Amendment No. 1 is in the name of Deputy Costello. Amendments Nos. 3, 26 and 27 are related. Amendments Nos. 1, 3, 26 and 27 will be discussed together.
Transfer of Execution of Sentences Bill 2003 [Seanad]: Report Stage.
I move amendment No. 1:
In page 3, line 22, after "1997" to insert the following:
", the text of which in the English language is set out for convenience of reference in Schedule 1 to this Act”.
I welcome the Minister for Education and Science to the House but I am somewhat disappointed that the Minister for Justice, Equality and Law Reform appears to find it difficult to find his way to this House. He has no problem finding his way on to "Today with Pat Kenny", as he did yesterday morning, to have a nice smug interview without any opposition and to try to steal the limelight about what he intends to do. However, he finds it difficult to come into the House, where he should be. That is the job he is paid to do. I wanted to put that on the record at the outset.
My important amendments Nos. 1, 3, 26 and 27 are related. Similar amendments were tabled in the Seanad and they have now been revamped to take into consideration some of the remarks made by the Minister in the Upper House. Essentially, the principle concerned here is that we need to insert in the legislation the information that is part of the European agreement. If we do not insert the relevant texts to which we are referring, it creates a messy situation for any lawyer or citizen. We should not consider law as simply the preserve of lawyers. It should be regarded as the preserve of citizens because the law is enacted for them. It is normal practice that Schedules are listed as part of the legislation. They are generally inserted at the end of a Bill. In this case, therefore, it would be helpful if the part of the Schengen Convention referred to in the text of the European agreements we are discussing was included in the legislation. I propose that we should insert the relevant parts, but not all of them. I have excised the parts that are not relevant to the Bill. If that facility was provided, anybody accessing the legislation could immediately refer to the precise details, rather than having to consult the convention itself in another document, which might cause greater difficulty.
Legislation should be consolidated so that whatever one needs is available in particular legislation. One should not have to refer to other legislative aspects elsewhere. It would be a simple matter to include in the Bill the text which is set out for convenience of reference in Schedule 1. Amendment No. 3 seeks to insert the Preamble, Title 1, etc., in Schedule 2. Amendments Nos. 26 and 27 include the text to which we are referring.
I ask the Minister at this late stage to make a final effort to improve the quality of the Bill by providing convenience of reference for legal practitioners and citizens generally who avail of the legislation.
Deputy Costello has made an interesting point. The question is whether legislation as enacted should be just for legislators and lawyers or be specifically couched in language which is intelligible for lay people. Legislators and lawyers have both the support and the opportunity to interpret legislation, whereas lay people generally do not. Deputy Costello has touched on an issue that goes far beyond this Bill. The question is whether, in framing legislation, we should follow the lead given by other countries where a real effort is made on two fronts: first, to make legislation comprehensive so it covers all relevant issues in one reading; and, second, to use simple language. I recently read a paper by someone who is preparing a doctoral thesis on this interesting subject. The issue has not been addressed in Ireland at all, although it has been examined in the United Kingdom where considerable changes have been made in the approach to drafting legislation.
The matter to which Deputy Costello referred has not been addressed sufficiently in recent times by any Government or by the Legislature generally. Legislation should be made more comprehensible to the lay person. The question is whether we can make a greater effort to use simpler language in drafting legislation. The issue goes far beyond this Bill, but it is no harm to give it an airing here.
I agree with the Deputies on two points. First, Deputies will be aware that we are working towards the consolidation of legislation, particularly given that much of our legislation dates from approximately a century ago. Second, most people cannot understand the language used in legislation, other than the lawyers who make their living out of interpreting it. That idea should be progressed further. Notwithstanding that, however, I do not propose to accept the amendments for the following reasons. Deputy Costello has asked that the additional protocol and certain parts of the Schengen Convention should be added as Schedules to the Bill. In this legislation, however, we are not giving effect to the full protocol. While the protocol contains articles, only two contain substantive provisions — they are Articles 2 and 3. Of these, Ireland is proposing to operate only Article 2. In those circumstances therefore it would be inappropriate and possibly misleading to schedule the entire protocol when we are giving effect to only a part of it.
Deputies will also be aware that the protocol relates to the main convention. Ireland gave effect to that main convention in the Transfer of Sentenced Persons Act 1995. Scheduling the protocol in the case of the Bill before the House seems odd when the main convention itself has not been scheduled in the 1995 Act. Scheduling the protocol in these circumstances might lead to confusion as to the exact legal position. Such an outcome would defeat the purpose of the amendment.
In the case of the Schengen Convention, the amendment proposes that a number of parts, but not all of it, should be added to the Schedule. Some of the parts that are proposed to be added have little bearing on the matters in this Bill. The Bill gives effects to just three articles — Articles 67 to 69, inclusive — dealing with the transfer of the enforcement of criminal judgments, which is Chapter 5 of Part 3. These are the only articles of the convention that are referred to in the Long Title to the Bill.
The proposal may therefore be outside the scope of the Long Title, or at least at variance with the Long Title. That fact, along with the disjointed nature of the material it is proposed should be added, has the potential to create much confusion and uncertainty as to the precise scope of the Bill, which is exactly what I imagine most Deputies do not want to happen in this legislation.
As I have already said concerning the proposal to add the protocol to the Schedule, this outcome would defeat the intention behind the amendment. In light of what Deputies have said about clarity of language, I do not think they would want to defeat that purpose. For those reasons, I do not propose to accept the amendments.
I thank the Minister for her reply. Rather than undermining the position we have proposed, I thought the Minister supported it. She said that what is included in the amendments is not precisely what is referred to in the relevant text. I am trying to ensure that the relevant texts from the Schengen agreement are in the text of the Bill. If the Minister disagrees with me as to what should be inserted, the parliamentary draftsman should determine what is precisely relevant. Are Protocols 2 or 3 relevant, or both of them? The Minister said she thought that Protocol 2 alone was relevant. If that is the case, let us insert it in the legislation so that the ordinary person who may wish to access the legislation will be able to do so without having to visit the Law Library or find it on the Internet. It is difficult for a lay person to plough through the entire Schengen agreement. These European treaties are not easy for the lay person to interpret. People make a living from interpreting them and are well paid to do so. Our learned friends do exceptionally well in respect of these treaties but the ordinary citizen does not. What is the sense in us simply passing law for the benefit of a few learned people who can get through the technicalities of complex documentation? Surely we in this House have a duty to put as much facilitating material as possible into legislation. Where we refer to protocols and treaties, we should put those texts into the legislation. In this case, we are not dealing with an enormous amount of text so there is no basis to the Minister's objection. We are only talking about a couple of pages of text. From what the Minister for Education and Science, Deputy Hanafin, said, it is probably less than what I have suggested. If the Minister, Deputy McDowell, is not happy with the text I have presented in these amendments, he should tailor it to the specific needs of the legislation. He should not use an extraneous argument for not making the legislation as accessible as possible to the lay person as well as to professionals.
I support Deputy Costello in the general sense that we should examine the way we draft legislation with two objectives, first to make it more comprehensible if possible to the layman rather than just to legislators and lawyers and second we should look at how we can simplify the language. Much progress has been made on that front in the UK and that is a lead we could usefully follow here.
I apologise that I was not present when the debate started. I was meeting with survivors of child abuse in the Ferns context and the meeting went on slightly longer than I had hoped. The Minister for Education and Science, Deputy Hanafin, has put the point fairly and squarely. To do what Deputy Costello is suggesting would be unnecessary. It was not done in the 1995 legislation. In all of the circumstances it will not have the effects that "Judge Costello" mentions.
As this is the Minister's first contribution he can continue.
The Minister, Deputy Hanafin, was so eloquent that I do not need to add more to what I said.
My apologies.
Apart from agreeing with Deputy Hanafin, the only thing the Minister said is that it was unnecessary. What does "unnecessary" mean? Does it mean it is not necessary for the lay person or not necessary for the legal profession? It is usual to have Schedules and protocols in legislation. We are not departing from the norm. One could say it has not been included in some legislation but the norm is that where there is a text relevant to the legislation, it is included in the legislation. We are not talking about putting a whole treaty in the legislation, we are talking about putting in the relevant section of the text.
To the ordinary person looking at what we are doing in the House, it may appear we are working on some secret mantra to conceal the core of what we are doing. It may look like a secret formula that we are not prepared to unlock by giving the keys to it in the form of the text referred to in the Schedule. That is really where we are at. For the Minister to say it is unnecessary begs the question, for who or what purpose. It is necessary for ease of access, to facilitate people, for convenience and to present our legislation in a more attractive and accessible form.
We have talked endlessly about the consolidation of legislation. The criminal code needs to be consolidated. I compliment the Minister for beginning that process. We could talk for ever about simplifying legislation and making it accessible to the layman. We do not need to simplify legislation if it is only going to be accessible to the professionals because that is what they are trained and paid to do. If we are going to consolidate and simplify, let us also provide maximum accessibility. That can only be provided if we show people in the Schedules and appendices to the legislation what we are referring to in the provisions. In that way they can understand the sections of the legislation without having to delve into a library of references to find out what we are going on about. Even at this late stage, I urge the Minister to reconsider his position and to make this better legislation.
I will put the question.
Is the Minister not going to reply?
I have said it all.
Amendment put and declared lost.
Amendment No. 11 is related to amendment No. 2 and they will be discussed together by agreement.
I move amendment No. 2:
In page 3, between lines 25 and 26, to insert the following:
"‘relevant authority' means the person designated in the relevant country concerned who performs functions the same as or similar to those performed by the Minister under this Act;".
We discussed this matter on Committee Stage. It relates to discussions we have had already about the ease with which a lay person can understand legislation. The concept of relevant authority is central to the Bill and it should be clarified and defined at the outset. I have transposed these words from section 5 as I consider them to be more appropriate to the definition section. In dismissing this amendment on Committee State, the Minister did not satisfactorily explain why this definition does not add to the clarity of the Bill. The Bill should be understandable to lay people from start to finish.
Section 5 provides a definition of the relevant issue by saying, "the Minister may request the person in the designated country concerned who performs functions the same as or similar to those performed by the Minister under this Act to consent to and arrange . . .". It is clear who the person is. The definition section would only repeat that in a different place in the same statute. It is clear from the terms of the statute that the person to whom this request can be made is somebody who performs the same or a similar function to the Minister in the corresponding state. I would run into difficulty if I were to attempt to put a catalogue of possible definitions, sufficiently broad to cover every member state of the convention. What is in section 5 is perfectly adequate.
Amendment, by leave, withdrawn.
Amendment No. 3 not moved.
I move amendment No. 4:
In page 4, between lines 18 and 19, to insert the following:
"2.—Section 11 of the Transfer of Sentenced Persons Act 1995 is amended by the deletion of ‘including information in relation to each application made under this Act' and the substitution therefor of ‘and the Transfer of Execution of Sentences Act 2005, including information in relation to each application made under this Act of that Act'.".
This amendment requires the making of an annual report of activity under the Act. The Minister said the matter could be included in the report under section 11 of the 1995 Act. However, section 11 appears to require an amendment to deal therewith. Consequently, the amendment we tabled originally on Committee Stage has been altered slightly to facilitate that. I hope the Minister will accept it.
This amendment, in effect, calls for an annual report on cases arising under this legislation. It is expected that, at most, only a small number of cases will arise thereunder. Perhaps no cases will arise in certain years. As a result, the requirement to produce a report would be disproportionate to the need to be addressed or the perceived benefit of such a report.
I said on Committee Stage that, in the event of cases arising, the matter could be dealt with administratively by including such cases in the report presented to the Oireachtas under section 11 of the 1995 Act. As the matter can be dealt with in that way, there is no need for a formal amendment.
Whenever we include in legislation the need for an annual report, it must be diaried into the relevant Department's internal system. Some official must be told that, on a certain day, he must produce the annual report in accordance with the statute in question. He must then set aside a day or two for research, produce the report and present it to the Houses of the Oireachtas. This takes time and money.
While some degree of transparency is desirable, tying down departmental officials to a diary that requires them to report on relatively minor issues, which may not even arise annually, represents an increased imposition on them and is of very doubtful value. If anybody is interested in the information they can elicit it by way of a parliamentary question. However, asking an official to prepare a report when Members will not even bother tabling parliamentary questions thereon is a waste of time.
The Deputy referred to section 11 of the 1995 Act, which provides that the Minister shall, within four months of the end of each year, beginning with the year ending 31 December 1995, make a report to each House of the Oireachtas on the operation in the preceding year of matters within the Act, including information on each application made under the Act. On the Bill before the House, it is perfectly possible, without requiring a separate report, to deal with the matter on the basis of an administrative extra paragraph that can be included if people want it in the event of any transactions taking place. The idea of providing for a separate report under this Act is unnecessary and adds to the complexity of trying to administer the law, the responsibility for which will fall on successive Ministers and generations of public servants.
I do not really know the outcome of the Minister's argument given that section 11 of the 1995 Act requires an annual report. Given that it is a statutory requisite, it should therefore be a requisite to have a report on the operation of the Transfer of Execution of Sentences Bill 2003. The two can be rolled into one. An amendment is necessary because it is not obligatory to make any reference to this legislation.
Under the 1995 Act, an annual report is required. A list of the number of times the legislation before the House will have been used in terms of the transfer of the execution of sentences could easily be appended. The Minister says as much. Where is the problem? The information will be provided anyway and therefore it is no big deal to add on another little piece of information that would make the operation of this legislation more transparent.
To say the relevant information can be obtained through parliamentary questions does not reflect the way in which we should do our business. If we already require an annual report regarding the 1995 Act, why not require it in respect of this Bill? Will the Minister agree to my amendment?
I will accept the amendment.
I am flabbergasted.
Amendment agreed to.
I move amendment No. 5:
In page 4, between lines 18 and 19, to insert the following:
"2.—The purpose for which this Act is enacted includes the giving effect to the following:
(a) Article 2 of the Additional Protocol to the 1983 Council of Europe Convention on the Transfer of Sentenced Persons; and
(b) Articles 67 to 69 of the Schengen Convention.”.
It is always useful to find a "purpose" provision in a Bill. It helps us as legislators and is even more helpful to the lay person, who can find out the purpose of the Bill from reading just one section. I disagree with those who say the Long Title of every Bill is necessarily a good thing — this is simply not true. Each Act should have a "purpose" provision. This would be just a small step towards making our legislation more understandable. I ask the Minister to consider such a provision, not only in this Bill but also in all others.
This amendment is just another effort to try make the Bill more understandable to the ordinary person. When it was put to the Minister on Committee Stage, his argument against it was based on drafting style. If his only reason for not accepting my proposal is drafting style, and if the proposal makes the legislation more understandable from the lay person's point of view, he should accept it.
I support Deputy Gerard Murphy. His amendment is an extension of what I was seeking to do through amendments Nos. 1 and 3 to make the legislation more understandable and accessible. It is important that the purpose of the legislation be clear and that it state categorically that it gives effect to provisions in Article 2 of the Additional Protocol to the Council of Europe's Convention on the Transfer of Sentenced Persons and also Articles 67 to 69 of the Schengen convention. I was going a step further by seeking to include the relevant sections in the legislation.
We should examine our consciences regarding these matters. It is not a question of sticking with tradition but of doing what is most beneficial to the ordinary citizen. We should erase from our minds our ideas on professionals and the norm in the past and think about what is useful and accessible to ordinary people in the legislation we pass in this House.
This was discussed on Committee Stage. It has been the style in this Legislature and its predecessor under the Irish Free State to set out a Long Title to every Bill. The Long Title is generally supposed to be a statement of the overall purpose of the legislation. Deputy Gerard Murphy is arguing for a different approach that gets rid of the Long Title completely and states the substance in a "purpose" section in the legislation. I can see the attraction in that because some people feel Long Titles appear antiquated in that they are presented in the upper case and are hard to read. I, as a member of the Government, am not in a position to tear up the existing practice.
The Oireachtas is directed by the Constitution to use a Long Title in respect of amendments to the Constitution. The terms of the Constitution prescribe how a Bill to amend the Constitution should be presented textually. At least in that case, the Long Title is more or less constitutionally required. Whether it is a good idea to have no Long Title and include a purpose section in the case of legislation that is not amending the Constitution is a matter for debate. The Deputy should take the matter up in a more general way with the Taoiseach who is answerable for the Office of the Attorney General in this House. We cannot scrap the Long Title and replace it with a purposes section on a piecemeal basis just because one Minister likes it better than another. It would require a major policy change across all legislation. I am not in a position to agree to it today and I am not sure it would be a good idea to do so.
I am disappointed by the Minister's response because the reasons for this amendment are quite clear and it would benefit the lay person. I am also disappointed because the Minister is never shy about taking the lead in many areas and if he took the lead on this issue other Ministers would follow suit.
I did not think, as the Minister seems to suggest, that the passing of this amendment would abolish the Long Title of the Bill because we do not propose this as a substitute for the Long Title. The amendment is introduced in section 2 as an additional clear explanation of the purpose of the Bill. The Long Title is a general description but this states the precise purpose of the Bill and sharpens its thrust.
The Minister would not be departing from tradition in a way he does not feel entitled to do or that might encounter some legal impediment. He would enhance the Long Title with a sharper presentation of the purpose of the Bill in the text.
I am not an expert on procedure in this House and am not clear whether Standing Orders require there should be a Long Title. When one wanted to move a Bill one had to produce only the Long Title to get permission for it to be printed. It was necessary to state the purpose of the Bill in general terms.
It is not a good idea to have a Long Title followed by a purposes clause because my colleagues in the legal profession would surely find discrepancies between the two, unless the text of both was the same. They will argue that because of a deviation between them one should be preferred to the other. In those circumstances it is better to stick to the present mode.
It used to be that if one wanted to move a Bill and get leave to circulate the text one needed to move only the Long Title on the Order of Business. The Long Title, therefore, has a function under the rules of the House and I do not wish to create a situation in which a purposes clause and the Long Title could be seen to conflict.
If we are to switch from one mode to the other I would like to consult the Parliamentary Counsel on the merits of the idea and the Oireachtas Commission on whether it wishes to do business in that way. It is not for me to make a unilateral excursion at the invitation of the Deputies.
Amendment put and declared lost.
Amendment No. 6 has been ruled out of order.
Amendment No. 6 not moved.
I move amendment No. 7:
In page 4, line 19, after "sentences" to insert the following:
", including those imposed outside the State".
In our legislation there is a presumption against extra-territorial effect, to rebut which clear words must be used. I propose this amendment to guarantee that this Act applies to sentences imposed outside the State. I presume the Minister will have little difficulty with the substance of the amendment.
This amendment is unnecessary as it is already clear from sections 5 (i) and 6 (i) that the Bill deals with two distinct categories of sentence, namely, those imposed in the State and those imposed in other designated states. Section 5 deals with cases in which a person has been sentenced in this country but has fled and is now in his or her state of nationality. In that case the Minister can request the state of nationality to enforce the Irish sentence.
Section 6 deals with cases in which an Irish person has been sentenced abroad and has fled back to Ireland without having served the sentence. In that case the authorities in the sentencing state can request the Minister to arrange to have the sentence enforced here. Section 6 provides for the receipt of such requests.
Sections 5 and 6 are clear on this point. The amendment as drafted could lead to some difficulty because it refers to sentences imposed outside the State. That, however, is too wide. The Bill is concerned only with sentences imposed in other designated states and section 4 outlines the process by which states are designated.
While I understand the amendment is intended to be helpful, sections 5 and 6 make it redundant and for technical reasons it could disimprove the situation by referring to sentences imposed outside the State in countries other than those designated.
Amendment, by leave, withdrawn.
Amendment No. 8 arises out of Committee Stage proceedings, amendment No. 9 is related and both may be taken together by agreement.
I move amendment No. 8:
In page 4, line 20, after "passing" to insert the following:
", but shall not apply to a sentence imposed before its passing and in circumstances where an application could have been, but prior to such passing was not, made in respect of the person on whom the sentence was imposed pursuant to the Extradition Acts 1965 to 2001 or the European Arrest Warrant Act 2003, or in respect of which such application was made and not granted".
The relevant section in the Act states:
This Act applies in relation to sentences, whether imposed before or after its passing.
I object to the retrospective nature of that blunt, unconditional statement. The Minister might point out that it is not really retrospective in the sense that it will not involve sentencing people retrospectively, which I accept. It will, however render a person liable to being arrested and imprisoned who is now free in the State and might have been for many years, making it potentially unfair. I propose a safeguard, namely that the requesting state which could have sought the extradition of the suspect but failed to do so should not be allowed to reactivate an application if it failed to pursue it prior to the legislation going through. If an application were lying dormant for years, it should not now be activated.
In a case where extradition was sought and not granted, that too should be outside the remit of this Bill. In that sense the Bill should not be retrospective to cover a situation where extradition proceedings were entered into, but failed. This could be a means of trawling in an area where the situation had been dealt with, perhaps by extradition legislation, where the opportunity existed to seek someone's return to the country but was not acted on and now it could be activated. That is unfair and some protection is required in the area, particularly since the abolition of the political offence exception. In those circumstances we could create anomalies and difficulties, and the legislation would probably benefit from the type of amendment I propose.
Tá mé ag labhairt ar leasú Uimh. 9 agus á mholadh. Ba chóir go ndéanfaimis gach aon rud dár féidir linn le déanamh cinnte de go bhfuil an oiread cosanta agus is féidir ó thaobh cearta de acu siúd a bhfuil an Stát chun déileáil leo.
The purpose of this amendment is similar to that of Deputy Costello but goes slightly further in proposing an additional safeguard against the State executing judgments from countries with unfair judicial systems. It is important to clearly allot this discretionary role to the High Court from the outset, especially given the absence of human rights criteria with regard to the absolute discretion of the Minister for Foreign Affairs in designating countries for the purposes of this Act. Orders by the Minister designating countries under this Bill as currently drafted are laid before both Houses after they have been made. Accordingly, the High Court should have a role in this respect to ensure that proper account is taken of monitoring regime change and changes in judicial and detention standards in the designated countries. A country may be designated by the Minister for Foreign Affairs and the situation in that country might improve or get worse in the intervening time. This Bill does not make provision for a review of the designated country status.
Likewise, the criteria governing the decisions by the Minister for Justice, Equality and Law Reform in these cases on whether to grant consent to a designated country to a request that a sentence be served in this country are gravely lacking from a human rights perspective. Elements of this legislation are not unlike the disgraceful decisions made by the Minister when he introduced immigration legislation in this House last year, whereby a number of countries were deemed to be safe. One of those is Nigeria, where every year, hundreds of people die at the hands of police officers.
We need to ensure that the designating of countries can be reviewed. The current list of designated countries includes some which have not come up to the mark in terms of conditions of detention. Georgia has been cited by various groups, in particular by the UN Committee Against Torture, which said the detention conditions in Georgia are akin to torture. Other listed countries have still to rise to the EU mark set under the Copehagen Treaty, though they are making progress, and in the future might reach the standards we expect in our own judicial system. The powers in this regard are given to the Minister, but the onus and power should be shifted to reside with the High Court, so that it would give explicit guidance relating to the quality of the judicial process in those designated countries, the quality of the detention centres or prisons, or whatever places in which sentenced persons are to be held. Considering that Irish citizens could be held in these conditions abroad, and people would be placed in prisons in this State, we must ensure that proper due process and the judicial process in the designated countries are up to the standards set out in legislation in this House.
Given that the Bill does not make provision for the sentenced person's right to make representations to the Minister as to why he should not grant consent, there should be the opportunity of recourse to the High Court for a decision on the designated countries, and to ensure that the High Court can make such a determination. There might be a role for the proposed new European human rights agency discussed last week at the Joint Committee on Justice, Equality, Defence and Women's Rights. That agency might look into human rights conditions in various European countries but could perhaps also be requested by states, or the Minister or the High Courts of those states, to investigate the standards in various countries.
The High Court would provide an opportunity to be open and transparent about how such decisions are reached. The person affected would have an opportunity to put his or her case too. This would take pressure off the Minister, whether it be the Minister for Foreign Affairs, in terms of designating a country, or the Minister for Justice, Equality and Law Reform, so that he or she would be fully aware of the facts. The High Court is where this decision should rest.
I draw Deputy Ó Snodaigh's attention to the provisions of section 9(2)(f) of the Bill. The High Court is given a very significant role with regard to every application to execute a sentence on foot of the terms of this Bill in this State. The High Court is expressly prohibited from ordering that a sentence be served under the circumstances set out in section 9(2)(f). The legislation provides for extensive grounds for the non-execution of a sentence in this State, including situations pertaining to the European arrest warrant. Fundamental rights are fully protected under the legislation and provide guarantees that the High Court cannot allow a sentence to be served in Ireland if the person concerned can resist on human rights grounds his or her return under a European arrest warrant or an alternative extradition request not covered by the legislation. In situations where, on an individual case basis or due to changing circumstances, designated countries slip below a standard of acceptability, the High Court is obliged not to execute or allow a sentence to be executed if there is justification for the non-extradition or non-rendition on a European arrest warrant.
The real question is whether this should be made prospective only. Both Deputies sought safeguards rather than argue for an absolute prospective only rule. These safeguards are contained in section 9 because the High Court has to ask itself the same questions raised by the Deputies, that is, whether extradition should be refused. If it is refused, the court is prohibited from ordering the sentence to be served in Ireland. From a human rights perspective, the situation is covered.
Of the countries which have enacted their European arrest warrant obligations pursuant to the framework decision of the European Union, Ireland is among the most protective of human rights. We have no reason to be ashamed because every possible safeguard has been included. While some authorities in Europe believe we have gone too far, I am happy the European arrest warrant legislation provides for the adequate protection of Irish people. The same standard of protection is provided with regard to requests that a sentence imposed abroad be served in Ireland. The court may not allow for the sentence to be served in Ireland if, in respect of the offence, the country making the request could be properly refused extradition or rendition under the European arrest warrant system.
The Minister referred to the safeguards in section 9 which, however, are not of the order we seek and do not correspond to the point I made on situations where extradition could be refused at present. Circumstances have changed since the political offence exception was abolished but, if we are retrospective in terms of what was an offence but was not activated at the time, the provision in section 2 that the legislation would apply to sentences passed before or after its passing leaves me uncertain as to whether a safeguard exists in this regard. Section 9 appears to concern only those cases in which extradition would be refused at this point in time. I ask the Minister to clarify whether protection exists in these circumstances.
My previous point concerned circumstances arising from the 1965 extradition legislation. Do anomalies exist in the implementation by various countries of the European arrest warrant in terms of retrospection and prospectivity? Is it possible that, because some countries have not made it retrospective, fugitives fleeing from justice cannot be arrested under the warrant? It is being introduced differently in Ireland.
How many countries have ratified and transposed into legislation the European arrest warrant? Are other countries fulfilling their duties by transposing it into legislation or are we ahead of the posse? How many countries have implemented the warrant in their own fashion, which they are entitled to do provided they adhere to its principle? How many anomalies have arisen with regard to this matter?
My main concern is that, contrary to the Minister's assertion, section 9 does not provide protection with regard to the refusal of extradition.
Will the Minister clarify the statement issued in August that the Government would consider the application of this Bill with regard to whether the Colombia three could serve their sentences here? Can the Minister provide an outline of the Government's position on that issue and tell me whether the provision under discussion covers such a situation?
Last August, when Niall Connolly, James Monaghan and Martin McCauley fled to Ireland from Colombia after being found guilty of serious offences, the Tánaiste said the Government was considering whether the three men could serve their sentences in Ireland if extradition proceedings proved unsuccessful and mentioned this Bill as a possible means to address the issue. In many respects, the Bill is tailor-made to do so because it provides for cases where a person has been sentenced in another country but absconds before completing the sentence and returns to his or her native country. I accept this is a Bill that arises from a Council of Europe convention and a protocol to that convention. Given that the Tánaiste raised this issue on behalf of the Government as a possible way for dealing with those gentlemen, will the Minister indicate what progress has been made from that point of view in the context of this Bill? Have discussions taken place with the parties in Colombia on the possible adoption by Colombia of the provisions arising under this convention? I take it that when the Tánaiste raised this issue she had that in mind. She said at the time that she noted that Colombia was not a party to the relevant Council of Europe convention and, therefore, not a party to the additional protocol. She mentioned that it would be open to Colombia to seek to become a party to them. I am not sure on what basis she made that statement at that time.
This Bill will have little enough application in general circumstances and in some respects it is tailor-made for dealing with this situation where people have absconded, having been found guilty of serious crimes in another country, returned here and are sitting here, as it were, waiting for the Government to complete its deliberations and any discussions in which it may be engaged with the Government of Colombia. I and my party want to see this issue resolved. It is an appropriate time to raise it now and it is appropriate that the Minister should advise the House as to whether this Bill might provide an answer to that problem and a means by which the Colombia three could be dealt with here and serve their sentences here under the terms of this Bill.
Before the Minister replies, Deputy Ó Snodaigh wants to contribute.
By way of support.
If Deputy Jim O'Keeffe has finished his contribution, which sounds like a broken record, I will continue.
I accept there are safeguards in section 9, which I welcome. The purpose of my proposal is to explain at an early stage of the Bill exactly what safeguards are available on recourse to the High Court. I welcome what the Minister said regarding the safeguards contained in the European Union extradition Acts and the European Arrest Warrant Act. Despite our arguing this issue when we debated this matter here previously, I did not believe we had gone far enough in respect of the provision of safeguards. There will always be people who will want to row back from ensuring protections on human rights. That we are ahead of the posse in terms of some of our European neighbours in this context, points to there being different standards not only throughout the European Union but throughout the world in terms of the legal process, due process and the conditions of detentions. That is the reason we have continuously sought here to ensure that we have the highest possible standards in this regard. Even though we might have a high standard in terms of the European Arrest Warrant Act — it is not as high and does not give as much protection as is needed. In this amendment I seek to ensure that additional protections are given to those being considered for serving their sentences here.
Regarding the designation of countries, some 22 countries have signed up to the additional protocol. I am not sure if additional countries have signed up to it since the Human Rights Commission made its submission to the Minister. The Minister might confirm that number. I understand that 22 have signed up to the Additional Protocol to the Convention on the Transfer of Sentenced Persons. The Minister's reply might help in terms of my deliberations on this amendment.
Before I call the Minister to reply, I point out that we have spent considerable time dealing with amendments Nos. 8 and 9 and I am anxious to move on.
I refer the Deputies to the terms of Article 7 of the Additional Protocol, the title of which is "Temporal Application". It states, "This Protocol shall be applicable to the enforcement of sentences imposed either before or after its entry into force." If we are talking about the scope of the protocol that shows this section of this Bill is totally in line with the convention and protocol to which we are signing up.
Regarding the Colombia three issue, this Bill was prepared long before they came into view and at a time when they were participating in a more active way in the Colombian justice process. Therefore, I would not like it to be thought that — Deputy Jim O'Keeffe used the phrase "tailor-made" and I know he did not mean it in this context — this legislation was dreamt up for that purpose. It was there before they ever came on the radar scene and returned to Ireland.
The question is could it be used in that context now that it is being put through.
For this legislation to come into operation, it is necessary that in any particular case the State whose courts imposed the sentence would have to have acceded to the convention and to the protocol. That is the first absolute prerequisite. As currently advised, I do not believe Colombia has done that and I do not know whether it intends to do that. The Deputies will know there is a pending application to the Irish Government for extradition under the Extradition Act by the Colombian Government in respect of the three people mentioned.
In large measure, possibly the same issues would arise under section 9(2)(f) one way or the other. If extradition is not possible on the grounds mentioned in that subsection, this Bill will not circumvent that set of circumstances because the High Court would have to inquire whether it would extradite in order to decide whether it will allow a sentence to be executed in Ireland. What the Tánaiste rightly said was that in regard to the particular three fugitives who came to Ireland, there were three possibilities. One was that they would be extradited, if a request was made, which now has happened. The second possibility is that if no extradition request was made the terms of this legislation might be of relevance in those circumstances. The Deputies will see that is so, but the condition precedent I mentioned is still outstanding in respect of that. The third possibility is that there could be prosecutions in the domestic courts. That remains the situation and it has not changed. We have to leave it at that at this stage. I do not want to or propose to say anything more about the three individuals.
Deputy Ó Snodaigh is talking about rights and standards of international justice. I do not want to become overly combative or querulous at this hour of the day in these circumstances, but——
It never stopped the Deputy before.
I am fascinated by his preoccupation with these issues when I contrast it with his total silence in respect of the many people whose bodies, showing signs of torture, were found on the Border with their hands tied behind their backs and a hole in their head from a bullet wound. We are told that these were the products of a court martial by the so-called republican movement. In fact the people were tortured into making confessions. They made confessions on tape and the tapes were sent to their families. The only reason they made the confession was to stop the torture in the hope that they would be excused further torture.
What about the Minister's grand uncle who executed people on behalf of this State? Does the Minister remember that?
That is what happened.
What about the Minister's grand uncle who executed people without any evidence whatsoever?
We are drifting somewhat from the Bill.
I do not know what grand uncle the Deputy is talking about. I think the Deputy has got the genealogy slightly wrong.
Captain Hugo O'Neill executed——
I know of no ancestor of mine who ever brought anybody into a room and tortured them to the point where they were pleading for the torture to stop——
Captain Hugo O'Neill executed prisoners even with no process whatsoever.
——told them that the only way to end the torture was to make a confession, took the confession, sent it to their relatives——
At least they had an opportunity to speak unlike the victims of the Minister's uncle.
——shot them in the head and dumped them on a back road in County Louth.
The Minister's ancestors executed people.
It is extraordinary for the Deputy to say that at least they had some opportunity. I do not believe they had any opportunities.
The Minister would not know.
They were tortured into making a confession and then shot in the head. If that is justice, fine, but if the Deputy cannot condemn that kind of activity——
I have never condoned that.
No and the Deputy never condemns it either. He just goes into a silent mode.
I have never been asked on it.
The Deputy has been asked now.
Will the Minister condemn everything his party has done in Government?
We are anxious to return to the amendments.
In dealing with the——
What about the 77 prisoners executed in this State and others since?
Does the Deputy condemn the violence?
I have condemned the violence of this State regularly.
The Civil War and a bit of history.
Deputy Ó Snodaigh, we are dealing with amendments Nos. 8 and 9.
We are dealing with these two amendments. Deputy Jim O'Keeffe——
Broken record O'Keeffe.
——has rightly asked if it has potential application. It does have potential application if those conditions precedent are met but it is subject to the same proposition that if extradition would be impossible then execution of the sentence in Ireland would be impossible on foot of the same order. It is not something that will radically or profoundly alter the position and the Tánaiste made that clear at the time. That remains the position. I am not accepting the amendments.
I have two minutes and I will be brief. It was very important in the context of this Bill to raise this issue because it is current and is of major seriousness for this country. We have to ensure we make it clear to all concerned, internally and externally, that we are prepared to play our part in the fight against international terrorism.
On a point of order.
For many years we had the——
Deputy Ó Snodaigh on a point of order.
If the Deputy is allowed to speak beyond the normal order, then each of us should be allowed to speak again. If he was not present when the first——
I have allowed a certain latitude on these two amendments because there was a range of issues.
There has been no latitude.
From the Chair's point of view I do not want Members to impose on that generosity and expect that we can accede——
I am calling for the Standing Orders to be used as they are supposed to be used and I will make my two minute contribution.
Tá go maith. Deputy Jim O'Keeffe to conclude.
Deputy Costello should conclude.
I note that Deputy Ó Snodaigh would like to silence me on this issue in particular.
The Deputy can continue on the next amendment. He has nothing new to say anyway.
From a practical point of view this is the kind of issue we should discuss in this House. We should have a united voice in the House in our fight against terrorism at home and, in particular in regard to this Bill, against international terrorism. We should use every opportunity to ensure we will co-operate with any country where crimes have been committed and where those found guilty of those crimes have fled home to this country. I understand the difficulties. I accept we have no extradition treaty withColombia. I accept that Colombia has not acceded to the conventions——
On a point of order. We do not have a quorum.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
I ask Deputy O'Keeffe to resume. His two minutes have nearly expired.
I can understand the discomfort of Sinn Féin on the practical application of this Bill.
Deputy, we wish to deal with amendments Nos. 8 and 9.
I presume that discomfort gave rise to the point of order and the call for a quorum to disrupt me from saying what I have to say. We as a country have a duty to combat international terrorism. This Bill may help us in that cause. It could have or may have a particular application in regard to the Colombia three if the current extradition proceedings, bearing in mind that we do not have an extradition treaty or otherwise, are not successful. In that event I will be asking the Government to consult with the Government of Colombia as to how this Bill, when enacted, can provide the solution to dealing with those particular people. That could involve having Colombia accede to the relevant Council of Europe convention and adopting the process itself. The Bill and the protocol provide that the provisions will apply to sentences imposed either before or after the entry into force of the Act. This may represent the first useful function to which the Bill will be put when it is enacted into law.
The Minister did not refer to the points I made. I stated that section 9 did not cover the political offence exception. Given that the legislation is to be retrospective and the political offence exception abolished, someone who could not have been pursued under the previous legislation could now be pursued even though the offence could have happened 20 years ago and was not an offence at that time. Section 9 does not provide any protection or safeguards in cases where extradition would be refused now.
I also asked the Minister to give some indication of the number of countries that have signed up to the European arrest warrant. I have heard that anomalies exist in the manner in which countries have signed. Some of them have made it retrospective and others have not done so. Considerable difficulty is likely to arise and may have already arisen in some cases in trying to execute the European arrest warrant.
I refer to the application of this legislation to the Colombia three. At the time the Tánaiste gave the impression that the Government was doing something about the issue. She was the only person available at the time because the Minister for Justice, Equality and Law Reform was on holidays. She pulled this rabbit out of a hat even though under the provisions of section 4 regarding the additional protocol and the Schengen Convention, it seems clear that this legislation cannot be used in that respect. It would be difficult to see how Colombia could sign the convention. It would be very difficult for the Minister for Foreign Affairs to agree to have Colombia as a designated country given its appalling track record on human rights. It was a red herring. The Tánaiste gave the impression the Government was doing something when it was doing nothing and had no intention of doing anything.
Amendment put and declared lost.
I move amendment No. 9:
In page 4, line 20, after "passing" to insert the following:
"unless the High Court on the application of the sentenced person concerned determines that it would be inappropriate in all the circumstances, including evidence as to the commission of the offence in the designated country and whether the sentenced person has been afforded an effective right of appeal and review of sentence in the relevant designated country, for this Act to apply to that person".
Amendment put and declared lost.
Amendment No. 10 has been ruled out of order because it does not arise from Committee proceedings.
Amendments Nos. 10 and 11 not moved.
Amendments Nos. 12 and 14 are related and may be discussed together by agreement.
I move amendment No. 12:
In page 5, between lines 18 and 19, to insert the following:
"(2) The Minister shall not make a request for execution of a sentence where there are reasonable grounds to believe that the sentenced person will be exposed to conditions constituting torture or inhumane or degrading treatment or punishment.".
Amendment No. 14, which is related to this amendment, is self-explanatory. If my amendment is accepted the Minister could not make a request under subsection (1) unless "there are reasonable grounds to believe that the terms and conditions of detention in the designated country would be compatible with Article 3 of the European Convention on Human Rights".
Article 3 of the European Convention on Human Rights places obligations on state parties to protect against foreseeable violations of human rights outside the territory of the state; even beyond Europe it guarantees protection from torture or to inhuman or degrading treatment or punishment. It imposes an obligation on national authorities, in this case the Minister, to make an assessment of the likely consequences of any transfer to a country of origin.
Many of the issues that have been raised under Article 3 of the European Convention on Human Rights, such as the danger of persecution by state authorities or non-state actors, are not engaged. However, the possibility remains that in serving a sentence in a designated country the person concerned faces a real risk of being subjected to torture, inhuman or degrading treatment owing to the conditions of detention in the receiving state. Therefore, obligations are placed on the Irish authorities in particular to prevent foreseeable future torture or inhuman or degrading treatment or punishment that may still arise.
The conditions of detention of some of the countries that have signed up to the additional protocol to the Convention on the Transfer of Sentenced Persons have been deplored by respected human rights organisations such as Amnesty International. The Committee on the Prevention of Torture has commented for instance on the condition of prisons in Georgia, which is a protocol country in which the Minister could authorise an Irish citizen to be detained and to serve a sentence.
The Human Rights Commission made a submission on the Bill in June 2004 in which it stated:
The threshold of what constitutes torture or inhuman or degrading treatment or punishment has been developed by the European Court of Human Rights and also by the European Committee on the Prevention of Torture (CPT). The standards set for acceptable conditions of detention by the CPT encompass issues such as overcrowding, sanitation facilities, recreational facilities, visiting regimes, access to medical services and mechanisms for the investigation of complaints within the prison service.
It may be argued with regard to a number of designated countries that the conditions of detention under one or more of these headings might be so deficient as to present a real risk that a person imprisoned in that country would be subjected to degrading treatment, in contravention of Article 3 of the European Convention on Human Rights.
That is the logic behind the amendment. It does not restrict the Minister or the activities that will occur under the Bill other than to protect Irish citizens or those convicted in Irish courts who have left our shores without serving their sentences here. The amendment aims to protect them against torture within the prison systems of the designated countries.
This is a good Bill because it allows for persons in Irish prisons to serve out their sentence in their home country and, vice versa, it allows Irish citizens in other countries to return here. That, in itself, is a good thing.
One of my party's principal concerns about the Bill is that it comes down to the Minister's oversight as to whether a transfer can or should take place. Over the last year or more we have got to know our current Minister for Justice, Equality and Law Reform better than we did heretofore. There are concerns about his conduct, particularly regarding the transfer of people from this country. I refer in particular to the repatriation agreement with Nigeria, where the Minister is allowing people to be deported to a country where the Government has not even ratified the agreement that was made between the two countries. Nigeria is a country where torture takes place on a daily basis, where people are killed for no reason, where there are enormous concerns about how the Government and its police force operates. Such concerns are highlighted every year in Amnesty International reports. I use that example to show that Deputy McDowell is not showing due consideration of the conditions that a person who has been living in Ireland for many years is subjected to when he or she is sent back to Nigeria.
We must have better safeguards stitched into the Bill to ensure that a Minister like Deputy McDowell, or any other Minister, gives adequate consideration to the conditions that a prisoner will be subjected to in the country to which he or she is sent. It is imperative that the Bill takes due cognisance of that fact. To that end, I proposed amendment No. 12. If there are reasonable grounds for believing that the sentenced person may be exposed to conditions constituting torture or inhumane or degrading treatment or punishment, then we must think again about deporting that person.
There are many problematic countries in the world that the Irish Government has been cosying up to, whether it be the Chinese regime that has an appalling human rights record, or the United States, where prisoners are being held without due regard to the Geneva Convention. It is important that Ireland holds its head up high, internationally, with regard to human rights. It is also important that when we pass legislation allowing people from Ireland to be sent somewhere else, that we give due concern to that country's human rights record and that the Minister, this House and the Government examines it carefully before whisking somebody onto an aeroplane. That is why I propose this amendment.
I wish to clarify a point before proceeding. We dealt with amendment No. 5 earlier, in the name of Deputies Jim O'Keeffe and Gerard Murphy. The disposing of that amendment was put to the House. The question was declared defeated with the amendment being lost.
I thank the Chairman for the opportunity to speak on this amendment. I also strongly support amendment No. 14 and commend Deputy Cuffe for proposing amendment No. 12.
This discussion is about human rights and respect for the human rights of prisoners, citizens and people generally. Nowadays it is not very easy to defend or take a stand on human rights. At times it is unfashionable to do so and there is often a rush to judgement on particular cases. It is important in the course of this debate, while dealing with these amendments, that we understand and take cognisance of Article 3 of the European Convention on Human Rights. We must respect the integrity of human rights issues.
We have an obligation, as Members of the Oireachtas, to challenge countries that do not have a good human rights record. It is important that we raise such matters in the House and are not afraid to speak out, even if we are talking about friends or neighbours. If countries have a disastrous record on human rights, it is up to us to defend the interests of our citizens. This point was brought into sharp focus with the recent kidnapping of Mr. Rory Carroll in Iraq. In that situation, the entire country united and the Minister and Government responded, in the strongest possible way, to protect and defend his rights. We also have a duty to defend and protect our citizens in other situations.
While speaking about amendment No. 14, I also wish to mention again the case of Mr. Christy McGrath, the Irish jockey who is in jail in England at present. His case is an important one and I wish to commend and thank my colleagues, from various political parties, who are supporting him. It is important that we ensure that Mr. McGrath receives the full support of Members of the Oireachtas to bring this miscarriage of justice to an end. I also encourage people to go to England and support his case.
When one is talking about human rights and the rights of prisoners, one must not lose sight of the rights of victims. It is vital that the voices of the victims are heard. The Barron report on the Dublin and Monaghan bombings makes this point. The victims of that atrocity are constantly pleading with the Government and the British Prime Minister, Mr. Blair, to co-operate with the Barron inquiry. Their rights need to be protected under international law but at the moment they are not receiving such protection. I urge the Taoiseach and all Cabinet members to ensure that the victims of the Dublin and Monaghan bombings are given strong support and to demand co-operation from the British Government.
Some countries seem to believe they are above international law and are not required to implement procedures and supports to uphold human rights. Amendment No. 12 asserts that "The Minister shall not make a request for execution of a sentence where there are reasonable grounds to believe that the sentenced person will be exposed to conditions constituting torture or inhumane or degrading treatment or punishment". Article 3 of the European Convention on Human Rights is referred to in amendment No. 14. The provisions of these amendments are essential if there are any problems for a sentenced person or if there is any question that he or she may be subjected to torture or inhumane or degrading treatment or punishment. It is not acceptable for countries to be involved in such activities and the onus is on us, as Members of the Oireachtas, regardless of what we may think of what the sentenced person is alleged to have done, to defend his or her interests and human rights.
I welcome the opportunity to debate these amendments because such debate is very important. I remind Members that respect for human rights must always be at the top of the political agenda, particularly in times of war, crisis or violent international acts. We must constantly be vigilant. I pay tribute to the people around the world, including in this country, who put their necks on the block for human rights. I am thinking of Pat Finucane, Rosemary Nelson and all the lawyers I met when I visited Colombia whose families were shot at and murdered because they were defending the human rights of trade unionists, community groups, prisoners etc. This is why I support amendment No. 14.
I support both amendments. The amendment formulated by Deputy Ó Snodaigh encapsulates the issue more effectively. It reads, "there are reasonable grounds to believe that the terms and conditions of detention in the designated country would be compatible with Article 3 of the European Convention on Human Rights". This covers all the areas relating to torture, inhumane treatment, degrading treatment or punishment. The problem with the legislation is that there is no section which requires proofing for human rights in regard to designated countries. It is not provided for in section 9, even though safeguards are included. It should be stated that Article 3 of the European Convention on Human Rights should be incorporated into the legislation.
We still do not know if countries have been designated for the purposes of the legislation. Perhaps the Minister will give us an idea whether the Minister for Foreign Affairs has compiled a list of countries that he has already designated or intends to designate, what criteria he uses or if he uses any criteria other than that specified in section 4. It simply states that he may designate a country that has ratified the additional protocol and that has ratified or acceded to the Schengen Agreement. Ireland has not acceded to that agreement, even though we can opt in or out of it.
What precisely is the status for designation? Are there criteria in regard to the incorporation of human rights under the European Convention on Human Rights or international conventions on human rights? Before a country is designated for the purpose of someone serving a sentence, the Human Rights Commission should be asked to proof that country in terms of the existence and operation of human rights and no person sentenced should receive treatment that could amount to a breach of the European Convention on Human Rights or international conventions on human rights. This requirement should be incorporated into the legislation. It should not be left in some hazy situation where the Minister for Justice, Equality and Law Reform or the Minister for Foreign Affairs may or may not take on board in a discretionary fashion requirements of this nature. The requirement should be stated in the legislation.
There are huge variations in prison conditions. We are talking about Irish citizens being imprisoned and the sentence being executed in a designated country. We do not lead the field in respect of the conditions in some Irish prisons. We have been condemned in a number of international forums, including Amnesty International, for the slopping-out process. While the Minister promised a few super-prisons to deal with the issue in the distant future, nothing is being done about it now and, as a result, 1,200 prisoners are taking a case to the European Court of Human Rights. How do we stand as a receiving country in terms of designated countries? Countries in Europe might well ask is Ireland a place in which they could allow their citizens to be imprisoned. There is gross overcrowding in Cork Prison where the imprisonment ratio is double what it should be.
There is no reference to unusual conditions. For example, there was hard labour in this country, which was abolished, but it is part of sentences in many other countries. There is nothing in the legislation that allows the High Court to specify that unusual conditions of this nature could not apply to someone serving a sentence if it is executed under the terms in this legislation for the transfer of execution of a sentence.
Many issues need to be examined. No one opposes the principle of the legislation because people cannot be allowed to flee justice. We cannot have fugitives from justice whereby people who have committed a crime are allowed to flee to another country and escape. These people must be either brought back or they must serve their sentence in the other country. The legislation includes a facility to enable the sentence to be served in another country. It behoves us to proof the legislation in terms of human rights, otherwise we will not do our citizens justice. We will do them an injustice instead.
I hope the Minister will give a commitment, even if it is not written into the legislation, that in so far as countries are being determined for designation, he will refer them to the Human Rights Commission which has a specific statutory role in proofing for human rights. He should refer any potential designate countries to the commission to determine whether they comply with the principles of amendments Nos. 12 and 14 relating to torture, inhumane or degrading treatment, and whether Article 3 of the European Convention on Human Rights is respected.
While the legislation is desirable, good and well intentioned, it could result in considerable infringement of civil liberties while the only intention is the infringement of one right, namely, the right to liberty. In other words, the individual would be arrested in the designated country and imprisoned. This should be the only infringement and those involved should otherwise serve their sentence in a normal and humane fashion.
The legislation does not provide sufficient safeguards or conditions to ensure this will happen unless we provide for human rights proofing either within the legislation directly or by specifying that any designated country would have to pass the test by being presented to the Human Rights Commission. It would then give the nod to the Minister for Justice, Equality and Law Reform and the Minister for Foreign Affairs that the country, to the best of its ability, is in accordance with international best practice on human rights and the European Convention on Human Rights. This is something which would be extremely desirable on our part.
I support Deputy Costello on that issue. When we deal with the Minister for Justice, Equality and Law Reform and the Minister for Foreign Affairs, we deal with Ministers who have different opinions and come from different political backgrounds. That said the Bill will still stand which means there will be different interpretations of how justice is administered in different jurisdictions around the world. It was suggested that the Human Rights Commission should advise the Minister and that he, in turn, should take note of what the Human Rights Commission says about whether a country should be a designated one. If the legislation is not transparent, it will undermine the basis for the Bill, which otherwise is welcome and generally acceptable. It is important that a lay person should clearly understand that a mechanism is available to ensure nobody is deprived of his or her human rights at the whim of the Minister of the day.
The amendments propose that the Minister should not make a request for the execution of a sentence where there are reasonable grounds for believing the sentenced person will be liable to torture or inhuman or degrading treatment. The additional protocol is a Council of Europe instrument. Support for human rights is a core value which underpins the Council of Europe. The Council is committed to the principles of respect for universal and indivisible human rights, fundamental freedoms and the rule of law. Member states of the Council are obliged to observe the fundamental rights and principles covered by the convention for the protection of human rights and fundamental freedoms — the European Convention on Human Rights, ECHR.
A non-member state of the Council of Europe is first evaluated by the Council before being allowed to accede to its instruments. In addition, Ireland will operate the arrangements under this legislation where the other party is not only a member of the Council's protocol but also has been designated by the Minister for Foreign Affairs following an assessment of the state's suitability.
Deputy Costello asked about the number of designations. There have been none so far, they must await ratification of the protocol, but they will be made by the Minister for Foreign Affairs. The designation can be revoked if conditions deteriorate in the relevant state under section 9(4)(a). The Deputy also referred to hard labour and penal servitude. Under the same subsection, such conditions will not be allowed if the sentence is served in Ireland. That is stated clearly in the legislation.
But if the sentence is served elsewhere, such punishments can be allowed.
I think so, yes.
The sentence, therefore, could be served in a different format. One could be subject to hard labour, which is a different sentence. For example, one could be sent to Siberia.
The Bill is about bringing prisoners back to Ireland to serve their sentences.
It is also about serving sentences in other countries.
Deputy Cuffe referred to his improved knowledge of the Minister for Justice, Equality and Law Reform and his concern about oversight under the legislation. The High Court, not the Minister, will have the oversight role. The section provides for full adherence to the ECHR and the High Court is required to ensure ECHR standards apply. There is no reason, therefore, to make the amendment and I do not accept it.
It is regrettable that the Minister of State is not willing to accept the amendment, even though he has referred to section 9. The section should be brought forward to make it clear at an early stage in the Bill that full protection will be provided and the Minister for Justice, Equality and Law Reform must take account of the ECHR to ensure the State is fully compliant with the convention.
The State is obliged to consider all likely consequences of a request, including the safeguards I seek to provide in the legislation. The Irish Human Rights Commission suggested an explicit mention should be made of the ECHR in this section to ensure the Minister of the day cannot ignore his or her obligations under the convention and sentenced persons can enjoy full protection. If the conditions of detention in the designated country do not comply with the ECHR and are condemned, an alternative, the European arrest warrant, is open to the Irish authorities if they are seeking to ensure a detainee serves his or her sentence. They can pursue the case in that fashion.
We had a spat earlier regarding Colombia. That state would never satisfy the conditions and safeguards provided for in the legislation or the European arrest warrant and, therefore, that matter does not arise. If my amendment were accepted, the detention of the three men in Colombia would be designated torture as they were permanently under threat. Their food had to be brought into the prison because of the danger of poisoning within and weapons were used within the jail by right wing groups. Those men were in grave danger, yet Fine Gael would seek to make them serve an unjust sentence. Fine Gael would probably have extradited Michael Collins for his deeds had the legislation been in place back then.
He never left the country; he was part of the empire at the time.
We have little control over the Judiciary and the High Court, as has been highlighted by an ongoing case involving a particular judge. Extraditions from the European Union to Iran took place earlier this year, even though a teenager was executed there because he was gay. Extraditions are being granted by the EU but I am not convinced there are sufficient controls within the Union in this regard. Perhaps a triple lock is needed because sufficient safeguards should be in place for the transfer of a detainee to another jurisdiction.
As Deputy Finian McGrath said, human rights must be safeguarded. There are different ways to do so, whether that is through my amendment, the ECHR or the Irish Human Right Commission. Protections must be copper-fastened in the legislation. The Bill is unusual in so far as it permits the transfer to a detainee overseas. The amendment is needed and I will press it.
Section 9 does not state that ECHR standards apply in regard to the functions of the High Court. That is not expressly stated in the legislation and, therefore, I would like the Minister of State to outline where it is covered. He stated section 9 covers the ECHR in the operation of the High Court. I do not see how it does. Even if did, it would be desirable that this should be expressly stated in the legislation so that the High Court would have cognisance of it when making decisions on the transfer of sentences.
The problem centres on designated countries that are suitable and appropriate for Irish citizens to serve their sentences. Providing appropriate conditions in the State is an issue but it is important to ensure countries with which we reciprocate under this legislation have the necessary safeguards in place and provide the appropriate conditions in which people can serve their sentences. It is no skin off the ministerial nose to do so. It would ensure this legislation would be consistent with human rights principles. The fallback position I mentioned, to which the Minister has not referred, is that we should present prospective designated countries to the Irish Human Rights Commission. We should seek its opinion on whether the countries are in accordance with human rights requirements. I ask the Minister to address this point.
Fine Gael supports the input of the Irish Human Rights Commission to decide the countries to be designated. This legislation will outlive many Ministers for Foreign Affairs and these could come from different backgrounds and political perspectives. Disagreement could occur on designated countries. Deputy Ó Snodaigh stated that Colombia would never be a designated country.
Deputy Ó Snodaigh would be a good judge.
I would be a better judge than Deputy Jim O'Keeffe.
We will take no lectures on human rights from Sinn Féin.
If there was a revolutionary change in government in Colombia, Sinn Féin might regard the administration as acceptable. A Sinn Féin Minister for Foreign Affairs, God forbid, might then consider Colombia a designated country.
Deputy Gerard Murphy is not going to be Minister for Foreign Affairs.
Right-wing elements may consider designating a country that believed in right-wing ideology. It is important to have an independent monitoring system and the Irish Human Rights Commission is the body to undertake this task.
I refer Deputy Costello to section 9(2):
(f) circumstances exist whereby—
(i) had the person's surrender been sought pursuant to a European arrest warrant, the surrender of the person would not be prohibited under Part 3 (other than section 38(1)) of the European Arrest Warrant Act 2003, or
(ii) had the person's extradition been sought, his or her extradition would not be prohibited under the Extradition Acts 1965 to 2001 (other than section 10(1) or 10(1A) (inserted by section 11(a) of the Extradition (European Union Conventions) Act 2001) of the Extradition Act 1965).
In those circumstances we should use the European arrest warrant if there is any doubt.
Ireland will not transfer anyone under measures introduced in this Bill. The Bill relates to a person that may have fled of free will to his or her state. The only possible transfer would be a return to Ireland. Transfer only occurs under extradition and is not applicable under this Bill.
The option exists.
The Siberian hypothesis raised by Deputy Costello will not arise under this Bill.
It could. Should designated countries be referred to the Human Rights Commission?
That matter has already been addressed in a previous response.
It has not. Will the Minister allow the Irish Human Rights Commission to examine countries before they are designated?
Deputy Cuffe has the right of reply, as he moved amendment No. 12.
I accept the clarification on where the sentence will be served. The sentence will be served in that foreign country and the argument I made still stands. We must be clear that the country has a good record on human rights. The reply does not alter the amendment I proposed.
Amendment put.
The Dáil divided: Tá, 38; Níl, 44.
Tá
- Boyle, Dan.
- Breen, Pat.
- Broughan, Thomas P.
- Bruton, Richard.
- Connaughton, Paul.
- Costello, Joe.
- Crawford, Seymour.
- Crowe, Seán.
- Cuffe, Ciarán.
- Deasy, John.
- Deenihan, Jimmy.
- Ferris, Martin.
- Gilmore, Éamon.
- Gormley, John.
- Higgins, Michael D.
- Howlin, Brendan.
- Lynch, Kathleen.
- McEntee, Shane.
- McGinley, Dinny.
- McGrath, Finian.
- McManus, Liz.
- Morgan, Arthur.
- Murphy, Catherine.
- Murphy, Gerard.
- Neville, Dan.
- Ó Caoláin, Caoimhghín.
- Ó Snodaigh, Aengus.
- O’Dowd, Fergus.
- O’Keeffe, Jim.
- O’Sullivan, Jan.
- Penrose, Willie.
- Rabbitte, Pat.
- Shortall, Róisín.
- Stagg, Emmet.
- Stanton, David.
- Timmins, Billy.
- Twomey, Liam.
- Upton, Mary.
Níl
- Ahern, Noel.
- Andrews, Barry.
- Ardagh, Seán.
- Blaney, Niall.
- Brady, Johnny.
- Brennan, Séamus.
- Browne, John.
- Callanan, Joe.
- Cassidy, Donie.
- Cregan, John.
- de Valera, Síle.
- Dempsey, Tony.
- Dennehy, John.
- Devins, Jimmy.
- Fahey, Frank.
- Gallagher, Pat The Cope.
- Glennon, Jim.
- Haughey, Seán.
- Hoctor, Máire.
- Jacob, Joe.
- Keaveney, Cecilia.
- Kelleher, Billy.
- Kelly, Peter.
- Kirk, Séamus.
- McDowell, Michael.
- McEllistrim, Thomas.
- McGuinness, John.
- Moloney, John.
- Moynihan, Michael.
- Nolan, M.J.
- Ó Cuív, Éamon.
- Ó Fearghaíl, Seán.
- O’Connor, Charlie.
- O’Donnell, Liz.
- O’Keeffe, Ned.
- O’Malley, Fiona.
- O’Malley, Tim.
- Parlon, Tom.
- Power, Peter.
- Roche, Dick.
- Sexton, Mae.
- Smith, Brendan.
- Wallace, Dan.
- Wilkinson, Ollie.
Tellers: Tá, Deputies Boyle and Neville; Níl, Deputies Browne and Kelleher.
Amendment declared lost.
Amendment No. 13 not moved.
I move amendmentNo. 14:
In page 5, between lines 20 and 21, to insert the following:
"(a) there are reasonable grounds to believe that the terms and conditions of detention in the designated country would be compatible with Article 3 of the European Convention on Human Rights,”.
Amendment put.
The Dáil divided: Tá, 24; Níl, 44.
Tá
- Boyle, Dan.
- Broughan, Thomas P.
- Costello, Joe.
- Crowe, Seán.
- Cuffe, Ciarán.
- Ferris, Martin.
- Gilmore, Éamon.
- Gormley, John.
- Howlin, Brendan.
- Lynch, Kathleen.
- McEntee, Shane.
- McGrath, Finian.
- McHugh, Paddy.
- McManus, Liz.
- Morgan, Arthur.
- Murphy, Catherine.
- Ó Caoláin, Caoimhghín.
- Ó Snodaigh, Aengus.
- O’Sullivan, Jan.
- Penrose, Willie.
- Rabbitte, Pat.
- Shortall, Róisín.
- Stagg, Emmet.
- Upton, Mary.
Níl
- Ahern, Noel.
- Andrews, Barry.
- Ardagh, Seán.
- Blaney, Niall.
- Brady, Johnny.
- Brennan, Séamus.
- Browne, John.
- Callanan, Joe.
- Carty, John.
- Cassidy, Donie.
- Cregan, John.
- de Valera, Síle.
- Dempsey, Tony.
- Dennehy, John.
- Devins, Jimmy.
- Fahey, Frank.
- Gallagher, Pat The Cope.
- Haughey, Seán.
- Hoctor, Máire.
- Jacob, Joe.
- Keaveney, Cecilia.
- Kelleher, Billy.
- Kelly, Peter.
- Kirk, Séamus.
- McDowell, Michael.
- McEllistrim, Thomas.
- McGuinness, John.
- Moloney, John.
- Moynihan, Michael.
- Nolan, M. J.
- Ó Cuív, Éamon.
- Ó Fearghaíl, Seán.
- O’Connor, Charlie.
- O’Donnell, Liz.
- O’Keeffe, Ned.
- O’Malley, Fiona.
- O’Malley, Tim.
- Parlon, Tom.
- Power, Peter.
- Roche, Dick.
- Sexton, Mae.
- Smith, Brendan.
- Wallace, Dan.
- Wilkinson, Ollie.
Tellers: Tá, Deputies Ó Snodaigh and Stagg; Níl, Deputies Browne and Kelleher.
Amendment declared lost.
Amendments Nos. 15 and 16 are out of order. Amendment No. 17 is in the name of Deputy Jim O'Keeffe but I will ask him to move the adjournment because we only have two or three minutes remaining.
I so move.
We will commence with amendment No. 17 when the debate resumes.
Debate adjourned.