Draft Council Decision on Surrender Procedures: Motion.

I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, to discuss the motion referred to the joint committee by both Houses. The motion relates to a draft Council decision on the signing of an agreement between the European Union and Iceland and Norway on surrender procedures. Following an initial presentation from the Minister, members may make their contributions.

I apologise to the joint committee for being a few moments late. I have circulated a draft of my speech. Some of it is quite detailed. Unless the committee wants me to do so, I will not read all of it.

Perhaps the Minister would go through the main points.

I thank members for allowing me to bring before the joint committee for consideration this EU proposal for an agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the member states of the European Union and Iceland and Norway. This proposal is before the committee on foot of motions in line with the advice of the Office of the Attorney General on seeking the prior approval of the Houses of the Oireachtas on EU-related instruments. The proposed motion was referred to the committee by Dáil Éireann on 1 June and Seanad Éireann on 31 May. The proposed measure was laid before the Houses on 12 May.

I will now turn to the purpose of the measure. The intention is to apply certain provisions in the field of judicial co-operation in criminal matters on the basis of Articles 24 and 38 of the treaty of the European Union with a view to improving judicial co-operation between member states of the Union and Norway and Iceland. The Council decision of 10 July 2001 authorised the Presidency of the Council to negotiate a draft surrender agreement between these two countries and the member states and also to negotiate an agreement on mutual assistance in criminal matters. The Justice and Home Affairs Council agreed the mandate for these negotiations in December 2002 and a Council decision on the mutual assistance agreement was adopted in December 2003. Negotiations have continued in regard to the draft surrender agreement now before the committee. At its meeting on 11 October 2005, the Government authorised me to indicate Ireland's acceptance of the text of the agreement, as drafted, and authorised me to instruct the Presidency to seek the agreement of Norway and Iceland on the text and finalise drafting.

The main concern for Ireland in regard to the proposed agreement with Iceland and Norway was to maintain the dual criminality requirement, that is, that the act or omission for which surrender is sought is an offence in both the requesting and requested states. In addition, we were also anxious to retain some form of the political offence exemption and these concerns have been addressed in the draft agreement. What is being proposed is a surrender arrangement to replace corresponding provisions in a number of conventions governing existing extradition arrangements at EU level. The member states and Norway and Iceland are parties to a number of conventions in the field of extradition. Norway and Iceland have expressed the wish to enter into an agreement with the member states of the European Union enabling them to expedite arrangements for the handing over of suspects and convicted persons through the implementation of a surrender procedure with the member states. As Norway and Iceland are not member states of the European Union, the European arrest warrant, EAW, arrangement does not apply. The proposed surrender arrangement is based to a significant extent on EAW operational procedure. It will be primarily a judicial arrangement with very little role for the Executive, whereby the requested-executing member state will recognise a request for surrender of a person on foot of an arrest warrant from Norway or Iceland and make an arrest on foot of it. The Office of the Attorney General has indicated that such a system is acceptable.

The terms of the agreement are set out in the succeeding paragraphs. If there are particular terms in the agreement that members of the committee want to discuss, I will be happy to do so.

Presumably, this is a standard arrangement such as we have with other non-EU member states. Will the Minister expand slightly on Article 6 which relates to the political offences exception? It states non-refusal is limited to certain offences under the European Convention on the Suppression of Terrorism. What are the offences encompassed by Article 6?

On the point made by the Deputy that this is a standard arrangement, it is not. This is a unique arrangement in that it is in some respects equivalent to our old arrangement with the United Kingdom under extradition law in that it is a system of judicial recognition of warrants.

Is it an EEA arrangement?

Yes, with two countries.

Is it the same arrangement within the European Union expanded to EEA members?

Yes. It is not a framework decision provision. It is a hybrid between extradition law and the European arrest warrant — a rendition, if I may use that phrase.

The Minister should not use it.

There is a distinction between rendition and extradition. This is a hybrid between the two and a closer relative of rendition than extradition.

Will the Minister explain that?

Rendition is what happened between the United Kingdom and Ireland under the relevant part of the Extradition Act 1965.

People were shuttled up to the Border and handed over.

There was a warrant from magistrates in England and it was put through our courts system. That is how matters started in 1965, after which they became complicated. We did not have a formal extradition agreement with the United Kingdom at the time. We had an arrangement which flowed on from the fact that courts in the old United Kingdom which included Ireland recognised each other's warrants. We tried to replicate that provision. This is a surrender agreement and the form of the document used is a very close analogue of the European arrest warrant. It is effectively based on the same material.

The Minister might rehearse for us the role of the courts here in regard to it.

We have transposed the framework decision for the European arrest warrant into Irish law by giving our courts a very strong role in ensuring the warrant is not abused in any way. They must be satisfied that surrender on foot of a European arrest warrant would be in conformity with human rights provisions. They must also scrutinise the warrant to ensure it complies with Irish law. We made a strong declaration in 2001 or 2002 when we agreed to the making of the framework decision that we would never agree to rendition on the warrants or surrender on the warrants for the purpose of investigation. It would have to be for the purpose of a trial. The High Court will be the judicial authority with responsibility for the execution of the surrender warrants received by Ireland from Norway or Iceland. Warrants both inwards and outwards will be submitted by the central authority which is the Department of Justice, Equality and Law Reform. Arrest warrants in relation to surrender may be in their original form or sent by fax or electronically. In due course electronic transmission may be via the Schengen information system, known as SIS. Following receipt, an arrest warrant will be brought to the High Court for endorsement, which will have the effect of authorising the arrest of the named person. The power of arrest will be provided for in domestic legislation. A person who has been arrested will be brought before the High Court as soon as possible after his or her arrest and the court may remand him or her in custody or on bail and will fix a date for the full hearing of the application. In that regard, as in the case of the European arrest warrant, a person has the right to consent to a surrender at that stage or at a later stage and a full hearing will not be required if the court is satisfied that the person has given his or her consent voluntarily and in full knowledge of the consequences.

I advise the committee that we will need separate implementing legislation for this purpose.

Will the Minister explain that?

The European arrest warrant stands on its own — this is not the European arrest warrant — nor is it extradition of the classic kind provided for in the 1965 Act. We, therefore, need a Bill to amend and extend the European arrest warrant provisions so as to capture this form of warrant.

I have three brief supplementary questions. First, in regard to the Schengen information system, how are we a party to it as a non-party to the Schengen arrangement? Second, is it envisaged that any countries, other than Norway and Iceland, will have the type of working relationship captured by the promised legislation? Third, will the Minister deal with the issue of the political offences exception?

There are aspects of the Schengen arrangements to which we have already signed up. The Schengen information system is one of these. The exchange of information does not have to compromise us in our reservations on the broader Schengen system which involves hot pursuit, the absence of border controls and so on. We have always taken the view that we should sign up to such aspects of the Schengen arrangements as are consistent with our interests. We have signed up to participation in the Schengen information system which casts certain obligations us to have information in an accessible form. However, that will not be operational until 2007 at the earliest. A separate SIS computer facility is being installed in Garda headquarters.

What does SIS stand for?

Schengen information system.

Will countries other than Norway and Iceland be covered by the legislation?

I am unsure whether Switzerland wants to sign up to the agreement.

Switzerland and Liechtenstein are the remaining EEA countries.

Norway and Iceland are the only two that leap to mind.

I ask the Minister to clarify the political offences exception.

The political offences exception is provided for in Article 6. Norway and Iceland and the European Union may make a declaration that paragraph 1 will be applied only in respect of offences under Articles 1, 2 or 3, conspiracy and association, of the European Convention on the Suppression of Terrorism and other provisions of the framework decision on combating terrorism. These options are also available to Ireland but we have not decided whether we are willing to declare that the political offences exception never applies, as we have done in respect of our agreement with EU member states. We do not have the same control over Norway and Iceland because they are sovereign independent states and not bound by EU law. This measure provides scope to narrow the exception for political offences to terrorist type activities; non-terrorist political offences could be exempted at the option or discretion of member states.

Will declarations be made by member states or will they be made jointly by the European Union?

The European Union will enter the agreement with Iceland and Norway on behalf of member states. However, it can be requested to make this declaration at the behest of an individual member state.

I am confused as to what is to be achieved. Given that the agreement will amend primary legislation, are we pre-empting that legislation? What stage have we reached in the process?

The European Union, the Republic of Iceland and the Kingdom of Norway will arrive at an agreement which we will be bound to implement in Irish law, subject to the requirements of European law and our entitlement to make up our own mind on the political offences exception.

Will that constrain the Oireachtas in its ability to amend legislation in this area?

Yes, which is why the consent of the Oireachtas is being sought in advance. The agreement will restrict us in terms of the surrender arrangements we can agree with Norway and Iceland. The two Houses are considering this issue because there are implications for Ireland's dealings with the states in question. We will effectively be tied into a multi-party agreement expressed through the European Union.

Is there a formal motion?

A motion seeking approval has been put before the Houses and referred to this committee.

Where is it? We have been supplied with the Council directive and the Minister's briefing notes but I do not see the motion.

A motion has been tabled to approve the draft Council decision on the agreement. It was referred to this committee by the Dáil on 1 June and by the Seanad on 31 May. The proposed measures were laid before the Houses on 12 May.

In the light of the criticisms constantly made about rubber stamping motions in the Dáil, will we recommend that Members who have concerns about the measures should be permitted to speak when the motion is being adopted?

The committee has not been informed of any problems Members may have with the agreement. They were more than welcome to attend the committee to express their concerns.

When the report of the committee is sent to the Houses, it will be a matter for the Whips to decide whether a debate should be held.

The last time the committee agreed that there should be no further debate, the matter in question was debated for 45 minutes.

To which debate is the Chairman referring?

It concerned a Europe-wide matter.

That is the point I am making. We cannot agree in a manner that would bind either House. Members are entitled to make what they want of our reports.

The procedure by which the Dáil and Seanad accept committee reports without debate is inadequate.

There may be occasions when the Dáil is happy with the motions brought before it.

That is probably true in the vast majority of cases but debate should not be precluded.

The agreement will restrict us from implementing further legislation.

That is undoubtedly true. Whenever we discuss a framework decision, even one which has been unanimously adopted by the Council, Ireland is restricted in its implementation. That is part of the European Union's legal procedures. It was much worse when Ministers felt free to sign up to agreements and the Irish people only learned about them in the newspapers. Prior authorisation is now required.

The Minister might say they were the good old days.

Does Deputy Murphy have concerns about many of the articles?

The Dáil constantly encounters problems with regard to rubber stamping motions referred by it to this committee. Normally, if motions do not impinge on future legislation or restrict the ability of the Oireachtas to pass or amend legislation, they are not that important but in this instance, the motion deserves further scrutiny and debate.

The Deputy has expressed his opinion. Does any other issue arise for discussion?

I am happy with the motion.

That concludes our discussion of this subject.

We will reflect on the Minister's comment.

Is it agreed that there be no further debate on the matter in Dáil Éireann and Seanad Éireann?

That is a matter for the Whips. I agree with the Minister.

We should not make a recommendation on the foreclosure of this matter in response to a comment by a Member who is not party to this committee.

The proposal must be agreed or not agreed.

What is the question?

The question is that there be no further debate on the matter in Dáil Éireann and Seanad Éireann. Is that agreed?

We will not vote on the issue. The Chairman will not divide us on it.

I hope not. This is a matter of protocol of the Houses. If it is to be changed, the Whips must agree to it.

Perhaps the Chairman would put the question. We could then have a voice vote, divide the committee and allow Deputies to come to their view on it.

To save the committee problems, we could ask the clerk to raise the matter with the Whips.

Is there a standard form of words that must be put?

May we go into private session to discuss the matter?

The joint committee went into private session at 3.51 p.m. and resumed in public session at 3.54 p.m.

Is it agreed that there be no further debate on the matter in Dáil Éireann and Seanad Éireann? Agreed. Is the draft report agreed, subject to insertion of details of attendance and contributors to the discussion, as well as the comment of Deputy Howlin? Agreed.

It alerts Members to the requirement.

It draws the attention of Members of the Houses to the fact that the agreement will bind Ireland to make legislative provision for its contents.

That is fine.

I thank the Minister for attending. The select committee will meet tomorrow to discuss the Criminal Justice Bill 2004.