I am grateful that the House has been able to create space in a very busy Seanad schedule, to facilitate debate on this very important motion.
Everybody here and every citizen we represent knows by now that the appalling atrocities committed in the United States on 11 September last have shocked the world into the realisation that internationally organised terrorism threatens us all. Before our eyes we saw the evil of terrorism strike, with devastating effect, at the heart of the most powerful nation on earth. The impact of this shock has been enormous. Those who suffered most, obviously, are the families and friends of the dead and injured – many of them Irish or with Irish connections. Apart from that, global business confidence has been shaken, international travel has been very significantly curtailed and, as we all know, a war is being waged in Afghanistan as a direct consequence of the 11 September attack.
Another direct outfall of the 11 September attacks has been a very substantial acceleration in the evolution and development of proposals to counter international terrorism. The main purpose of this debate is to enable the House to debate two such proposals which have emerged in the recent past at EU level.
Before I come to this proposal, it is appropriate that I say something about the pace and the range of activity taking place within the European Union Justice and Home Affairs area – commonly referred to as the third pillar area. The reality is that over the past while, the pace of third pillar activity has greatly exceeded activity levels in the first and second pillars. Respected independent experts have commented on this. In a recent article dealing with the area of freedom, security and justice, for example, Professor Monar of the Sussex University Institute has stated:
The European Union has now entered the new millennium with a new major political project which future historians may well regard as another of these defining ventures: the creation of the "area of freedom, security and justice (AFSJ). Laid down in Article 2 of the Treaty on European Union it occupies the same rank as a fundamental treaty objective as, for instance, the implementation of a common foreign and security policy, the single market and economic and monetary union. Politically its longer term significance could be even greater than that of these earlier important projects because it is all about delivering a range of essential public goods to the citizens of the European Union. These include key issues of internal security and access to justice, areas which have historically played a central role in legitimising the build-up of public authorities and the creation of the modern state and which – much more so than, for instance, foreign and security policy matters – are of direct concern to citizens.
He goes on to state:
There is no other example in the history of European integration of a policy-making area which made its way as quickly and comprehensively to the centre of the Treaties and to the top of the EU's policy-making agenda. Ten years ago, at the beginning of the 1990s, what was then called 'justice and home affairs' did not even exist as a policy-making area within the scope of the Treaties, and the limited co-operation between the member states which had been building up since the mid-1970s took place in a range of poorly co-ordinated intergovernmental groups which lacked adequate institutional structures, legal instruments and objectives. Today, after the Amsterdam reforms, the additional impetus given by the 1999 Tampere European Council and a broad range of legislation adopted or in preparation policy making in justice and home affairs has not only become a fundamental treaty objective but also one of the most dynamic and expansionist areas of EU development in terms of generating new policy initiatives, institutional structures and its impact on European and national actors.
The events of 11 September have added further impetus to the evolution and development of EU third pillar proposals. This, not surprisingly, imposes considerable pressure at both official and ministerial levels for countries such as ours with limited resources – we have to maintain pace with our EU partners, many of whom are much more heavily resourced than us. Apart from that, there is, and will be, additional pressure on national parliaments in respect of issues requiring parliamentary approval. Time pressures can mean that proposals will be brought to parliaments for approval when negotiations at EU level are either still in train or just barely concluded.
The proposal which is the subject of the motion before the House has been the subject of discussion, and significant amendment, over the past two months and only came up for decision at the Justice and Home Affairs Council on Thursday and Friday last, with the objective of it being agreed at the JHA Council. Although the proposal came up for decision on Thursday and Friday last, there was still a significant level of debate resulting in further important amendments to the text – some made at Ireland's behest – in an effort to secure overall agreement. The result is that the Dáil and Seanad are being asked to debate texts the latest version of which only became available yesterday.
My point in outlining the time pressures involved is not to suggest that Ireland is somehow being hard done by in having to deal with these matters at short notice – many of our EU partners have the same difficulties. My main point is that third pillar business is progressing, and is likely to progress for the future, in a way that will require us to look afresh at how we can, on the one hand, conduct business efficiently and effectively at EU level, while, on the other, also facili tate the necessary level of oversight and scrutiny by the Houses of the Oireachtas.
As it happens, agreement at the JHA Council proved elusive last week in relation to the European arrest warrant. I believe it is necessary, for reasons I shall outline when I come to the detail of the proposal, that the Taoiseach should be able to join the other EU heads of state or government this week in signalling his agreement to the European arrest warrant on the basis that the prior agreement of the Houses of the Oireachtas has been secured.
As to why this particular proposal and the motion on combating terrorism which will be debated later tonight came before the House at all, Senators will be aware of the provisions of Article 29.4.6º of the Constitution which states:
The State may exercise the options or discretions provided by or under Articles 1.11, 2.5 and 2.15 of the Treaty referred to in subsection 5º of this section and the second and fourth Protocols set out in the said Treaty, but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.
This provision was inserted largely on the basis of concerns which were expressed by the Labour Party. The understandable concern of the Labour Party in proposing the constitutional provision was that, in respect of certain matters on which the State could exercise an option or discretion, the approval of both Houses of the Oireachtas should precede any ministerial agreement. Senators will be aware that several matters have come before the Houses of the Oireachtas under Article 29.4.6º dealing with asylum, immigration and civil law matters.
It has not, however, been the understanding that matters needed to be brought before the Houses where the relevant treaty provision referred to actions that fall to be taken by the EU Council of Ministers, as distinct from actions taken on the basis that they fall within the "options or discretions" open to the State. The practice in relation to proposals for framework decisions, for example, which fall to be decided by the JHA Council and involve the approximation of laws, is to seek the advice of the Attorney General as to whether any constitutional issues arise. If a constitutional impediment is identified, the practice is to seek to have the offending provision removed as a precondition to ministerial agreement.
This procedure not only has the advantage of efficiency in dealing with JHA Council business, but ensuring that constitutional issues are identified and addressed before there is any agreement. Consistent with this approach, our EU partners, once they understood our constitutional difficulties, were invariably prepared to be accommodating in meeting those difficulties. Our partners have been accommodating also in relation to this proposal. Several provisions in the original draft proposal for a European arrest warrant gave rise to concern on constitutional grounds, but important adjustments have been made so that all but one of these have been fully addressed.
I will return later to the one remaining issue on which a question might be raised as to constitutionality and I shall be commending the proposals as they now stand to the House. The point I want to make is that, by virtue of the fact that important constitutional issues arose in respect of one of the draft framework decisions now before the House, the Government has decided, having taken the advice of the Attorney General, that while it has not been the norm to refer proposals for Council framework decisions to the Houses of the Oireachtas, the better course for the future would be to bring all proposals for framework decisions before the Houses.
Turning now to the proposed framework decision on the European arrest warrant, the European Council meeting in Tampere in October 1999 asked the Commission to bring forward a proposal for an arrest warrant. The Commission tabled its proposal in the aftermath of the events of 11 September. We discussed the proposed framework decision at the Joint Committee on European Affairs some weeks ago. There has been intensive negotiation since then and the text I have laid before the Houses of the Oireachtas represents what is likely to be the final shape of the decision. Fourteen of the member states, including Ireland, were able to indicate broad agreement to the proposals contained in the current text when the Justice and Home Affairs Council met on Thursday and Friday last week. I understand, following further direct bilateral contacts between the remaining member state and the Presidency, that the remaining member state is now also in a position to agree to the proposal as currently framed.
The proposal for a European arrest warrant has at its core the concept of mutual recognition and respect for the judicial processes of the member states of the EU. Based on those concepts, the proposal seeks to simplify procedures to ensure a more efficient system of justice throughout the Union. Towards that end, it is proposed to replace among the member states the existing extradition arrangements based on the 1957 Council of Europe Convention on Extradition with a simplified surrender procedure. In essence, it replaces the inter-state aspects of extradition with an inter-court system. It is important to emphasise that the European arrest warrant applies between EU member states only and that existing arrangements with non-EU states will continue to apply.
Ireland accepted the need to review current systems in light of the new and devastating threat from international terrorism. However, it was also concerned to ensure that the basic safeguards to protect the individual's rights and liberties were adequately protected. A proper balance needed to be found between the need to protect society at large while retaining the long established safeguards that have been a feature of extradition law heretofore. I believe we have achieved that balance.
The general rule set out in the framework decision provides that an arrest warrant may issue in respect of offences with a maximum penalty of at least one year's imprisonment. However, in the case of an offence on a positive list which carries a maximum penalty of at least three years imprisonment, the dual criminality requirement will not apply. The positive list I have referred to contains 32 of the most serious offences. These include hijacking, terrorism, murder, laundering the proceeds of crime, child pornography, firearms and explosives offences, illicit trafficking in drugs and radioactive materials, and, given our recent sad experiences, it will allow us to deal more effectively with illicit trafficking in humans.
In the case of offences on the positive list, a warrant may issue based on the definition of the offence in the law of the requesting state. As I indicated, the dual criminality test will no longer apply to offences on the positive list where there is a maximum penalty of at least three years. That is to say, it will no longer be necessary for the court in the requested country to consider whether the offence on which the warrant is based is an offence in both the requesting and requested state. However, given the seriousness of the offences listed, it is highly improbable that we could be faced with a situation where we would be surrendering someone for conduct which, if it occurred in Ireland, would not be a serious offence here too. The requirement of dual criminality will, however, continue to apply to all other offences coming within the scope of the framework decision.
The decision as now presented contains many safeguards. I was especially concerned that a person who had been surrendered should not be subject to investigative detention. That has been guaranteed. We have ensured that the proposed decision includes provisions ensuring that consideration is given to protection of the fundamental constitutional rights of the wanted person before he or she is surrendered. The rule of specialty, whereby the person may only be proceeded against for the offences specified in the warrant, is being retained. The consent of the individual and of the Minister will have to be given if the person is to be tried for other charges.
Furthermore, a person may be surrendered only in respect of offences committed in whole or in part in the requesting state; any attempt to pursue a person in respect of offences committed elsewhere will not be allowed. I sought to ensure throughout the negotiations that the indepen dence and discretion of the Judiciary in dealing with requests for surrender would be fully protected. This protection has been achieved. The framework decision also contains provisions ensuring that a person's right to free expression and free association are not interfered with.
I believe the framework decision will enable the European Union to respond to the new threats while preserving the fundamental concepts and ideals of individual freedom and liberty. It enables us, together with our partners in the European Union, to play our part in protecting our citizens against the evils of international crime and terrorism while upholding and protecting those basic rights and freedoms that are so essential in a free and democratic society.
It would be helpful if I outlined in a little more detail the content of the draft framework decision. Chapter 1 covers Articles 1 to 9, inclusive, and deals with general principles. Article 1 makes clear that a warrant may issue only where there is an intention to prosecute or to execute a sentence, that is, it is not for investigative detention. I have succeeded in having a declaration inserted in order to avoid any possibility of ambiguity on that point as far as Ireland is concerned. This Article also provides that nothing in the proposed decision shall interfere with the obligation on member states to respect fundamental rights and legal principles. It is important that should appear in Article 1 as a basic principle.
Article 2 is the fundamental part of the proposed decision, as it defines its scope. While the arrest warrant will apply to offences punishable by a minimum of 12 months in the issuing state, there is also set out what has been referred to as a positive list of major offences. The list contains 32 such offences. A major offence is one which attracts a penalty of a least three years' imprisonment. In the case of these major offences, the offence shall be as defined in the law of the requesting member states, but the critical point is that the court in the requested member state shall not apply the dual criminality test in such cases. This is a departure from current practice but, as I have indicated, we are very likely to find in practice that offences of the kind listed are in fact serious offences in all civilised societies. The dual criminality test will continue to apply to all offences other than those major ones to which I referred.
I referred earlier to one aspect of the proposed framework decision where a question might be raised as to its implications, constitutionally, for Ireland. The issue arises in the context of the positive list to which I referred and the proposal that dual criminality should not apply where a person is sought for an offence on the positive list attracting a term of imprisonment of at least three years in the requesting state. The reliance on the definition of the offence in the law of the requesting state only, without any means of establishing the position in the law of the requested state in relation to the same set of events or circumstances, has the effect of ousting the dual criminality test for any such offence. The Attorney General has advised that, in the absence of Dáil and Seanad approval pursuant to Article 29.4.6º of the Constitution, an Irish court would be as likely as not to make a finding of unconstitutionality in such circumstances. Article 29.4.6º gives the appropriate constitutional protection against that risk, although even in the absence of Article 29.4.6º it should still constitute merely a risk, albeit a substantial one, since there is no conclusive case law on the point.
Articles 3 and 4 set out mandatory and optional grounds on which a court in the requested state may refuse to execute a warrant. Between them, these Articles contain all the major reasons for non-execution of extradition requests under current law and practice. These grounds include, in addition to grounds related to dual criminality to which I have referred, situations where the person has benefited from an amnesty in the requested state, where he or she has already been tried for the offence in question or is currently being proceeded against, where he or she would not be held criminally responsible for the offence in the requested state, or where the person has been subject to a judgment in a third country for the offence in question. Article 4.7 ensures that the warrant may be refused where the offence took place in whole or in part in the requested state. It also ensures that a warrant may be refused if it relates to an offence committed outside the territory of the requesting state and the law of the requested state would not allow it to exercise extra-territorial jurisdiction for that offence.
In addition to these grounds, Article 5 specifies guarantees to be given by the requesting state. It must provide the wanted person with a new hearing if he or she has been tried in absentia. It must give assurances about access to regular sentence reviews where a person is facing a life sentence. It also makes provision that sentences may be served in the person's own state of residence or nationality.
Article 6 defines the judicial authorities, that is, the courts, as the relevant competent authorities for the issuing and execution of warrants. I draw the attention of Senators to this article because it marks the change from the inter-state nature of extradition as we have known it and replaces it with an inter-court system for the surrender of wanted persons. Article 8 provides that member states may designate central authorities to assist the judicial authorities. In Ireland, the central authority will be the Minister for Justice, Equality and Law Reform. Article 9 sets out the minimum content of an arrest warrant.
Chapter 2 of the draft decision covers Articles 10 to 20, inclusive. The Chapter deals with surrender procedures. Articles 10 and 10a are concerned with means of transmitting warrants. Article 12 ensures that the arrested person has access to legal advice and, where necessary, to the facilities of an interpreter. Article 13 provides that while there is an obligation on the requested state to ensure the person remains available for surrender, it also provides that the person may, in the words of the text, be provisionally released. In our system, that means being released on bail.
An arrested person may consent to surrender. He or she may also agree to revoke the rule of specialty. As I mentioned earlier, that rule ensures that a person may be proceeded against only in respect of the offences specified in the warrant. Article 14 ensures safeguards for the arrested person. It requires that there is a system in place to ensure that consent is given voluntarily and in full awareness of the consequences. In our case, that will mean giving the consent in open court and with access to legal advice. At the insistence of Ireland and some other member states, Article 14(4) makes clear that consent may be revoked, that is, a person may change his or her mind. All of these safeguards are designed to protect the person from undue pressure to consent.
Article 15 provides that the court in the requested state may seek additional information and that if this is not forthcoming within a specified and relatively short time, the person is to be released. Article 16 provides guidelines for situations where there is a number of warrants from other member states or extradition requests from third countries in respect of the same person and a judgment is required as to the priority between those requests.
Article 17 sets out timeframes for the taking of decisions by the courts on the execution of warrants. All member states recognised that it was important to ensure the new arrangements would result in faster and more streamlined arrangements. However, I had serious concerns about the very prescriptive approach taken in the initial drafts. I took the view that such an approach encroached on the independence and discretion of the courts. I have ensured, therefore, that the rigidity has been removed and we now have a set of target dates to be achieved.
Articles 17a and 17b spell out the process to apply when a delay occurs in the surrender process. It provides that the person may be temporarily transferred to the requesting member state or may be interviewed in the requested state but in accordance with the law and practice of the requested state. In other words, interviews being conducted here would be carried out in accordance with Irish law and practice. Where a person has been transferred temporarily, he or she has the right to return to attend all hearings relating to him or her. I think it very unlikely that we will agree to temporary transfers as it may be seen as interfering with a person's rights of access to the courts and to legal advice.
Article 17c deals with privileges and immunities. We are speaking here of immunities which certain office holders may enjoy. Article 17c provides for waiver of immunities and to deferment of surrender until the immunity has elapsed. Article 17d has been included to deal with situations where a person has been extradited to an EU member state by a non-EU state. It ensures that the conditions under which that person was extradited are respected. It is important that the Union acts in good faith towards third countries and that treaty obligations with third countries are respected. This Article will ensure all that.
Article 18 sets out arrangements for the surrender of the wanted person following a decision of the court to execute the warrant. It provides that the surrender should take place as soon as possible and within ten days in instances where the person has consented to being surrendered. Importantly, it also provides that surrender may be delayed for humanitarian reasons or for reasons related to the person's health.
Article 19 deals with cases where, although it has been decided to execute an arrest warrant, it is also necessary to continue with other proceedings under way in the requested state or to allow for the completion of a sentence already being served in the requested state. In such cases the requesting and requested state are required to come to an agreement on how to ensure the surrender takes place. Article 20 makes provision for transit through a third member state of a person being surrendered and specifies the information to be provided to the member state of transit.
Chapter 3 includes Articles 21 to 23 and is entitled "Effects of the Surrender". Article 21 ensures that time spent in detention in the requested state while awaiting surrender is deducted from the sentence, if any, imposed in the requesting state.
Article 22 deals with the important issue of specialty. As I mentioned, this term refers to the long established concept that a person may only be tried for the offences in respect of which or she was extradited or surrendered. That basic position is being maintained. However, it may be altered to the extent that the person agrees to waive the right to specialty and, as I said when dealing with Article 13, the giving of that consent has several safeguards attached to it. Specialty has long been viewed as something attaching to state sovereignty and, as a consequence, it is also necessary for the state that surrendered the person to give its consent to the rule of specialty being waived. In keeping with our view that this is a state rather than judicial function, I have ensured, by means of a special declaration, that in Ireland's case requests for the lifting of the rule will be dealt with by the Minister for Justice, Equality and Law Reform, as the central authority for Ireland, rather than the courts.
A similar situation arises under Article 23 which deals with the possibility of the person being subject to further onward extradition to a third country. As in the case of specialty, all such requests in relation to persons surrendered initially by Ireland will have to be subject to the agreement of the Minister for Justice, Equality and Law Reform. This protects Irish citizens in particular – we could not agree to having our citizens whom we had agreed to surrender to another member state being sent to another member state or third country without our agreement.
Article 23a makes provision for the handing over of property accumulated as a result of or in connection with the person's alleged activities. There are safeguards in the article to ensure, for instance, that the rights of third parties in the property are secured.
Chapter 4 covers Articles 25 to 28. I should perhaps clarify the position on Article 24. This was in the initial text as a fundamental rights safeguard clause but following the inclusion of paragraph 3 in Article 1, it was felt that Article 24 was no longer necessary. Senators will recall that Article 1(3) provides that nothing in this proposed framework decision shall relieve member states of the obligations to protect fundamental rights and fundamental legal principles.
Article 25 states that the proposed framework decision is to replace all the extradition arrangements existing between member states. It might be useful to remind ourselves again that existing arrangements within non-EU states are not affected by the proposed framework decision. I would also like to point out an important feature in Article 25(2). It allows existing bilateral arrangements to continue. In this regard, the UK authorities have approached me with a view to having discussions about whether it would be more beneficial for the United Kingdom and Ireland to continue their existing bilateral arrangements or to rely on the European arrest warrant. I will keep the House informed of developments.
Article 26 makes transitional arrangements. The new arrangements under this framework decision are due to come into operation in January 2004. Subject to the adoption of this decision, all member states will be required in the meantime to bring forth national legislation to implement the new system. That will be the case here in Ireland also. Article 27 makes provision for reports on the operation of the system, including reports to the European Parliament.
I recommend the draft decision to the House. It is a balanced and measured response on the part of the member states of the European Union to a shocking and entirely unprecedented attack on world peace and stability. It provides a comprehensive set of safeguards for any individual subject to an arrest warrant while providing society at large with a new and effective means of dealing with a most serious threat to the well-being of our democratic systems.