be extradited. She has asserted that is not the case but I have not heard her say anything to the contrary.

I endorse wholeheartedly the sentiments Deputy Mitchell expressed. It would be outrageous for us to submit one of our citizens, on foot of a statutory declaration from another country, to the courts without the due processes which would be available to them here and send them abroad tagged as guilty. If we submit one of our citizens before our courts and they are deemed on reasonable grounds to have a case to answer in another jurisdiction, they are perceived by the British judiciary, the public and the media — Deputy Mitchell referred to many elements which are very prejudiced against us — to be guilty. The letter ‘G' is stamped on their back. I do not accept that and it would be irresponsible of our Government to accept it.

The fact that the Attorney General is still being retained as the law officer to adjudicate on the merits or otherwise of a statutory declaration is still perceived in some way as a reluctance on the part of the Government to take this out of the political arena. The argument being put forward here to substantiate that does not stand up. There is no logical clearly argued case to support the view that by retaining the Attorney General one is retaining an element of political ambivalence towards extradition. What is clearly emerging here today is that our over-riding concern as parliamentarians is to ensure that the existing safeguards are adequate and give fair and just treatment to all accused persons whose extradition is being sought to another jurisdiction.

When it comes to Britain I make no apologies for my view that the system which has been in operation there over the years has proven to be flawed in many instances. I make no apologies for that which I do not consider to be synonymous with being ambivalent towards extradition. It is simply facing up to the facts which are there for many fair-minded level-headed legislator who is prepared to face them. The flaws in that system have sadly exposed and have wrecked the lives of many Irish citizens, perhaps far more than we are aware.

As Deputy Mitchell said, it is about time the British judicial system and the senior law officers here got their act together in relation to this matter. The manner in which they have proceeded to issue extradition warrants and have then been unable to prove the case is damnable and needs to be addressed. While that situation obtains and there is even the slightest lack of confidence on our part in relation to theirmodus operandi,we need to give a clear and strong signal from this Parliament on our views and concerns.

Before I call the next speaker I would like to remind Members that we agreed to adjourn at 1 p.m. and to complete the business by 5 p.m. We have been discussing amendment No. 1 for almost an hour.

I apologise for being late. I wish to deal with a point which I understand the Minister made in my absence, that Deputy O'Donnell's proposal would in some way infringe our obligations under the European convention on extradiction.

I did not say that.

This is restricted to citizens of Ireland in respect of whom we are entitled under international law to make any arrangement we wish. If that has not been said, I will not push the argument any further. The third line of Deputy O'Donnell's amendment specifically confines it to citizens of Ireland, so we are entitled at any time to alter our legislation to provide evidential safeguards for our citizens as a matter of international law and under the Conventions.

Deputy Fitzgerald referred to sending people out of the country and argued that it is a major matter to send somebody for trial in Britain without safeguards being in place. I query why Irish citizens under present law can be extradited to America and Australia, which must be a huge imposition on them, on the basis of a warrant alone. Judging by Deputy Fitzgerlad's contribution, this issue is not being confronted. A warrant, if duly issued by an Australian court, does not have the benefit of the Attorney General's protection, which exists in Part III extraditions under the 1965 Act. If a warrant is issued for Deputy Fitzgerald or anybody else by an Australian court there is nothing he, as an Irish citizen, can do to resist it. The same applies to an American warrant.

It amazes me that somebody can be sent halfway across the world in custody and that there is not a scintilla of legal protection for him in this country. There is no measure whereby he can argue that the court is seeking the wrong person or that he was in Ireland at the time the crime was committed in Australia. The same policy from the Departments of Justice and Foreign Affairs was applied on our treaty with America. We said that America could have our citizens on foot of a warrant. America, as the Minister has conceded, will not allow that to apply to its citizens. Why not? They regard the civil liberties of their citizens as worthy of protection. A US citizen cannot be sent in custody to an Irish court merely because an Irish district judge on an afternoon in the Bridewell issues a warrant summoning the citizen to an Irish court. That is the fundamental difference. With respect, Deputy Fitzgerald is having his cake and eating it. He seeks protections in relation to the United Kingdom, yet he acquiesces in the lack of protections for an Irish citizen in relation to America or Australia.

We need a uniform law which protects everybody. The first thing we need is a uniform law to protect the civil liberties of ordinary people. It is a matter of civil liberty if for example, an Irish citizen is accused of rape while on holiday in Florida, or of a theft in a store in Sydney while on tour there. It is a matter of fundamental civil liberty that the person should, before he is sent to Australia or America, have evidence produced somewhere in Ireland to show that, at the least, there is a case to be met. That is uncontradictable.

The Irish Government, however, has consistently followed a policy whereby a person in such circumstances may not go to an Irish court to say that there is no evidence against him. He could go to the Minister, tell her he is the wrong person and ask her to check that the Australian police are sure of their facts. The Minister might say that before she exercises her power under the Extradition Act, 1965, she will ring Sydney to reassure herself that the right person is being sought. However, as a matter of law, that person is not entitled to know if the Minister rang. He is not entitled to any reassurance about the quality of the evidence against him.

If Deputy Fitzgerald sincerely believes that there must be protections in relation to some countries, the protections must exist in relation to all countries. If Irish citizens have rights which must be protected in relation to Britain, I cannot see why the District Court in some Godforesaken corner of America is entitled to insist on the production of an Irish citizen in custody to face trial in circumstances where an English court is not permitted to do so. We must have a uniform law. It is about time that Parts II and III jurisdictions under the 1965 Act were brought together and put on a uniform basis. There should be a proper treaty of extradition between Ireland and Britain which puts Britain in the same position as any other country seeking the extradition of Irish citizens.

It has been suggested that what we are proposing is less of a safeguard than the Attorney General procedure. Let us get the Attorney General procedure straight. It has been carefully crafted — the lawyers present know this — so that the Attorney General's failure to stop an extradition is as unreviewable as possible by the courts. Hence, an Irish citizen who is being extradited to Britain is dealing with the assumption that the Attorney General looked at the papers in private and failed to intervene to stop the extradition. It is thought — wrongly, I believe — that the assumption cannot be reviewed in the courts. I believe that a positive decision one way is just as reviewable as a negative decision another way. Some day somebody will insist that the Attorney General bring his material before the courts. All the presumptions contained in this statute will not protect the Attorney General from that. If he makes a decision about reducing somebody to custody, whether it is expressed in the positive or the negative, it is equally reviewable.

What is not reviewable under the present arrangement is whether his decision was correct. Nobody knows what his decision was because nobody ever sees the material before him. We hope that he gets it right. We do not know if he has got it right. I am not trying to be pernickety, but there is no guarantee or presumption of infallibility on the part of the Attorney General, as recent events have obviously underlined. A person does not have a genuine transparent safeguard. It is quite the reverse. In relation to the United Kingdom we have a secret process which presumes that the Attorney General has done his job. That process is not available to people being extradited to Australia or America.

The question ofprima facie evidence or affidavits showing probable cause was debated in the House in 1987. A fullprima facie case involves bringing evidence on paper to a District Court in the form of a book of evidence of the case against the accused. A full prima faciecase in those circumstances involves much work. We thought that the Minister, under subsection (3), was in a position to specify the means of knowledge that a deponent would be obliged to have of the material and the kind of material which would have to be there. The Minister, in making regulations under the proposed provision, would effectively decide the detailed nature or otherwise of the evidence to be produced before an Irish court before a person would be extradited.

A reasonably fair arrangement would be that in most cases where, for example, a chief constable was making the statutory declaration, he would exhibit the statements of matters which were not within his knowledge, such as eyewitness accounts, fingerprint experts and so forth. Thus it could be seen that there was a sufficient case to put the person on trial and, if this was put before an Irish court, the Irish people would know that before somebody was put in handcuffs and sent to Britain, there was a case for the person to answer. It is very wrong that, as happened in the Fr. Patrick Ryan case, a decision was made about potential bias due to remarks in Parliament and media treatment of his case in England, although nobody in Ireland knew what the evidence was against him. It was never put before an Irish court that there was or was not any evidence in his case. It is a wrong not only to Fr. Ryan but to the community that his extradition was handled in such a manner that nobody in Ireland knew whether there was a case for him to meet or if the Attorney General's intervention had or had not got him off a hook.

In our law as it is currently practised there is no transparent means for the public to judge whether extradition is fairly operated. It is for the public to decide whether extradition is right or wrong in any individual case. How can the public decide that an extradition is fair or that it is fair to reduce an Irish person to custody and send him to Australia, America or Britain if the only safeguard in respect of Britain and Northern Ireland exists inside a sealed file cover on the Attorney General's desk?

We should have a system of justice which is clear, open and accountable. If somebody decides that certain material is insufficient for the extradition of an Irish citizen to Northern Ireland, the Irish people are entitled to know on what basis that decision was made. Somebody in Northern Ireland or Great Britain is entitled to know whether the Irish State refused to extradite on good or bad grounds.

It is an offence to a democracy and to the name of a republic that this decision is made by a secret process in which everybody is kept in the dark as to the merits or demerits or the right or wrong of the decision. In those circumstances, the duty of the Oireachtas is to provide an alternative system whereby the courts in a simple procedure could evaluate whether there is a case to meet. It does not have to be a 15 year or a long drawn out procedure. However, it does have to be transparent and subject to review and public scrutiny. That is all the courts are there to do.

Is the reduction of somebody into captivity for the purpose of extradition of a question of the administration of justice? If it is the question of the administration of justice, where is the justice element in producing an apparently valid warrant from an English court in an Irish court and saying, "Hand over this man on foot of that warrant and the Attorney General will see to all the safeguards. The fact that we are here in court with the warrant already shows that the Attorney General has reviewed this and he is privately satisfied on grounds that nobody knows. This is all fine". It is not a safeguard and it is anti-republican. It is star chamber justice and should not be part of our law.

We made that point in 1987 when this came in and we do not believe it is necessary to put in a fullprima facie case. We have never believed that or that it is necessary to deal with every Irish person’s extradition as if he was being returned for trial by an Irish jury by putting together a huge book of evidence with depositions on which people were cross-examined, or such matters. We have never argued for that but Irish citizens are entitled to the protection of their civil liberties. They should not be reduced to captivity by what is in effect a veneer of justice by the Irish courts backing an English warrant in circumstances where the real substantive decision is made in secret by somebody who claims to be acting quasi judicially and in circumstances where the absence of correctness of that decision is not open to public scrutiny. If an American or Australian court is entitled to the production of an Irish citizen in captivity to either of those jurisdictions without the Attorney General’s intervention, I cannot see how it is any type of safeguard or reasonable application of the law to say that is similar circumstances a British court should not be allowed it. It would appall me if British courts were entitled, in view of recent events, to simply produce a warrant, as was the old law, and have an Irish person sent to them. It is equally appalling and wrong that an Irish person can be sent to Australia or America in similar circumstances. The right way to tackle this is, first, to put the British-Irish extradition proceedings on a proper international basis, where Irish citizens’ rights are protected, and, second, that as long as we have some requirement for special protections in relation to UK extradition, that the right way for the merits and demerits of those applications to be decided is subject to public scrutiny in the courts and not in a secret file on the Attorney General’s desk.

Before I call the next speaker, I remind Members that this is Committee Stage and not Second Stage. It is not fair to the committee for some people to speak for ten to 15 minutes when the Members have already agreed to a restricted debate.

With respect, Chairman, that reduces this committee to a farce.

I say that to all Members of the committee, Deputy.

I know he will not take this personally as it is a debating point but I am sorry Deputy McDowell did not attend the Second Stage debate yesterday and was not here this morning to hear the arguments Members made in relation to this amendment. He would have saved himself much trouble with his points. I agree with much of what he said but I depart from him when he concludes that we need a probable cause amendment. We need an Attorney General who is accountable, as such officers are in any other system throughout the world. We need an Attorney General who can be called in and asked on what basis he did not do something.

I would agree with that.

This is where the Deputy and I depart. We need an Attorney General who will tell us why Fr. Patrick Ryan's warrant was not endorsed, why he was not extradited and the reasons why various decisions are made. This is my one concern, and I have repeatedly called for greater accountability for the Attorney General. It is the only departure from the British parliamentary system, which we supposedly took lock, stock and barrell, but it was not incorporated in the 1937 Constitution. I accept what Deputy Gilmore said. I know exactly where the Democratic Left stand on extradition and I did not in any way cast a reflection on that.

A probable cause procedure would be a trial within a trial. This would happen endlessly when people go to the courts. Furthermore, if someone was extradited, they would not be sent away as an innocent person facing charges but as a person with a guilty tag attached. This is the fundamental flaw of this approach. People are extradited every day of the week and there is no fuss made about it. We are making a fuss about people who are accused of offences such as the murder of the two boys in Warrington.

I am sorry Deputy McDowell was not here for my Second Stage contribution, although I reiterated some of my points this morning, because I am concerned. I will not go as far as Deputy Fitzgerald said I went or as far as he went, but I am concerned. The Lord Chancellor, the Attorney General and the Home Secretary should get together in order to ensure that the type of pre-trial publicity which is allowed does not go on to prejudice trials in Britain and is not used as part of the armoury of terrorists in their defence. This must be examined.

I agree with Deputy McDowell in relation to the possible extension of the Part III requirement of the 1965 Act. There is no reason why the Attorney General should not look at all warrants, whether they are from Australia, America or wherever. I have no difficulty with that and it would be a proper civil liberties step for us to recommend to the Government. However, as the late John Kelly called them, there are no sneaking regarders in Fine Gael. We have been consistent. If people need to be extradited to face charges they should be extradited with no half measures and without apologies or sympathy. We must be clear and unambiguous. If one looks back to the 1987 debate, one will find that some of the votes were carried on the casting vote of the Ceann Comhairle. Some of those now arguing for these measures are the same people who caused the necessity for those votes to be carried by the casting vote of the Ceann Comhairle. A little consistency in this area of extradition would be welcome.

If the people who planted bombs in Dublin in 1972 or in Dublin and Monaghan in 1974, can ever be brought before an Irish court in the Republic, it should be done. They should be pursued to the ends of the earth, if necessary. Any suggestion that they would find succour anywhere is reprehensible. That same principle must apply across the board for anybody who plants bombs in any place where there are innocent people. We should not in any way even attempt to show any sympathy or support for people who do that. Looking around the table, perhaps the Democratic Left are the only people, with Fine Gael, who have been consistent in their views on this matter. I will not support these amendments.

Deputy M. McDowell spoke about the difference between extradition to the US or Australia and the UK. The reason for that difference is that relations with Australia and America have been good, but there have been problems with Britain due to age-old suspicions, which are justified when one looks at what happened so many Irish citizens, including the Guildford Four, the Birmingham Six and Mr. Patrick Murphy — a case I referred to on Second Stage. I did not mention the Matthews case relating to a young man from County Derry. Although charges against this man were dropped, the British Establishment decided he was still guilty — if this happened in Ireland he would be presumed innocent — and excluded him from Great Britain. That is why the people insist on proper safeguards for those extradited to the UK. I have always been consistent in regard to extradition with the UK in that there must be safeguards. I spoke in that vein in 1987; I was consistent then and I am consistent now.

Although I am on the Government side, I agree with many of the points made by Deputy M. McDowell and Deputy G. Mitchell. I am in favour of uniformity in regard to extradition treaties with different countries. Apart from the examples given by Deputy M. McDowell of Australia, Canada is watching this debate to see if it could reach a similar agreement with this country so those who flee that country to Ireland could be brought to justice.

As I said on Second Stage, each month people are extradited from Ireland to Britain to face trial and nothing is said. For many years I asked successive Ministers for Justice for a figure detailing the number of prisoners extradited from Ireland to Britain to face trial. That figure is substantial and is increasing. Nobody has complained about these cases or whether these people got rough justice or summary justice in Britain. Those concerned about paramilitaries or terrorists and those charged with such activities are not interested in common criminals. People are people regardless of what they are tried for. They are concerned that those charged with terrorist or paramilitary offence get justice, but they are not concerned about ordinary people tried for petty crimes such as theft. That is hypocritical and inconsistent. I would like to see uniformity in regard to extradition with all countries and I agree with Deputy M. McDowell in that regard.

Like Deputy G. Mitchell, I regret Deputy M. McDowell was not present this morning or on Second Stage. I will not repeat the arguments I put forward against his party's and Deputy Gilmore's amendment. Deputy M. McDowell accuses others of being inconsistent, but he too is inconsistent. He accused me of saying something which I did not say in relation to his party's amendment. The Deputy also spent some time berating Deputy Fitzgerald in relation to the situation in the United States; yet this amendment tabled by Deputy M. McDowell and Deputy O'Donnell refers specifically to Part 3 of the Principal Act which only involves extradition to the UK. That is another inconsistency.

I know Deputy M. McDowell has difficulty with the Attorney General's role and somebody said if the Pope did it he might be happy. I believe that unless God did it Deputy McDowell would not be happy. The Deputy will acknowledge that there have been no difficulties with extradition since the safeguarding role was given to the Attorney General. Difficulties have arisen on the British side and this point was made by Deputy G. Mitchell and Deputy Gilmore in the Dáil last night. In addition to the history lesson we got last night from Deputy Dukes, we also got one from Deputy Gilmore and Deputy Rabbitte this morning. Deputy J. O'Keeffe had the best response to that last night when he said it is water under the bridge. Anyone who stands still does not change their views should not be involved in politics.

As regards European countries, EU Ministers are examining the area of extradition at present. They are looking at how procedures may be modified, changed or improved. I do not believe we should do anything on a unilateral basis prior to a decision by EU members.

Changes with the US and Australia are based on bilateral treaties and any changes would have to be done by way or renegotiation of those treaties. The safeguards contained in the 1987 Act are important and substantial and must be retained. By doing what the Progressive Democrats or what Deputy Gilmore propose, extradition proceedings would be delayed. I do not believe that is what we want and, therefore, I oppose both amendments.

Amendment put.
The Select Committee divided: Tá, 1; Níl, 23.

Gilmore, Eamon.

Níl

Bradford, Paul.

Browne, John (Carlow-Kilkenny).

Callely, Ivor.

Carey, Donal.

Costello, Joe.

Finucane, Michael.

Fitzgerald, Liam.

Foley, Denis.

Geoghegan-Quinn, Máire.

Harte, Paddy.

Hogan, Phil.

Kemmy,Jim.

McDowell, Derek.

Mitchell, Gay.

Moffat, Tom.

Mulvihill, John.

O'Donoghue, John.

O'Keeffe, Ned.

Power, Seán.

Ryan, Eoin.

Timmins, Godfrey.

Wallace, Dan.

Walsh, Eamon.

Amendment declared lost.
Sitting suspended at 1 p.m. and resumed at 2.15 p.m.
NEW SECTION

Amendment Nos. 2 and 22 are related and may be discussed together.

I move amendment No. 2:

In page 2, before section 2, to insert the following new section:

"2.—Part III of the Principal Act, as inserted by section 2 of the Extradition (Amendment) Act, 1987, is hereby amended by the deletion of sections 44A and 44B and the substitution of the following new section:

‘44A.—(1) A warrant for the arrest of a person accused of an offence under the law of a place in relation to which this Part applies shall only be endorsed for execution under this Part if a Judge of the High Court certifies that he is of the opinion that—

(a) there is a clear intention to prosecute or, as the case may be, to continue the prosecution of, the person named or described in the warrant concerned for the offences specified therein in a place in relation to which this Part applies, and

(b) such intention is founded on the existence of sufficient evidence.

(2) A Judge of the High Court shall only certify a warrant under this section when a request for extradition is accompanied by a statement of fact, by way of affadivit or statutory declaration, which satisfies the Judge that there are reasonable grounds for believing that an offence has been committed and that the person sought committed it.'.".

It has suddenly become very lonely here. I was also lonely the last time when I found myself alone in a vote. Deputy O'Donnell is not here to speak on amendment No. 22 but I can deal only with amendment No. 2.

This amendment relates to whether or not the Attorney General should be the officer endorsing the warrants. The amendment proposes that warrants should be endorsed by a judge of the High Court. This would take extradition out of the Office of the Attorney General, which is a quasi political and quasi judicial one, and locate it in the judicial domain. When it was decided that the Attorney General would do this work it was as much a political compromise as anything else, because in the mid-1980s extradition was much more sensitive than it is now. It was probably felt by the Government at that time that political restraint was needed in granting extradition warrants. Controversy about extradition has concentrated virtually entirely on extradition for terrorist offences.

During the debate on the previous amendment, speakers said that we do not hear the same concerns when extradition warrants are sought for persons accused of committing normal crimes. The "stop extradition" slogans painted on walls at crossroads around the country applied only to terrorist related offences. The requirement that those warrants have to be presented to the Attorney General was a device used to pacify political concern and unrest in relation to such offences and the controversies which surrounded them. One could certainly envisage a situation where in a politically sensitive case an Attorney General, as much for political expediency as for any other reason, might decide on a particular course. It is necessary to put all of this into the judicial domain. This amendment proposes that this function should be carried out by a judge of the High Court and accordingly I propose this amendment.

I will reply when Deputy McDowell has spoken about his amendment.

I will be withdrawing amendment No. 22.

The safeguards introduced by the Extradition (Amendment) Act, 1987 and operated by the Attorney General have worked well in practice. I am not aware of any instance where there was a suggestion that the rights of the person sought were infringed or indeed where there was any suggestion that the Attorney General blocked proceedings which should have gone ahead. The office of the Attorney General is a constitutional office and not, as some people might suggest, a political office and a mere servant of the Government. I refute most strongly any suggestion that the Attorney General does not carry out his role under the 1987 Act in anything other than a scrupulously fair, impartial and independent manner.

The Attorney General's role under the Act is not a judicial one. This was confirmed by the court in Wheelerv. Culligan, 1989 Irish Reports. It is a procedural matter and it would not be appropriate to involve a judge of the High Court in the process. The role of the Attorney General under the Extradition (Amendment) Act, 1987 acts as a safeguard for the person sought. Nothing that the Attorney General does can adversely affect the rights of the person sought. If the Attorney General decides that there is sufficient evidence to prosecute, the matter still has to go through the full extradition process in our courts. The existing procedure is working well. I cannot agree with any suggestion that the Attorney General should be replaced by a judge nor, indeed, could I agree to any proposal to delete the safeguards which are provided in the 1987 Act.

I want to add a general point with which Deputy McDowell may not agree. If the Attorney General makes a mess of it, he can be fired. If a judge makes a mess of it, he remains in place.

Amendment No. 22 will be withdrawn. We are discussing amendment No. 2.

We blindly accept that judges always do things better. It is fair to say that the Judiciary are seen as being, by and large, removed from any form of corruption or partiality. Deputy Deasy did not share that view in the Dáil yesterday with regard to one or two members of the Judiciary. Just because it is not the Legislature or the Executive but the courts who are being entrusted with something does not automatically mean that it is better. I want to put that word of caution on the record. We must be a little more exploratory in our disquisition when we examining points of this kind.

Is the amendment being pressed?

It is. In response to Deputy Mitchell, I certainly do not subscribe to the view that judges must chair every public body, committee of inquiry or departmental investigation. However, in matters of criminal justice, which is what we are addressing here, it is clearly the function of the Judiciary to determine matters. If somebody is accused of a crime and wanted in another country, the case against them should be presented in court and the Judiciary should decide whether they should be extradited.

I would probably share Deputy Mitchell's criticism of the judiciary in the manner they carry out their functions, but that is a separate matter. This matter should be dealt with by the Judiciary and not reserved for the Attorney General. The Attorney General's role in this area emerged as some kind of a political compromise in the 1980s.

I will be withdrawing amendment No. 22. I would not be on the scorched earth persuasion where because I cannot have exactly what I want, there should be nothing. That would not be a logical position. The amendment should be withdrawn if the law is not going to be amended to provide a proper safeguard. I empathise with much of what Deputy Gilmore has said but I do not agree with his amendment because it does not seem to envisage a hearing. It merely requires a High Court judge to carry out the same secret process an Attorney General does at the moment.

Justice should be administered in public in courts. I share Deputy Mitchell's view that the Judiciary are far from prefect and are often imperfect. I also share his view that there are many things that should be done by the Executive which should not be done by the Judiciary. I subscribe to the simple, straightforward old fashioned view that reducing somebody to captivity and sending them somewhere else is an administration of justice and should not be a matter for the Executive.

Sending somebody out of our jurisdiction for trial is a matter which goes to the heart of their rights as a citizen. When people are to be sent forward for trial on indictable offences in this country it is necessary to conduct a preliminary examination not merely by the prosecution but also by a district judge. In this context, the least that somebody being sent to England to be tried for an indictable offence should be entitled to in Ireland, before he or she is reduced to captivity and sent abroad, is a hearing to determine whether there is sufficient material available to justify the extradition. That may be an old fashioned view but I believe it is the correct view. I believe that in the fullness of time, my view will prevail despite the decision in Wheelerv. Culligan. I am not enamoured of the judgment in that case but since it was made by a judge, I have to accept it.

The process of putting somebody into captivity, sending them abroad and depriving them of their rights under the Constitution to access to the Irish courts, frequently in cases where there is the prospect of extraterritorial jurisdiction, is by definition an administration of justice. While accepting Deputy Mitchell's point that not everything falls within the judicial domain, this process should fall within the judicial domain. Nobody should be handcuffed and bundled on to an aeroplane until it has been established in Ireland that there is good reason for it regardless of whether they are going to Australia, America or Britain.

I do not think there is anything odd or quirky about that opinion. Most people, if they thought about it, would think it strange that there is not an opportunity to challenge that fact, that one is being taken out of the jurisdiction. It was mentioned earlier than the majority of extradition cases do not concern suspected terrorists. The majority of extraditions deal with other issues such as people being sent abroad to face child abuse charges, shoplifting and theft charges or ordinary decent murder as somebody once called it. Those are the real things with which we have to deal in those circumstances. A person cannot be put on trial for murder in this country without a district judge going through the papers and deciding there is a case to be answered. I cannot see why a person should be taken from Ireland and sent to England without anybody in this country deciding if there is a case to answer. I fail to understand why a person should be taken from Ireland and sent to the UK without anybody in this country vetting to ascertain if there is anything for the person to answer.

Deputy Gilmore's amendment suffers from the defect that it is substituting a different person to carry out the same process. Nevertheless, it would be a secret process and the Judiciary should not be involved in secret processes as their main function is to administer justice in public. If it had to be implemented it would be for the Attorney General to do so, because at least then it would be admitted not to be part of the administration of justice.

In response to Deputy M. McDowell's remarks, there appears to be a sequence of approaches to dealing with the same problem. What we wish to put in place are safeguards whereby when a request for extradition is made we do not end up with a situation where, as Deputy M. McDowell remarked, somebody is bundled into an aeroplane and sent away without some kind of case being established to justify that course of action in the first place.

There was a long debate this morning about attempts to establish aprima faciecase and to have that dealt with in open court. Deputy M. McDowell contributed eloquently to that debate but then abstained on the formula I proposed to deal with the issue. That being defeated, we are left with a situation where the decision is made by the Attorney General.

I accept Deputy M. McDowell's view that it would be preferable to have this dealt with in open court without any element of secrecy involved, but there is a distinction between the decision being made by the Attorney General and being made by a judge. Applications for extradition are applications which relate to the offence that the person to be extradited in accused of. They should not be based on some other political considerations. Considering the state of Anglo-Irish relations which might arise at any given time, this may be a factor in determining whether or not an extradition warrant is pursued.

If the entire issue is dealt with by the Judiciary then this political dimension is removed. This amendment seeks to take the political dimension out of extradition, albeit in a more restrictive form than I would have wished and in a more restrictive way than proposed by the earlier amendment. If somebody is accused of committing a crime and there are good grounds to justify the extradition of that person, irrespective of the nature of the crime, there is no difficulty. However, the extradition should relate to the crime and should be addressed by those who normally deal with criminal matters. The function of the Attorney General is different. He is primarily the legal adviser to the Government. It is not the case, and never was the case until the introduction of this legislation, that matters of this kind were determined by Attorneys General.

We continually sell ourselves short as politicians. Under the Constitution there is a separation of powers between the President, the Oireachtas, the Government and the Judiciary. We have underplayed our role as legislators and as people to whom the Government must account. To some extent the role of the Government itself constantly delegates these matters to the courts. Internationally, there is no contact between courts—contact takes place between Governments, which is the correct way to engage in international relations.

When an extradition request is received the Government has a role in handling that request. The law officer of the Government is the Attorney General. I happen to think he is the right person to have this function, in so far as anybody should have it. However, in regard to the duties interpreted by the courts as being assigned to the Attorney General, the system has fallen down in recent years because the Attorney General, unlike his British counterpart, does not have to be a Member of the Oireachtas. He acts as adviser to the Government rather than to the Oireachtas and therefore does not have to answer to the Oireachtas.

This issue must be addressed. If matters are delegated further to the courts there is always the possibility that judges will be appointed with strong so-called republican views, given the numbers appointed to the Judiciary. Such judges would be reluctant to sign a warrant or whatever after an atrocity. They are no more or no less human than the rest of us and they are not accountable to anybody. An Attorney General, who is fully accountable, as judges are not, to the Oireachtas, to the elected representatives of the people, should undertake this work. The absence of this accountability is the essential weakness in the process. Justice must be done and must be seen to be done and, in view of this, pressure must be exerted to have the role of the Attorney General modernised.

Legislation is due before the House regarding the compellability of witnesses. It would be a healthy development if the Attorney General was compelled to attend before this committee three or four times a year to give an overview of the office and how it is exercised. The days are gone when the Attorney General could remain anonymous. The office is now cast in a different light; it is not simply the equivalent at national level to the law agent of Dublin Corporation. The office now undertakes a different role, which should be accountable. If there was such accountability, the weakness to which Deputy Gilmore and Deputy M. McDowell referred would be greatly reduced.

Earlier the Minister gave a spirited defence of the Attorney General against an attack which did not occur on this occasion. Deputy Mitchell is correct. It is desirable that somebody carrying out certain functions which carry individual responsibilities should be answerable. In this context it is blithely asserted that the Attorney General is a constitutional officer. Under the Constitution the Attorney General is an officer in so far as he is legal adviser to the Government. The Constitution does not prescribe other functions for the Attorney General and it is an emerging situation——

May I ask Deputy M. McDowell, for the purpose of this debate, if it is true that in some of the recent constitutional cases the Supreme Court have thrust on the office of the Attorney General the role of guardian of the Constitution?

That is correct. The Attorney General has, as a matter of Irish law, been given this successor role to the British notion of the Attorney General, who, on behalf of the Crown in the UK, was involved in the role of guardian of the common good. In Ireland the Attorney General has the function, as a matter of law, to intervene, for example, in matters such as the X case, whether he is right or wrong. However, I will not pursue that issue at present. This role is undertaken not as legal adviser to the Government, but as a separate role as guardian of the constitutional rights of citizens.

The problem is that the Constitution does not set out his role as guardian of the constitutional rights of citizens in the same way as it sets out his role as legal adviser to the Government. It is possible, for example, that a public defender's office could be established in the same manner as the office of the DPP, in which the guardianship of people's individual rights would be carried out by somebody else. If the legal adviser to the Government is to be learned in the law, presumably a barrister, solicitor, a professor of law from a university or whatever would have to carry out the function. The legal adviser to the Government cannot be unqualified, either nominally or in experience. If, therefore, the Attorney General was to be a Member of Dáil Éirteann, which would be most desirable, there would have to be a Dáil of sufficient size to ensure that either there would always be a reasonably well qualified Attorney General likely to emerge from a general election, or there could be a convention to nominate the Attorney General to the Seanad and give him a right of audience under the Standing Orders of Dáil Éireann to be responsible. That does not happen at the moment, unfortunately.

Another alternative arises from what Deputy Mitchell said. A Dáil committee could be set up with a connection to the Attorney General, which could ask him to explain his role as a defender of the rights of the public. As the Deputy said, the Attorney General's role requires considerable scrutiny by the Oireachtas because he may purport to act as defender of the individual's constitutional rights in circumstances where he is not accountable to anyone and the Constitution does not explicity give him that function.

To protect the Judiciary I am loath to ask them to do something which does not fall within their bailiwick. They have a difficult time doing their job well and they should not be involved in secret processes. In the past, judges have been asked to chair various commissions which were inappropriate for them to chair. I oppose Deputy Gilmore although I am in sympathy with what he says about the Bill.

I am not in favour of this being done in secret, which I made clear earlier. If the amendment I have tabled can be improved to ensure this exercise is carried out in public I would be satisfied.

A number of issues have arisen in this discussion. The role of the Attorney General and the degree to which he should be accountable to the Oireachtas is an issue which should be debated and I agree with the views stated by Deputy Mitchell and Deputy M. McDowell.

The issue in this amendment is whether the Attorney General's office is the appropriate one to which these applications should be addressed. There was widespread opposition to that in 1987 when this provision was put in the legislation. I was not a Member of the House at the time but Fine Gael and the Progressive Democrats expressed considerable reservations about this function being given to the Attorney General. The main concern relates to the ambiguity mentioned earlier. We have to decide whether extradition is a political or a judicial issue; whether applications for extradition will be decided on the basis of the evidence and the warrant in the case, or whether other political considerations will be involved. If the office of the Attorney General is involved that will, by definition, give it a political dimension because the Attorney General is a political appointee. Members of the Judiciary are often political and their appointment may be political; that issue also must be addressed.

One Attorney General could take a view based on the political composition of the Government when he held that position and his successor may take a decision reflecting the political composition of a new Government. As has been said, an application for extradition causes no great excitement when it involves an unknown person wanted for an offence who has no political connections or access to the campaigning teams available in the more celebrated extradition cases. Alternatively, a case may become celebrated at a politically sensitive time for a Government. One wonders whether the decision made then would be the politically expedient decision or one based on the case. The matter needs to be removed from the effect of political expediency and political change. My argument is not new, it is essentially the case made in 1987 when this was debated.

This is an interesting point. If the Government of the day were to intervene in a manner purely for their own political advantage, for instance in a general election, that would be a terrible abuse. However there could be a set of circumstances where the national interest did not require that something should happen. In those circumstances the Government should not be an innocent bystander. Equally, it should not tell another Government that the Irish Government cannot do anything because only the courts can deal with this matter. The courts have an important role but so does the Government, which is accountable to the Dáil. In international relations, even in extradition, the Government cannot be innocent and uninvolved. That is not realistic.

By saying that Deputy Mitchell is saying a different set of rules apply in extradition applications where the national interest might be involved, which in other words, is a political extradition. One cannot see the national interest being at stake if someone is wanted for theft or murder in the normal way.

I must intervene here because I do not want a philosophical debate on the issue. We have had considerable discussion on the matter and I will shortly put the amendment.

I was interested to hear Deputy Gilmore on that point. However, the question is not political or judicial, it is governmental. The Executive is part of the Government, just as the courts are. The question is, which wing of Government is responsible for conducting international relations? One cannot put this in the hands of the courts and say the Government has neither interest, access nor accountability to Parliament in the matter. Deputy Gilmore and I could put a question to the Minister and be told it is entirely a matter for the courts although it may affect international relations and the Constitution says which wing of Government is responsible for that.

I was chairman of the Committee of Public Accounts for a number of years. We caused a review of the Office of the Comptroller and Auditor General to be undertaken. Thankfully, we received great co-operation from the Department of Finance and the Comptroller. A number of independent people from the public and private sectors were brought together in a committee which I chaired. The Comptroller is also an officer of the Constitution, although he is responsible to Parliament, not the Executive, and the legislation governing his office dates back to 1866. As a result of that committee's work a new Act, the Comptroller and Auditor General Act, 1993, was introduced to update his powers.

I am not solely concerned about the role of the Attorney General and his lack of accountability in this area. Recently we heard of the advice on the power of the President and his advice is quoted more frequently. More importantly, the DPP has a huge amount of power hived off on him, as does the DPP in Britain. The difference is that in Britain the Attorney General must attend in Parliament and answer for the DPP. One example is a case, that was recently struck out, concerning the larceny of £1 million worth of cigarettes. It is difficult to get the facts of the matter but it appears the case fell because the book of evidence was not prepared on time. The judge got fed up waiting for it and struck out the case. The DPP is not accountable for that to the Attorney General or to anyone else.

The essential point is that the DPP and the Attorney General are not accountable. Nobody who is so independent as not to be accountable should have power, with judges being the exception, but that is the non-executive element of Government. That needs to be addressed. As the Committee of Public Accounts caused a review of the Office of the Comptroller and Auditor General to be carried out, this committee should cause a review of the Office of the Attorney General to be carried out.

I am glad Deputy Gilmore recognised that it is not only the Attorney General's post which is a political appointment but that the judges to whom he would entrust a lot of the powers that the Attorney General and others might have are also political appointees. I must correct Deputy Michael McDowell for the second time today as he stated clearly that the Attorney General's only role under the Constitution is as legal adviser to the Government. There is a specific role given to the Attorney General as prosecutor, which I will read into the record lest there be any doubt about it.

On a point of order, Chairman, I never said anything of the sort. I know the Constitution well and I know exactly the provision the Minister is taking about. It provides that indictable cases can be prosecuted by suit of the Attorney General or such other person nominated by law.

He has a role as prosecutor.

This is not a prosecution role.

What is it if not a prosecution role?

It has nothing to do with prosecution. With respect, the Minister should not try to score points off me on that matter.

If we look at the Extradition (Amendment) Act, 1987, which is in question here, it clearly states in section 2 that the Attorney General has to examine and consider the information to show and to prove that there is a clear intention to prosecute.

By the British.

That has nothing to do with prosecution in Ireland.

He has a specific role to ascertain, in so far as the information he gets is concerned, that there is a clear intention by whoever it is——

I know what the role of the Attorney General is under the Constitution. The point I made was that, as Deputy Gay Mitchell said, he has other functions as guardian of the common good and they are not explicitly provided for in the Constitution.

Amendment put and declared lost.
NEW SECTION

I move amendment No. 3:

In page 2, before section 2, to insert the following new section:

"2.—The Extradition (Amendment) Act, 1987, is hereby amended by the deletion of section 6 and the substitution of the following new section:

‘6.—The Government shall, as soon as may be after the 1st day of January in each year, and not later than the 1st day of April, beginning with the year 1989, make a report to each House of the Oireachtas on the operation in the preceding year of Part III of the Principal Act.'.".

I hope I have better luck with this amendment than I had with the previous two. We have had a lot of discussion——

The Deputy might want to buy a lottery ticket.

I did, but I have not had much luck there either. It is not my week. There has been a great deal of discussion about accountability and one of the provisions made to provide for some degree of accountability with regard to the Extradition Act was made in section 6 of the 1987 Act which required the Government to make a report to the Houses of the Oireachtas on the operation of extradition to Great Britain and Northern Ireland as soon as may be after 1 January each year. The last report published was for 1991 and that was laid before the Oireachtas only in January 1993. No reports have yet been published for 1992 or 1993, which is extraordinary given the sensitivity of the issue and the amount of talk there has been about accountability.

The Minister stated that she had now received the report for 1992 and is about to present it, or has presented it to the Government and that it would be published in due course. We are running behind considerably in the preparation of these reports. I cannot understand why it is taking so long to prepare them because the amount of information in them is not considerable. The 1991 report showed that there had been one application made for extradition to Britain and one application made for extradition to Northern Ireland. It is not as if these are voluminous reports showing huge numbers of extradition applications and it is remiss that they have not been published.

My amendment proposes that there should be a requirement that the reports would be published within a period of three months, in other words, not later than 1 April, to lend a degree of accountability to this matter. We now have a procedure whereby the applications are made to the Attorney General and are decided in private and this is the only public report of any kind that is made. It was a minimal provision made in the 1987 Act and it is not being complied with in the spirit intended. It is not unreasonable that those reports would be published within three months after the end of the year. Only a small amount of information is contained in them and the resources available to the Attorney General and the Minister should ensure that a report on what is a straightforward matter is published in three months.

I compliment Deputy Gilmore for tabling this amendment. I raised this matter on Second Stage. It is a straightforward requirement under the original Act but the Act needs to be tightened up because its requirements have not been met. It is not satisfactory to give these details in arrears. As Deputy Gilmore said, the compilation of these details is not an onerous task, rather is relatively simple and straightforward and the Oireachtas should be provided with the information as the law states. Deputy Gilmore is trying to tighten up on the requirements so that the report would be brought in before 1 April of each year.

This should be extended beyond Part III of the 1965 Act so that there would be a report on all extraditions and so that there would be some information in the Oireachtas Library to which we can refer from time to time. People are extradited regularly without any publicity and it would be useful to have facts and figures not just in relation to Part III of the 1965 Act but in relation to extradition generally. I hope the Minister accepts this worthy amendment. Members of the Oireachtas should get this information on a regular basis.

I support the two previous speakers. One of the conditions on which this power was given to the Attorney General was an implied promise by Government that they would report to the Oireachtas on the exercise of their powers under Part III of the 1965 Act. A statutory duty was imposed on the Government as a condition of giving them these extra powers in 1987. It seems remarkable that the statutory duty can just be ignored. If in the UK a Minister did not report to Westminster as required by statute it would be considered contempt of parliament. When the Houses of the Oireachtas give a power on condition that a report is made every year as soon as may be, it is contemptuous to find that two years later the Government has not bothered to report on how the powers have been exercised. It is not acceptable that the Executive should ignore the Legislature when the Legislature has made this part of the law. The law applies to Government which has a clear statutory duty and has not been complying with it.

It is certainly not Deputy Gilmore's lucky week. I should explain in the first instance that it is the Attorney General's Office which prepares the annual report and submits it to my Department. I then bring the report before Government for approval before presentation to both Houses of the Oireachtas. Deputy Gilmore is correct that I did state last night that the 1992 report has just recently come to my Department and that I was in the process of preparing it for submission to Government.

The preparation of these reports involves close examination of Garda and court records and papers in my Department and the Attorney General's Office. However, an important feature of these reports is the outcome of the court proceedings following extradition. In this regard it is necessary for inquiries to be made to the relevant British authorities as to the result of the particular cases. These court proceedings, particularly those before the Crown courts, can naturally take many months to complete. Accordingly, it would be inappropriate and impractical to impose the sort of deadline being suggested by Deputy Gilmore.

I accept the general thrust of his argument that there should not be an undue delay in the submission of the annual reports to both Houses. If there was a way of getting over the type of delay which exists now I would be prepared to have a look at that. Obviously, I have not had an opportunity to talk to the Attorney General about this, but perhaps the solution would be for the report to carry only basic information on the cases and not to wait to get the information as regards the outcome of each case. However, the reports would then be very weak. People would want to know not just who was extradited and when and how many but also what happened after the extradition and the courts had dealt with the cases. That is where the difficulty arises.

I can appreciate the basis for Deputy Gilmore's argument and the support he is receiving from Deputies McDowell and Mitchell. As I said, I am offering a compromise and could look at this between now and Report Stage but I am not sure if that would satisfy people. Members of the Oireachtas might prefer to see not just who was extradited and how many but also the result of the court proceedings following extradition. That is where the delay is now occurring in that it takes many months, particularly in cases before the Crown Courts, before a final decision is made.

I think the Minister's reasons for not accepting the amendment are pretty thin. First, there is the argument that many court records and so on have to be checked. However, we are dealing with a small number of cases and I expect that the Office of the Attorney General and the Minister would have the resources to carry out the basic research which is required to produce the report in the first place. I do not accept that as a reason for the reports not being produced.

The second reason is, if I understand the Minister correctly, that there seems to be a wish to track each case to its conclusion. I do not think that is what was intended by the provision in the 1987 Act. What was intended primarily in that provision was to make the information publicly known as to who and how many were extradited and the basis on which such decisions were made. I agree with the Minister that it is of interest to the public and Members of the House to know what happened to the people who were extradited, whether the case stood up and so on. However, in cases which have not been brought to conclusion it must be possible to include in the report some note as to what stage that case is at and for somebody who is researching it to be able to follow cases from one report to the next. It is not a complicated matter. We are used to receiving voluminous reports from various Government Departments and agencies. This is not a complicated area and there is a small number of cases involved.

Due to the failure to produce the reports within a reasonable period of time, it is now necessary for the Oireachtas to set a deadline by which they must be presented. The 1987 legislation has been in place for over six years. It was to provide for this system of reporting, which has not happened. The Oireachtas is now entitled to say that they have had their chance to produce the report, given the open-ended nature of section 6 of the 1987 legislation. However, they have not been produced on time so the Oireachtas now wants to set down time limits within which they must be produced.

To return to what I said earlier, if the Deputies feel that it is sufficient for a report to contain only the basic information — for example, in the 1990 report there were seven cases, cases A to G: one went to Scotland, one to Wales and the rest to England — that is, the information which is within our control here, rather than wait to get information in relation to the outcome from the UK, I will undertake to talk to the Attorney General between now and Report Stage about whether it is possible to do that. The only case I was making was that people might feel that in addition to the information about who was extradited, when and so on, the same report should also have information on the final outcome of each case.

Is it not possible to produce a report which would give the basic information, as the Minister has stated, on who was extradited, numbers and so and then in a second part to pick up cases from previous reports and state what happened to them after extradition? If somebody wanted to follow a particular case or compare them, they could trace back over the reports and do it in that way. Production of the report should not be delayed until each case in that year is completed. I do not want to do a trade off here of less information for a quick report, which seems to be the deal which the Minister is offering.

I am only trying to be helpful, as Deputy Gilmore knows. I can talk to the Attorney General between now and Report Stage about providing the kind of report which Deputy Gilmore is talking about. The legal obligation is for the 1992 report to cover what happened in 1991 but this would mean that it would also include cases which started in 1990 and did not finish until the end of 1991, if I understand the Deputy correctly. I will talk to the Attorney General between now and Report Stage to see if that is possible.

On that basis, I withdraw the amendment.

Amendment, by leave, withdrawn.
NEW SECTION.

I move amendment No. 4:

In page 2, before section 2, to insert the following new section:

2.—(1) In any proceeding under Part III of the Principal Act in respect of any warrant for the arrest of a person who is for the time being a citizen of Ireland and is accused of an offence, a final order shall not be made under section 47 of that Act unless documentary evidence within the meaning of this section shall have been produced to the Court.

(2) In this section, ‘documentary evidence' means an affidavit or statutory declaration setting forth reasonable grounds for believing that the offence to which the request for extradition or warrant, as the case may be, relates has been committed and that the person before the Court committed it.

(3) The Minister may by regulation made under this Act in relation to ‘documentary evidence' provide for any or all of the following matters:

(a) the persons or classes of persons who may swear an affidavit or make a statutory declaration.

(b) the persons before whom an affidavit may be sworn or a statutory declaration made,

(c) the form of an affidavit or statutory declaration and the manner and place in which it is to be sworn or made,

(d) the means of knowledge required of a deponent,

(e) the documents, if any, that shall be exhibited in an affidavit or statutory declaration,

(f) such other matters as appear to be necessary or expedient for the proper working of this section,

(g) the revocation or amendment of any order made under this section.

(4) A document purporting to be an affidavit or statutory declaration for the purposes of this section shall be received in evidence by the Court when tendered without further proof and it shall be presumed until the contrary is shown that the document was made for the purposes of this section and in accordance with the provisions of any order for the time being in force under subsection (3) of this section.

(5) In considering whether or not an affidavit or statutory declaration sets forth reasonable grounds for believing that the offence, to which the request for extradition or warrant relates (as the case may be), has been committed and that the person before the Court has committed it, the Court shall have regard only to the matters set out in the affidavit or statutory declaration and any matters duly exhibited therein.

(6) Notwithstanding any rule of law or practice to the contrary a person who swears an affidavit or makes a statutory declaration for the purpose of this section shall not be liable to be summoned before the court or cross-examined thereon in the course of any proceedings under Part III of the Principal Act.

(7) Every regulation made by the Minister under this Act shall be laid before Dáil Éireann as soon as may be after it is made and shall not have effect unless a resolution approving the said regulation is passed by Dáil Éireann.".

Amendment put and declared lost.

I move amendment No. 5:

In page 2, before section 2, to insert the following new section:

"2.—In section 50 of the Principle Act the words ‘or the Minister' in subsection (1) and subsection (4) are hereby repealed.".

This is a proposed amendment to the Extradition Act, 1965, and may relate to the point which Deputy Mitchell raised early. Section 50 currently provides that "A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section". Subsection (2) deals with the High Court's power to give a direction; subsection (3) says that "A direction of the Court under this section may be given either on application made on behalf of the person concerned or by the Minister"; subsection (4) says that "A direction under this section may be given by the Minister on any of the grounds set out in paragraph (a) or (b) of subsection (2)"; (a) or (b) stated that extradition would apply either for a political, revenue or a military law offence or if there were substantial grounds for believing it.

It is a most peculiar feature of our law that the Minister can have the same power as a High Court judge in this case. A Minister can effectively cancel an arrest which has at that stage already been decided on by a district judge. A person arrested by a district judge can go to the High Court and make a case himself under subsection (2) (a), (b) or (c). The Minister can go to the High Court and say, "Let him out, please let him out because of this provision". The Minister is also entitled to say, "Whatever about the court, I am doing it myself anyway", which seems to be an extraordinary proposition. The Minister can make a decision mirroring that of the High Court. How many times have directions been made on subsection (2) (a) and (b)?

If the Minister of the day decided that a matter was a political one, are they acting on this occasion in a quasi-judicial fashion or in a political and Executive one? Could a Minister say, "I think this is a political offence. I am letting the person out, whatever about the courts or whether the person could persuade the High or Supreme Courts". If there was decided case law on the issue, could the Minister ignore it? I find that provision mysterious. Does the Minister think the power she is given by this section is constitutional and will either she or her successor exercise this power? One never hears about this. It is also peculiar that no public record is necessarily made of ministerial decisions unless they are set out in this report, which comes too late.

I cannot accept this amendment and to explain why, one must first look at the concept of extradition. Two different aspects of extradition have to be considered. In the international context, extradition is an exercise of sovereign power by the Government of a state in its relationship with other states. Subject to its treaty obligation, each state has total discretion in exercising that power. In the domestic context in all European states, individuals have certain rights which are protected by law and are overseen by the courts. The approach taken in most European states is that extradition is clearly a two-phase operation. The first phase is a judicial one and ensures that the rights of the person sought are respected. Once the courts find it is legally in order to extradite the person, the matter then passes to the second phase. This is purely an Executive function and is normally left totally to the discretion of the Minister for Justice or the Government to decide whether a particular individual should be extradited.

In the other 11 member states of the European Union, the final decision to extradite or not rests with the Executive. The position is similar to but not identical in the Extradition Act, 1965. In Part II, under section 33, the Minister makes the order surrendering the person concerned to the requesting state. The situation is different in Part III, which deals with the United Kingdom. The District Court, under section 47, makes the order of delivery, but subject to the provision which allows either the High Court or the Minister to intervene to order the release of the person in certain circumstances.

It is generally accepted that once the rights of the person sought have been respected, the decision whether to extradite them is an Executive one. My role, under section 50, is perfectly in keeping with this view. Indeed, in my Second Stage reply in the Dáil yesterday, I stated that my role was less significant than that of my counterparts in other countries.

I would now like to turn to the issue of whether section 50 of the 1965 Act is in conflict with the Constitution in any way. The first possible argument is that a Minister exercising his or her power under section 50 represents an unwarrantable interference with the exercise of the judicial function in that it could overrule the decision of the District Court ordering the delivery of a person. Under Part III, the District Court does not have the jurisdiction to address the question as to whether an offence is political. That function is reserved for the High Court or the Minister. Therefore, there is no conflict between a decision of a Minister under section 50 that an offence is political and that of the District Court, as the District Court has, and can, never address that issue. Furthermore, any exercise of a power under section 50 can only be in the interest of the person who is the subject of the extradition request. It has no adverse implications for any individual within our jurisdiction. Its only possible adverse implications are in our relationships with the country which made the request and that area is clearly reserved for the Executive.

The second possible argument is that a Minister could make a decision in direct conflict with that of the High Court. However, section 50 envisages the High Court or the Minister exercising powers under that section. Normally, it would only be one or the other and there would not be any conflict. In theory, it is possible that the High Court would rule that an offence is not political and the Minister might try to prevent a person's extradition by releasing that person on the grounds that the offence is political. It is unlikely that such a situation would occur and I am not certain what the constitutional position would be. However, I would remind Deputies that a Minister exercising powers under section 50 is obliged to exercise them in a manner consistent with the Constitution. As such, I am confident that section 50, as it now stands, is constitutional.

My legal advisers have discussed this issue with their counterparts in the office of the Attorney General who generally share this view. I can have a closer look at the section between now and Report Stage and consider putting forward an official amendment to put matters beyond doubt. I am strongly of the view that the safeguards provided for in section 50 are proper and appropriate to the office of the Minister for Justice.

I would particularly draw the committee's attention to section 50 (2) (b), which provice "That a direction to release a person can be givne if there are reasons for believing that the person will in fact be prosecuted for a political offence". The Executive, I suggest will be in a much better position to make such a decision than the courts.

Finally, Deputy McDowell asked how many times this section had been invoked by a Minister for Justice. As far as both myself and my officials are concerned, it has never been invoked by a Minister for Justice.

I appreciate that there is a difference between Part II and Part III in that the relevant provision in Part II envisages the Minister making it an order of surrender by order of the Minister. Section 35, which is contained in Part II of the Act gives a general power to the Minister to release somebody if the extradition is prohibited under Part II or the relevant extradition agreement. There is a duty on the Minister at that stage.

Section 50 seems to conflict with the principle laid down in Costello's case for people being returned for trial. Costelloe's case dealt with the District Court refusing an order to send a person forward for trial. Under the Criminal Procedure Act, 1967, the DPP purported to put him on trial anyway. In that case, it was decided that once the State submitted an issue to the court, it was bound by its decision and could not effectively reverse it. I accept that there is not an exact analogy with this but there is a close constitutional principle and they are probably cognate ideas. If the State decides to extradite me and I appeal it through the High Court to the Supreme Court and there is a determination that the offence for which I am being extradited is either political or revenue, presumably at that stage if the Costello decision is rightly decided, the Minister cannot say "The Supreme Court have got it wrong, I am looking at it and it is a revenue or a political offence."

If I were in your position I would ask a parliamentary question.

The analogy with the Costello case is that if the Minister submits it to the court and argues it up to the Supreme Court, he could not give a direction under paragraph (a) or (b) thereafter that it was a political offence despite the fact that the Supreme Court had found as a matter of law that it was not, because he is not given the power. Subsection (4) says that the Minister can only let somebody out on the grounds set out in section 2 (a) and 2 (b). If the Surpreme Court had found as a matter of law that (a) or (b) of section 2 did not apply to the person, it seems to me that the Minister would be caught by the Costello decision and would not have this power. I suggest that between now and Report Stage the Minister's power under subsection (4) or subsection (1) should be confined to cases where the matter has not been decided by the courts.

The other point which I wish to raise with the Minister — and I do not want to waste too much time on it — is in relation to the Father Patrick Ryan extradition case. As I understand the case, the Commissioner of An Garda Síochána was advised by the Attorney General not to seek the extradition of somebody on foot of a warrant which was supplied by the British on other grounds. The grounds were that because of media and parliamentary comment he would not be guaranteed a fair trial. It seems that the Attorney General did not rely on his powers under the 1987 Act — I ask the Minister to confirm that — or even on the powers under section 50, but took a more general basic viewpoint that he had an overriding constitutional right to intervene on grounds not set out in section 50. If that is the case I would like to hear it acknowledged, because many people still believe that Father Patrick Ryan was let out by the Attorney General under the 1987 Act. I would like to have it confirmed here that he was let out because the Attorney General advised the police and the Minister for Justice at the time that his constitutional rights would be infringed if the proceedings went any further and that no reliance was put on any specific statutory provision.

I can certainly look at what the Deputy is proposing. I am not going to go into the lengthy 16 page public statement the Attorney General made in relation to the case he mentioned, but I can make that statement available to the Deputy.

Can the Minister confirm that the Attorney General did not exercise his functions under the 1987 legislation?

Can the Minister confirm that it was not under section 50 of the 1965 Act that he operated but under a general power separate from those which he considered to exist under the Constitution?

Amendment, by leave, withdrawn.
NEW SECTION.

I move amendment No. 6.

In page 2, before section 2, to insert the following new section:

"2.—Notwithstanding anything contained in the Extradition Act, 1965 (Part II) Order, 1989, (Statutory Instrument No. 15 of 1989), the said Order and the Extradition Acts, 1965 to 1994, shall apply to Irish citizens.".

This amendment deals with the question of extradition of Irish nationals to continental Europe and it is put down to raise the issue rather than to arrive at a definite result. The Progressive Democrats and I fully accept the points made by the Minister yesterday that in dealing with a foreign jurisdiction that will not send its own nationals here, it would be a bit strange to provide that in every case an Irish national will be extradited to those countries.

That raises the question the Minister mentioned earlier today, that there is a general review of extradition happening at EU level. In that context I wish to raise the following issue. As I understood it, at the time of some of the shootings in Germany, a German request was made for the extradition of an Irish citizen here. The German Government sent documents requesting the extradition of an Irish citizen to Germany to face terrorist charges in the German courts. Instead of being told honestly by the Irish Government that there is no power to extradite an Irish citizen, the Germans were told again and again to get documentation right. They were told that the documents were not right but they were never told that they would not get a positive result at the end of it. This caused some considerable anger in Germany. They could not seem to make any progress with their extradition request and no Irish Government Minister at the time admitted, publicly at any rate, that the ultimate outcome of the German request had to fail because the person in question was an Irish citizen. Am I right in that?

I am not familiar with the case mentioned by Deputy McDowell so I cannot comment as to whether my predecessor informed his opposite number that we could not extradite an Irish citizen. I am not certain about that so I will not comment. I am not sure what the facts of the situation were.

Would the Minister confirm that in relation to an Irish national who was accused of committing an offence in, for example, Germany or Holland, under the 1965 Act there is jurisdiction to try such a person for an offence here if we refuse extradition on grounds of Irish nationality?

Yes. Under section 38 of the 1965 Act, where a person is not extradited because he or she is an Irish citizen, that person may be prosecuted in an Irish court.

Would it not be a good idea to tell all those party to extradition agreements in Ireland, particularly the civil law countries, that they cannot get an Irish citizen out? If they suspect an Irish citizen of murdering somebody in Germany, they should bring their case to Ireland because there is no point in sending over extradition warrants.

Last September we had the first initial discussion of EU Ministers at which I was present in relation to extradition. At that time each Minister for Justice laid out very clearly to the meeting exactly what the position was in their own country in relation to extradition and it was very clear that there were difficulties and variations between the 12 members of the union. The main reason we are concentrating in the first instance on nationals is because that is where the variation is and where the problems are. That is why I said earlier that I did not want to do anything in this legislation that would pre-empt any decision that would be made to modify procedures that are there as between the Twelve at the moment.

Amendment, by leave, withdrawn.