The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the General Assembly in 1984. It is a matter of regret that it has taken Ireland 18 years to ratify it. Perhaps the Minister will deal with it now.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
In taking some pride in our commitment to the promotion and protection of human rights we have to be vigilant in ensuring our own house is in order. Making ourselves amenable to the standards and obligations, the convention against torture and the other core human rights instruments imposed on us, allows us to speak in international fora with more authority on these issues. With the ratification of this convention we will have acceded to all six core human rights treaties - the other five are the Covenant on Civil and Political Rights, the Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of Discrimination Against Women and the Convention on the Elimination of all Forms of Racial Discrimination.
The committee will be aware that delays sometimes occur in ratifying international treaties and agreements. Under the dualist system which we share with other common law countries, where Ireland wishes to adhere to an international agreement we must ensure that our domestic law is in conformity with the agreement in question. There can be no question but that we take our commitments seriously and scrupulous attention is given to ensuring that we are in a position, legally, to fulfil all the obligations we sign up to.
Sometimes the legislation necessary is complex, as in the case of this convention. There was no statutory offence of torture in Ireland prior to the enactment of the Criminal Law (United Nations Convention Against Torture) Act, 2001. However, our courts have held that the unspecified personal rights guaranteed under Article 40 of the Constitution include freedom from torture and from inhuman or degrading treatment and punishment. Also, in the absence of a specific statutory offence of torture, actions which amount to torture may amount to other offences under our law such as serious assault.
There is also an extra-territorial dimension to the convention. In the context of extradition, it has been held that this should be refused if the court is satisfied, as a matter of probability, that a person would, if delivered to another jurisdiction, be subjected to assault, torture or inhuman treatment. Because these judgments have applied primarily to acts of physical torture, it was not certain that acts or omissions which could amount to mental torture would be equally covered. In all the circumstances, it was desirable to create a specific offence of torture which includes both physical and mental suffering and to provide appropriate penalties in relation to that offence.
Further complications were encountered with regard to extradition. The provisions of the Extradition Act, 1965 made it difficult for the State to comply with its international obligations under various international agreements concerning extradition, including this convention. However, on 13 December 2001, the Extradition (European Union Conventions) Bill was passed by the Oireachtas. Having been signed into law by the President, the provisions of the Act are expected to come into operation by way of a commencement order to be signed by the Minister for Justice, Equality and Law Reform on 20 March 2002. This new Extradition Act establishes a simpler and speedier procedure for the making of extradition orders. These orders are in turn essential to enable Ireland to participate in multilateral agreements which provide for extradition between state parties. The relevant sections of the Act, when they come into operation, will therefore allow Ireland to establish extradition arrangements with other state parties within the very short time frame allotted by most agreements.
Every society in the globalised environment we live in today has to set itself certain standards of behaviour. We must also be prepared to justify our progress in meeting those standards before international bodies which can bring an objective and searching analysis to our actions. The international human rights mechanisms of the United Nations provide that opportunity. To appear before the monitoring committee of the conventions against torture and other treaty bodies is to participate in a procedure which, through dialogue, should lead to better understanding of what we need to do to ensure that the provisions of these instruments are scrupulously honoured. In freely acknowledging the shortcomings which may be evident to detached observers, but which for whatever reason we ourselves have not seen, we enter into an engagement with the international community to rectify the faults, errors and omissions identified.
In ratifying the convention, Ireland seeks to participate to the greatest extent possible in its international application. To this end, it is proposed to recognise the competence of the Committee against Torture to receive reliable information on torture and to ask a state party to co-operate in the examination of this information. We also propose to recognise its competence to receive and consider complaints from one state party that another state party is not fulfilling its obligations under the convention. Ireland also intends to recognise the competence of the committee to receive individual complaints. Finally, we also propose to become party to the system of dispute resolution under the convention.
In the post 11 September world, the international community has rightly taken steps to protect itself against terrorism. Terrorists who visit pain and suffering on innocent people and seek to impose their will on democratic societies must be brought to justice and each member of the international community has a duty to play its part in making sure that this happens. However, human rights standards under international law must also be protected. Vulnerable groups are, as always, at increased risk in times of heightened fear and tension. They must not be added to the list of victims of terror. In international fora, particularly the UN Security Council, we have made this a consistent part of our policy approach. The ratification by Ireland of the UN convention against torture is a further manifestation of that approach and I look forward to the completion of this process.
It is an ill wind that does not blow some good. One cannot speak much good of Osama bin Laden and his crew but we are now to ratify the UN convention against torture as one of the measures taken after 11 September. I compliment the staff who quickly got the necessary papers and legislation together to allow us to do that. I take the point made by the Chairman as to what we have been doing for the last 20 years. Ireland is the only member state of the European Union that had not ratified the convention. It does not stand to our credit to have been in that unenviable position. Reading between the lines, that largely had to do with the political sensitivity of extradition. We tend to forget how sensitive that issue was. I recall being so exasperated by the attitude on extradition of the Government of 12 years ago, led by the Fianna Fáil Taoiseach Mr. Charles Haughey, that I tabled a Private Members' Bill on extradition. As a result of that, a package was sent to me at Leinster House which had to be blown up on Leinster House lawn by the Army. I am not saying that there was any connection between that package and the opposition of Fianna Fáil to my Bill, but the episode highlights how things have changed in relation to that sensitive issue.
However, extradition is not an excuse for Ireland to have taken so long over the ratification process. I am glad we have taken the necessary steps and have put in place the necessary legislation to enable us to ratify the convention. We can give a pat on the back to the officials who moved with alacrity after 11 September but the political process does not deserve great kudos for having left this issue in abeyance since 1984. I support the ratification of the convention.
This is purely a matter of form and something that is long overdue. It does not create any difficulties. The question of torture and inhumane treatment is covered comprehensively by the rules of the Council of Europe. This convention is probably world-wide and supersedes the rules of the Council of Europe but, from our point of view, what happens at the Council of Europe covers the issues involved. There could not be any objection from a reasonable person to this proposal.
The Minister explained the reasons for the delay and said it was necessary that two Bills were enacted changing our domestic law, one specifically referring to this convention and the other referring to extradition. He suggests that until such time as those Bills were passed it was not possible for Ireland to ratify this convention. I presume that what the Minister says is legally correct but it is a point that we will have to look at and one that I have raised before. We find ourselves in an extraordinary circumstance whereby we cannot ratify ordinary and rather obvious conventions seeking to outlaw torture unless we undergo a tortuous process of enacting domestic legislation. Other countries are not subjected to this.
The United Kingdom, which has common law with us, does not seem to be inhibited and I presume it is our Constitution that causes the difficulty. Ireland will not be taken seriously in terms of international relations and international organisations unless it acts more expeditiously in ratifying conventions to which there could never be any political objection or reservation and to which there is no opposition. However, we are ratifying something 18 years late that should have been ratified in its first year.
I have made this suggestion before in relation to many international conventions and I understand that the Attorney General was supposed to ascertain if there was any way to overcome these extraordinary delays, but I am not aware of him having come up with any solution to the problem.
He is too busy otherwise at the moment.
We cannot go on waiting for a whole lot of detailed and difficult domestic legislation. If you think the 18 year delay in the case of this convention is bad, you should look at the next one we have to deal with, which also has a very worthy objective. It is the 1907 Convention for the Pacific Settlement of International Disputes, which we still have not ratified. We do not yet know the reason for the delay, but it has been 95 years.
It has been a long maturation process.
It is a bit like the former Irish attitude to marriage which was not to rush into a thing. A boy would only contemplate such a step when he was well over 50.
It is essential that we ratify the convention on torture. I am not clear about the extent to which it is binding only on governments. This island, like many other countries, has seen and unfortunately continues to see torture inflicted by agencies other than those of the State. That is something the State does not concern itself with sufficiently, but we are supposed to be living in the era of the peace process and it is unfashionable to query that in any way. We are supposed to believe that everything is perfect, but on an almost nightly basis people are tortured on this island by members of an organisation whose leaders are welcomed with open arms in the corridors of power. They are particularly welcome in Merrion Street and Downing Street.
Let us be balanced and say that there are a number of such organisations.
There are a number of them. There are people on the other side of that divide doing exactly the same thing and they are often not doing it for political purposes or reasons. In fact, usually they are not. They are doing it to secure their nefarious and illegal activities of extorting protection money, smuggling and racketeering. Money is raised for political activity, but the torture is aimed at enforcing racketeering of various kinds. Perhaps the Minister can tell us to what extent this convention applies to non-state agencies.
This convention relates to state actors, not to non-state actors. I have a less jaundiced view of the peace process, though it is certainly not a naive one, but it is only through policing reform that many of these issues will be dealt with. There is a need to recognise that this is a case of conflict resolution in which we do not compromise our democratic principles. We try to ensure that the rule of law is applied equally to all sectors of the community by a police force that is representative of the community. We must ensure that there is respect for the legitimacy of the aspirations of people other than those who had supremacy for so long in Northern Ireland and whose own nefarious activities brought about the conflagration we saw when basic human and civil rights were denied to peaceful protesters. I do not wish to go into a historiography of the Northern Ireland conflict, but we have a peace process which is adhering to democratic principles and which insists on reforms in a range of state institutions which did not fulfil their basic duties to all citizens during what was, admittedly, a very difficult time. Adherence to human rights is particularly important for state actors and institutions, but that in no way diminishes the insistence we all have as democrats that everybody upholds those standards of behaviour in the political and democratic life of the country.
The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the UN General Assembly in December 1984 and entered into force in June 1987. Ireland signed the convention on 28 December 1992 - ten years ago - and from that date we have been under an obligation to ratify it. That does not take away from the validity of the point made about the delay, but for the purposes of accuracy I make the point. The convention, which provides a framework for international protection against torture, was drawn up to provide an international system under which a person who has committed torture could find no safe haven. Ratification of this important convention will allow Ireland to play its part more fully in this international effort.
On 14 June 2000, the President signed into law the Criminal Justice (United Nations Convention Against Torture) Act, 2000, the purpose of which was to permit ratification of the convention. The Act creates a specific statutory offence of torture incurring a penalty, up to life imprisonment, and allows a person to be tried here or to be extradited in relation to the commission of the new offence anywhere in the world. The Act also prohibits the extradition or expulsion of a person from this State where there are substantial grounds for believing the person might be subjected to torture were either of those courses of action followed.
Members have referred to difficulties concerning extradition. The provisions of the Extradition Act, 1965, made it difficult for the State to comply with its international obligations under various agreements concerning extradition, including, once it is ratified, the convention against torture. Section 4 of the Act required the approval of both Houses of the Oireachtas of an extradition order in draft prior to its making by the Government. Section 8 of the Act permitted an order to be made by the Government with respect to an international agreement relating to extradition only where the State is already a party to the relevant agreement. This meant that the relevant order had to be made between the date the State became a party to an agreement and the date of the entry into force of the agreement for Ireland.
Subsequent orders necessary to take into account the State's obligation to other states which become party to the agreement after its entering into force in that state had to be made between the date that such a state became a party to the agreement and the date that the agreement entered into force for it. In the case of the convention against torture the period between these two dates is only 30 days. The Government decision obtained on 23 October 2001 gave a general authorisation to draft and lay orders relating to the convention as the need arises and to move any necessary motions in the Houses of the Oireachtas in relation to these draft orders. Separate memoranda to the Government would be required in each instance to make the order.
On 13 December 2001 the Extradition (European Union Conventions) Bill was passed by the Oireachtas. Having been signed into law by the President, the provisions of the Act are expected to come into operation by way of an order of the Minister for Justice, Equality and Law Reform to be made in the Dáil on 20 March 2002.
Sections 21 and 23 of the Extradition (European Union Conventions) Act, 2001 establish a simpler and speedier procedure for making Part II extradition orders and are essential to enable Ireland to participate in multilateral agreements which provide for extradition between State parties. Section 21 of the Act provides that extradition orders in respect of other countries no longer require a positive resolution of the Oireachtas. Section 23 dispenses with the need for the terms of the relevant agreement to be embodied in each amendment to an extradition order. When they come into operation the sections will, therefore, allow Ireland to establish extradition arrangements with other state parties within the very short timeframe allotted by most agreements.
Regarding the European Union dimension, Ireland remains the only EU member state not to have ratified the convention against torture, a position becoming increasingly untenable since the General Affairs Council adopted guidelines against torture in April 2001. These guidelines will form the basis for co-ordinated action at EU level to address incidents of torture in third countries. These actions could be seriously undermined when one EU member state, Ireland, has not ratified the key human rights instrument on torture. Ratification of the convention will facilitate the implementation of the EU guidelines against torture by Ireland and our partners.
The Chairman referred to the broader point that Ireland needs a system for the incorporation of international agreements. Like other common law countries, we have a type of system under which international agreements to which Ireland becomes a party are not automatically incorporated into domestic law. It follows from the dualist nature of Ireland's legal system that the provisions of the convention cannot be invoked before and directly enforced by the courts and that it is necessary to examine the extent to which Irish law itself correctly reflects the obligations of the convention.
The basic point to which the Chairman referred is constitutional. Article 29.6 of the Constitution provides that no international agreement shall be part of the domestic law of the State, save as may be determined by the Oireachtas. Where Ireland wishes to adhere to an international agreement, it must ensure that domestic law is in conformity with the agreements in question. In some cases the entire contents of an international agreement are transposed into domestic law by providing that the agreement shall have the force of law within the State. An example is the Diplomatic Relations and Immunities Act, 1967, which provides that the provisions of the Vienna convention on diplomatic relations and consular relations have the force of law in Ireland. In other cases, it is necessary to transpose only certain provisions of an agreement because other provisions are already either incorporated in domestic law or are of a nature not requiring incorporation.
To enable ratification of the United Nations convention against torture it was necessary to create a specific statutory offence of torture. This was done via the Criminal Justice (United Nations Convention Against Torture) Act, 2000, which in effect incorporated the obligations of the convention into Irish law. In answer to the broader point, a referendum would be required.
It is disappointing to find that is the case. On the question of whether it applies to individuals, the Act of 2000 obviously does because one cannot extradite a state and extradition provisions can only relate to individuals. It will be increasingly difficult for Ireland, particularly in the present mood of countries being anxious to deal with terrorism, to continue to take so long to ratify various conventions.
Other conventions have not been ratified. The Minister may recall that at a meeting held, I believe, after 11 September, he agreed to provide us with a list of conventions of this general type which Ireland has not ratified. The list is extraordinarily long and contains 40 or 50 such conventions, of which at that time 11 were related to one or other aspect of terrorism. Including this one, about half of these have since been ratified, which means that half have not been ratified, including, I believe, a very important one in the present context, namely the Convention for the Suppression of the Financing of Terrorism.
When one analyses the reasons for the delay in ratifying it and some of the others, they are similar to those given by the Minister, namely, that we had to wait until two Acts were passed and enacted. We will operate with one hand tied behind our back if this situation continues. If it is the case that we need a referendum, it would be a more worthy cause than some of the referenda we have had during the years. The ratification of this convention is a genuine necessity and I am absolutely sure that a referendum is necessary to do so.
The provisions of Article 29 of the Constitution state that Ireland cannot ratify international agreements or conventions that impose a charge on the public purse except with the consent of the Dáil. It does not provide that they must be enacted in domestic legislation first, but states the converse which is that they do not automatically become part of domestic law unless they are enacted. In order to ratify a convention one does not necessarily have to make it part of domestic law.
The point really comes down to how one fulfils one's international obligations. It depends on the content and substance of the convention. In some cases, one makes commitments to fulfil obligations which need not be incorporated into domestic law because one may already have done so or it may not require incorporation. There are others where this is definitely required. In the case of torture, one had the problem with the extradition issue and also the statutory definition of torture.
Regarding the mechanisms for the suppression of the financing of terrorism, this is obviously one of the priority areas, of which, as the Chairman stated, there are so many. This convention arises out of the events of 11 September and has been highlighted as one which needs to be ratified by everybody. It is being drafted in the Department of Justice, Equality and Law Reform as we speak.
I accept the Chairman's general point. The rising number of conventions, treaties and obligations which we must apply in domestic law creates a workload which would not have been envisaged during the drafting of the Constitution in 1937. It is right that when one makes international agreements, one should be subject to parliamentary scrutiny and approval. Rather than drafting and passing a Bill in the Oireachtas, clearly the simple approval of a motion incorporating the convention or other international agreement would be a far speedier approach which would still maintain the principle of a Government's democratic accountability to the Oireachtas for entering into such international obligations.
However, one cannot get around the problem of Article 29.6 very easily. It may be an issue for which some time should be allowed. I agree that where we enter into these agreements, the timeframe should not be such as to allow a misinterpretation by members of the international community and have them believe we are, in some way, less than sincere in making sure we abide by these obligations. Delay can sometimes suggest we are not taking them seriously or that we do not really support the content of such declarations, which would be far off the mark. Many of them are very non-contentious in terms of the principles involved. Maybe this is an issue the Committee on Foreign Affairs might address and make proposals on how we might deal with it. It is an ongoing issue around which we cannot easily skirt.
That concludes the consideration of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. We will report to the Dáil that we have considered it and that the committee is fully in support of its ratification. Is that agreed? Agreed.
We will now consider the fourth and final agreement, the Convention for the Pacific Settlement of International Disputes, 1907.
Was there not a fifth matter on the agenda?
It has been superseded by the second one. We discovered we did not have to ratify the fifth item. It was withdrawn.