Criminal Justice (United Nations Convention Against Torture) Bill, 1998: Committee Stage.

Wednesday, 17 February 1999

Seanad Éireann Debate
Vol. 158 No. 5

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Section 1 agreed to.

Mr. Ryan:  I move amendment No. 1:

In page 4, between lines 8 and 9, to insert the following new subsection:

“(3) A person, other than a person referred to in subsection (1) or (2), who carries out an act of torture on another person, whether within or outside the State, shall be guilty of the offence of torture, but shall be liable to be prosecuted in the State if that person or the victim of the offence is an Irish national or if that person subsequently enters the State or if the offence was committed in or has any other substantial connection with the State.”.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment sets a minimum standard and it is welcome that we are meeting it. However, Article 1.2 states: “This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application”. Nothing in the convention prevents us from putting together a view on torture which is wider in application than that of the European convention.

The purpose of the amendment is to extend the provisions of the convention as it applies in this State beyond what are described in the Bill as a “public official” or a person who carries out an act of torture “at the instigation of, or with the consent or acquiescence of, a public official”. We are seeking to make torture by anybody, as defined under the convention, an offence in this State. We were careful when wording the amendment not to extend it too far. It states:

A person . . . . who carries out an act of torture on another person, whether within or outside the State, shall be guilty of the offence of torture, but shall be liable to be prosecuted in the State if that person or the victim of the offence is an Irish national or if that person subsequently enters the State or if the offence was committed in or has any other substantial connection with the State.

We are concerned about the horrendously large international organisations in the drug business, the equally obnoxious armaments business and those involved in terrorism and punishment beatings. It is a peculiar exception to confine strictures on something as revolting to all civilised people as torture and to suggest that we cannot make torture by anybody, particularly by criminal gangs, an offence to be tried in this civilised State where we do not have the death penalty. Why should a Colombian drug cartel, the Russian Mafia or an Irish criminal gang in this city which [333] sells drugs to young people and inflicts pain as the offence is defined in this Bill, not be guilty of the same offence? Our amendment seeks to extend the offence to anybody who commits an identical offence and not to confine it to public officials.

Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace): Information on Mary Wallace  Zoom on Mary Wallace  Section 2 already provides that the offence of torture is committed irrespective of the nationality of the person committing it and the state in which it takes place. Section 4 provides that proceedings for an offence under the Act may be taken in any place in the State. Taken together, these mean the offence of torture committed anywhere in the world can be prosecuted here and the nationality of the person committing the offence is irrelevant. Therefore, the only way the amendment appears to go beyond this is by referring to a person other than a person referred to in section 2(1) or (2). The effect would be that torture could be committed by someone who is not a public official or acting at the instigation of or with the consent or acquiescence of a public official or, as Senator Ryan stated, by anybody.

As the House is aware, the purpose of the Bill is to enable Ireland to ratify the UN convention which deals with torture inflicted by agents of the state. The amendment would have the effect of creating an offence of torture that was not committed by agents of the state or persons acting at the behest of such agents. That is obviously not required by the convention. To include the offence of torture which does not arise in the context of oppression by the state would dilute the aims of the Bill and the convention.

“Acts of torture” within the ordinary English meaning of the words can be committed by people not acting on behalf of the State, as Senator Ryan stated. However that type of behaviour is more appropriately dealt with under ordinary criminal law, for example, in the Non-Fatal Offences Against the Person Act, 1997. For these reasons I cannot accept the amendment but I would emphasise that the Bill as it stands will allow persons who commit torture as defined in the Bill anywhere in the world to be put on trial here.

Mr. Ryan:  The Minister's argument is all very well but it has been made before. However the truth is that the convention specifically states that the article in which reference is made to public officials or persons acting under the instruction or acquiescence of public officials is not the be all and end all of the convention. It states that the article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. The convention makes provision for wider application. I would like the Minister of State to explain why torture committed by someone who is not a public official outside this State could not be prosecuted if that person entered this State. I [334] would like to know the State or international policy reason even if someone enters the State and the Garda have a huge amount of evidence that the person committed torture, say in Northern Ireland, Colombia, Russia, Turkey or Kosovo, we cannot prosecute him or her because the offence was committed outside the State unless we can show he or she is a public official or was acting on behalf of a public official. That is my first question.

My second question is this. There are countries in which there are no such things as public officials because of the state of chaos in the country. One of those is Somalia, a country to which the Department of Justice, Equality and Law Reform sometimes attempts to deport people because the Department allegedly believes their human rights cannot be breached since there is no state to breach them under the provisions of the Geneva Convention. This is a silly issue to debate. There is no reason not to accept this amendment. It simply states that we will prosecute anybody in the world who commits torture and comes to Ireland if we are satisfied they have been torturing people. Could the Minister please explain why we cannot do that before I decide what to do about the amendment?

Miss M. Wallace: Information on Mary Wallace  Zoom on Mary Wallace  Activities such as punishment beatings are already covered by criminal law. While we deplore the activities of drug traffickers, as mentioned by Senator Ryan, which can be dealt with under ordinary criminal law, the convention and the Bill mark out the unique nature of oppressive behaviour by the State. The involvement of a public official is central to the definition of torture in the UN convention and in the Bill. I would not be prepared to deviate from that, as would be the case if the amendment were accepted. We are adhering to the definition of torture in the UN Convention.

Mr. Ryan:  Why is the Minister not prepared to accept the amendment?

Miss M. Wallace: Information on Mary Wallace  Zoom on Mary Wallace  We are going with the UN convention to have it ratified; it is clearly in regard to torture inflicted by agents of the State.

Mr. Ryan:  Conventions make provision for national legislation and may contain provisions of wider application. What is wrong with that? The Minister of State agrees with me. The problem is that torture, as defined in the Bill, means if a person who is not an agent of the State in Northern Ireland tortures somebody there, he or she cannot be tried in this State for that offence, although he or she could be tried for assault and many other things.

We all agree that torture, as defined in the Bill, is, in the canon of offences, a profoundly more serious offence than assault. It is not that the Minister does not want this done, but I would like to know why the Government has set its face against being imaginative.

[335] It has been tradition with successive Governments to get minimalist ratification of international conventions. The same was the case in regard to data protection. The amendment is perfectly consistent with the convention and puts us a little to the forefront of civilised states.

Miss M. Wallace: Information on Mary Wallace  Zoom on Mary Wallace  We are working with the international agreement and with the UN convention. I know Senator Ryan understands the point but as defined in the Bill, a person who commits torture anywhere in the world can be tried here irrespective of his or her nationality. We will not go beyond that at this stage in that we have come to the conclusion that adhering to the definition in the UN convention is the way forward. If it is of help to the Senator we will consider his concerns between now and Report Stage but, in our opinion, this is the correct way to proceed.

Mr. Ryan:  I appreciate the offer, but the Bill defines a public official as a person acting in an official capacity. There was an interesting debate before the Law Lords in Great Britain recently about when General Pinochet formally became head of state in Chile. There was a gap between when he organised his appalling coup and when he became head of state. We are suggesting that in the period before he became head of state he did not, as far as this State is concerned, organise torture and neither did the people who acted on his behalf because they were not acting in an official capacity at that stage.

I am happy to have the convention ratified, but I find it strange that we are not in a position to say such people are guilty of torture. I accept the Minister of State's point that the argument about non-nationals is a secondary issue. I do not know why people, like General Pinochet, who organise torture in the period before they become heads of State, are exempt from penalty in this State. I will withdraw my amendment for Report Stage.

Amendment, by leave, withdrawn.

An Cathaoirleach: Information on Brian Mullooly  Zoom on Brian Mullooly  Amendments Nos. 2, 3, 4 and 10 are related and may be discussed together by agreement.

Mr. Ryan:  I move amendment No. 2:

In page 4, subsection (4), line 14, after “person” to insert “, including”.

These amendments seek to introduce into the Bill a reference to Article 3 of the European Convention on Human Rights and Fundamental Freedoms which contains a provision on the prohibition of torture that states: ”. . . . . no one shall be subject to torture or to inhuman or degrading treatment or punishment. . . . ”. In light of the Good Friday Agreement, the commitment to human rights and the fact that, historically, this State accepted the jurisdiction of the European Court – an unprecedented step – it is appropri[336] ate that reference to the Convention on Human Rights and Fundamental Freedoms should be contained in the Bill.

Miss M. Wallace: Information on Mary Wallace  Zoom on Mary Wallace  These amendments seek to change the definition of torture as contained in the Bill. Amendment No. 3 seeks to include the words “inhuman or degrading treatment or punishment” as referred to in Article 3 of the European Convention on Human Rights. Amendment No. 10 seeks to create a separate offence in relation to cruel, inhuman or degrading treatment.

The primary purpose of the Bill is to enable Ireland to ratify the UN torture convention. That is why it adheres closely to the definition of torture contained in the convention. For that reason alone, I would be reluctant to depart from the definition in the Bill.

The amendments also give rise to a number of other substantial difficulties. While I acknowledge the thinking and approach behind them, there is a fundamental principle in criminal law that an offence must have certainty. Obviously, a person should know or be able to find out if a particular activity constitutes an offence. In this context, section 2 seeks to set out a comprehensive definition of what constitutes the offence of torture. This approach would be undermined by the inclusion of amendment No. 2 which would place the word “including” before the definition. This would imply that there are other forms of activity outside those listed in section 2 which amount to torture. This would offend against the principle of certainty contained in criminal law.

This issue also arises in the context of amendments Nos. 3 and 10 which seek to include inhuman or degrading treatment as part of the definition of torture or to create a separate offence of cruel, inhuman or degrading treatment. The Government decided not to go down this road primarily because it did not seem possible to formulate an offence along those lines which would have the element of certainty necessary for the creation of a particular criminal offence.

While Members may be able to give examples of what they regard as inhuman or degrading treatment which stops short of torture – jurisprudence is evolving in the European Courts in this regard – at the end of the day we could not maintain that without further definition. The concept is that a person – to put it at its most basic – would be always in a position to know or to ascertain whether a particular form of activity constituted an offence. While, obviously, inhuman or degrading treatment is to be deplored, in reality officially sanctioned practices carried out in good faith by employees of an organisation ultimately might be found by a court to represent inhuman or degrading treatment. It cannot be right that, under this Bill, those employees could face up to 20 years or life imprisonment in circumstances where they were not aware or could not establish that such prac[337] tices constituted the offence proposed. If we wish to outlaw specific behaviour we should do so, as we are, in defining the offence of torture. If activities that amount to inhuman or degrading treatment are not already covered in the criminal code, we can make those specific activities a crime. Insurmountable problems would arise with the creation of a broad offence of the type mentioned in the amendments. Similar difficulties would arise in relation to amendment No. 4. Senators may recall that it was explained on Second Stage why the phrase “but does not include any such act that arises solely from, or is inherent in or incidental to, lawful sanctions” is included in the definition as it is in the convention. For example, the act of imprisonment could, irrespective of how humane the prison regime might be, cause severe mental suffering in the case of a particular individual. Obviously, this should not constitute the offence of torture. It is not clear, from the use of the words “without prejudice”, what the amendment seeks to achieve. It could be open to the charge that it would contribute to a lack of certainty in the definition of the offence. While I appreciate the thinking behind the amendments, I am not disposed to accepting them for the reasons I have outlined.

Mr. Ryan:  I accept the Minister's concern regarding the lack of certainty about the definition of cruel, inhuman or degrading treatment. However, if we do not know the definition, what is the point in having it prohibited in the European Convention on Human Rights and Fundamental Freedoms, which has been very useful and one of the most imaginative responses in Europe to the horrors of the Second World War? It is peculiar for the Minister of State, on behalf of the Government, to come in here and state that this phrase has been in place for almost 50 years, but we do not know what it means. If she argued that this is not the appropriate context, as she did on the European Convention, there would be some logic to it. However, it is confusing to hear her say that, after almost 50 years, she does not know what cruel, inhuman or degrading treatment means in law, particularly given our experience in the immediate aftermath of internment in the North when the European Court on Human Rights created a distinction between torture and cruel and inhuman treatment. I am surprised the Government does not know what the Convention on Human Rights means.

The logic of grouping amendments is a mystery and I would like to have it explained to me. However, I do my best to be disciplined on Committee Stage.

The objective of amendments Nos. 2 and 4 is different. This goes back to confusing logic because the Minister of State was concerned about the phrase “without prejudice to any international instrument”. The convention contains the phrase “this article is without prejudice to any international instrument”. Is the Minister of State [338] saying the Government will ratify the convention even if it does not know the mean of “without prejudice” ? On the other hand, if the Government knows its meaning she cannot argue she does not. Either the Government does not understand what it is doing or the Minister of State is putting forward a spurious argument.

My party is trying to reduce the capacity of other countries to be able to use appalling legislation as a mechanism behind which torturers can hide. Because the phrase is imprecisely worded and because it is in the nature of all these international conventions to seek a lower common denominator, language is put into it. Under article 1.2 the convention makes provision for countries that want to do better than the minimum. I want us to do better than the minimum and to say that we are prepared to look at offences which are not illegal in other countries. For instance, chopping somebody's hand off is brutal and I do not believe that any religious law in any State can make it right. We should not ratify without qualification an international convention which, for reasons of politics going back almost 20 years, left such matters alone.

Section 2(4) states:

(b)for any reason that is based on any form of discrimination,

but does not include any such act that arises solely from, or is inherent in or incidental to, lawful sanctions.

Amendment No. 4 simply seeks to insert, after the word “but”, “without prejudice to any international instrument to which the State is a party on the commencement of this Act. . . ”. In other words, if there is another international agreement – including, incidentally, the European Convention on Human Rights – we should not be prevented from enforcing it because of a minimalist interpretation of a UN convention. We should be entitled in this State to operate to civilised standards. The amendment continues: “. . . or to any enactment which may or does contain provisions to the contrary”. In other words, if we decide to include in this definition certain offences in this State, which are more demanding than the minimalist demands of the UN convention, we should be entitled to do so.

I do not follow the logic of the Bill. To a degree, I can accept the unwillingness to insert the UN Convention on Human Rights, even if I do not agree with it. However, I cannot understand the logic of saying that we do not want to protect people who come into this State, and who have committed offences which we regard as torture, and allow them to be exempted simply because in their own state they were given carte blanche.For instance, if torturers are granted a pardon in their own State – and this has happened in a number of states – should they be able to come to Ireland and claim that, because they were given lawful sanction to do this in their own state, [339] the UN convention does not matter? That is what we are trying to avoid.

The wording here is a matter for discussion and I do not have the resources of the parliamentary draftsperson. However, the principle that people should be able to avoid a UN convention by having carefully and defensively drafted legislation in their own case is a separate issue.

Miss M. Wallace: Information on Mary Wallace  Zoom on Mary Wallace  The “without prejudice” concept is used in the convention in the context of a criminal offence where greater certainty is necessary, but given Senator Ryan's explanation of amendment No. 4, we are willing to look at it again before Report Stage. It is clear from the Senator's explanation what he is trying to achieve.

With regard to the other points he made about the definition in the European Convention on Human Rights, it is important to say that while the concept is in the convention, it is not in the context of creating a criminal offence. A State can be found to be in breach of the convention, but individuals do not face criminal sanctions.

I know the Senator is concerned about the concept of “with prejudice”. We can see more clearly now what he means and we will look at amendment No. 4 before Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 3 and 4 not moved.

Section 2 agreed to.

An Cathaoirleach: Information on Brian Mullooly  Zoom on Brian Mullooly  Amendments Nos. 5 and 6 are related and amendment No. 7 is consequential on amendment No. 5, so all may be discussed together. Is that agreed? Agreed.

Mr. Ryan:  I move amendment No. 5:

In page 4, line 27, after “nationality,” to insert “whether within or outside the State,”.

Section 3 is peculiarly worded. It states:

A person, whatever his or her nationality, who–

(a)aids, abets, counsels or procures, whether within or outside the State, the commission of an offence under section 2,

(b)attempts to commit or conspires to commit an offence under section 2, or

(c)does an act with the intent to obstruct or impede the arrest or prosecution of another person, including a person who is a public official, in relation to an offence under section 2,

shall be guilty of an offence. . . . .

This results in the peculiar position where only section 3(a) refers to whether the offence is com[340] mitted within or outside the State; section 3 (b) and (c) makes no reference to this. Two of my amendments seek to ensure that all of section 3, paragraphs (a), (b) and (c), apply to persons, whether the offence is committed within or outside the State, simply by inserting the phrase “whether within or outside the State,” in the first line of section 3. This clarifies what I believe is the intent of the legislation.

Amendment No. 6 makes more explicit what I believe is the intent of the Government. The offence is currently described as applying to a person who “aids, abets, counsels or procures” torture; my amendment adds “directs, instructs,”. It is important to clarify that anyone who in any way has anything to do with the organisation of torture should not be covered in this State and that we understand the convention to mean this. Two of my amendments are related but I would be happy if the Minister discussed them separately.

Mr. J. Cregan: Information on John Cregan  Zoom on John Cregan  While I do not have the in-depth knowledge of Senator Ryan on this issue, he is making the legislation more simple, so I ask the Minister to accept the amendments.

Miss M. Wallace: Information on Mary Wallace  Zoom on Mary Wallace  I agree with Senators Ryan and Cregan that these amendments improve the text of this section so I am happy to accept them. I thank Senator Ryan for putting them down.

Amendment agreed to.

Mr. Ryan:  I move amendment No. 6:

In page 4, paragraph (a), line 28, before “aids” to insert “directs, instructs,”.

Amendment agreed to.

Mr. Ryan:  I move amendment No. 7:

In page 4, paragraph (a), lines 28 and 29, to delete “, whether within or outside the State,”.

Amendment agreed to.

Section 3, as amended, agreed to.

Mr. Ryan:  I move amendment No. 8:

In page 4, before section 4, to insert the following new section:

“4.–Where a person has before the commencement of this Act carried out an act of torture, whether within or outside the State which was at the time of such commission an offence against international law by reason of the fact that either—

(a)the act was carried out at any time and constituted or was carried out in the course of a crime against humanity, an act of geno[341] cide or a contravention of the laws and customs of war, or

(b)the act was carried out on or after the 10th day of December, 1984 and constituted a contravention of the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York on the 10th day of December, 1984,

such person shall be liable to prosecution for that offence in the State and on conviction on indictment thereof shall be liable to imprisonment for life.”.

This Bill only applies to offences committed from the coming into force of the Bill. I am not blaming this Government for that; this convention came into force on 26 June 1987 but was accepted by the General Assembly on 10 December 1984. The purpose of this amendment – I am prepared to discuss the text as I do not claim any vast knowledge on these matters – is to close a loophole where people who committed torture and are covered by the convention are exempt from prosecution in this State because we failed to ratify the convention for 12 years. I am happy with the wording of the amendment.

We are saying that torturers around the world who committed offences of torture between 1984 and 1999 should not be able to use this country as a possible place to escape from prosecution in other countries where this convention came into force earlier. I appreciate there may be a problem with retrospective action. However, in the area of international law it is worth taking a risk, which can be tested in the courts by anyone who is tried here. We should not write it into our law that this is a safe haven for torturers under the UN convention, if the offence was committed between 1984 and whatever date in 1999 this Bill comes into force.

Miss M. Wallace: Information on Mary Wallace  Zoom on Mary Wallace  I appreciate that these amendments have been drafted in an attempt to get around the general principle in our law that we cannot create offences retrospectively. I appreciate the thinking behind the amendments; however we must consider Article 15.5 of the Constitution which states that the “Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission”. The amendment tries to get around the prohibition by referring to offences against international law. However, it is an established principle that offences against international law are not offences here unless we so make them in our domestic law. It is only through this Bill that we will be creating in our domestic law the offence of torture.

There seems to be little doubt that when Article 15.5 of the Constitution refers to infringements of the law that what is at issue is the law of the State. Accordingly, it would not appear consistent with Article 15.5 to allow for the prosecution here of the offence of torture prior to the coming into force of the present Bill. However, I [342] acknowledge this is a complex issue and I understand the Senator's position. We are prepared between now and Report Stage to have detailed consultations with the Attorney General's office to see what, if anything, can be done on the issue of retrospection generally.

However, in relation to the trial of offences here and the rules governing extradition to another country, in the circumstances I have outlined I do not hold out much hope for trying people here for offences which were not offences under domestic law at the time. However, we will look at the matter in detail and will consult with the Attorney General's office between now and Report Stage.

Mr. Ryan:  I thank the Minister for her generous response. I suggest that perhaps we could insert an additional definition of torture in this Bill which would be covered by the domestic law on assault, battery, etc. While the definition of torture as an offence in itself may not be made retrospective, we could make it more difficult for people; I am concerned that because of our late ratification people could come here to be immune from prosecution. We ought to examine whether we can extend the law as it stood since 1984 to cover some of these offences, at least in that hiatus period, so Ireland would not be a comfortable place for these people. I appreciate the constitutional problem and I am sure the Minister of State will do her best to deal with it.

Amendment, by leave, withdrawn.

Government amendment No. 9:

In page 5, between lines 6 and 7, to insert the following new subsection:

“(4)A person charged with an offence under this Act shall be tried by the Central Criminal Court.”.

Miss M. Wallace: Information on Mary Wallace  Zoom on Mary Wallace  This amendment relates to section 4 which deals with proceedings for offences under the Bill. The purpose of the amendment is to provide that a person charged with an offence under this legislation will be tried by the Central Criminal Court. A similar provision exists in section 2(4) of the Genocide Act, 1973 and it would be appropriate to apply this arrangement to torture to mark the serious nature of the offence.

Amendment agreed to.

Section 4, as amended, agreed to.

Amendment No. 10 not moved.

Section 5 agreed to.

Mr. Ryan:  I move amendment No. 11:

In page 5, line 28, after “1998” to insert “or any other act or omission by which severe pain or suffering, whether physical or mental, is intentionally and wrongfully inflicted on a person”.

This section amends the Extradition Act, 1965, by the insertion of the definition of torture. Amendment No. 11 seeks to add to that definition the phrase “or any other act or omission by which severe pain or suffering, whether physical or mental, is intentionally and wrongfully inflicted on a person”. We do not believe people should be extradited to countries where the practice of cruelty, even without the intent of “torture” contained in the definition, is accepted. Most people would agree with that belief.

Ireland has an honourable convention not to extradite people to countries which apply the death penalty, or at least I hope it has such a convention. I am not aware of any such extradition and I do not believe the Supreme Court would permit it. Ireland should also refuse to extradite people to countries which intentionally practise the infliction of severe pain or suffering, whether physical or mental.

I do not seek to defend criminal activities; I have no problem with the principle of extradition. However, I have a problem with countries which believe in chopping off the hands of thieves and other parts of the anatomy for the commission of other offences. We are entitled to assert that certain standards and norms, regardless of cultural differences, should be met.

Miss M. Wallace: Information on Mary Wallace  Zoom on Mary Wallace  Amendments are being made to the Extradition Act to provide for a bar on extradition where there are substantial grounds for believing that if the extradition request is granted, the person might be subjected to torture. For that purpose, “torture” will be defined in the same way as in section 2 of the Bill before the House. The approach of the Bill is in line with our obligations under the UN torture convention in this regard.

The amendment seeks to provide for the refusal of extradition on the additional grounds that there are reasonable grounds for believing that, as well as the person being subjected to torture, he or she may be subjected to any other act or omission by which severe pain or suffering, whether physical or mental, is intentionally and wrongfully inflicted. The amendment does not specify the meaning of “wrongfully” nor does it specify that what is at issue is the behaviour of the state and agents of the state towards the person to be extradited.

Our extradition laws are complex. They arise in the context of international agreements and for these reasons the change we propose is confined to what is necessary to give effect to our obli[344] gations under the convention. We would not be happy to go beyond that. The existing definition is clear that it will permit the refusal of an extradition in a case where there are substantial grounds for believing a person will be tortured by the state to which he or she will be sent in accordance with the internationally accepted definition of torture in the UN convention.

Amendment, by leave, withdrawn.

Section 6 agreed to.

Sections 7 and 8 agreed to.

Acting Chairman (Mr. R. Kiely): Information on Rory Kiely  Zoom on Rory Kiely  Amendments Nos. 12 and 13 are related and can be discussed together. Is that agreed? Agreed.

Mr. Ryan:  I move amendment No. 12:

In page 6, before section 9, to insert the following new section–

“9.–Section 5 of the Refugee Act, 1996 is hereby amended in subsection (1) by the deletion of the words ‘, in the opinion of the Minister,'.”.

There is a peculiar omission in the Bill. The Minister said on Second Stage, in reference to section 6, that the amendments to the Extradition Act arose on account of the requirement in Article 3.1 of the convention that no state shall expel, return or extradite a person to another state where there are substantial grounds for believing that the person would be in danger of being subjected to torture. However, I am not clear where provision is being made for the other requirements of the convention. Article 3.1 of the convention states:

No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

We have dealt explicitly with extradition, but what about expelling or returning somebody? The nearest provision I could find was in section 5 of the Refugee Act, 1996 which is described as “Prohibition of refoulement”. It states:

A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

There is no reference to torture. The first objective of these amendments is to amend the Refugee Act to make reference to the requirement, according to the convention, that a person should [345] not be expelled, returned or extradited to a country where the person could be subject to torture.

The phrasing in section 5 of the Refugee Act is a classic example of parliamentary drafting. It is extremely careful and states that “a person shall not be expelled from the State or returned . . . . . where, in the opinion of the Minister, . . . ”. I have asked a succession of Ministers how one can challenge an opinion in the courts. An opinion is not a certainty or a probability; it is nothing but an opinion. We are entitled to as many opinions as we wish and we are entitled to change our opinions when we wish.

Essentially, section 5 of the Refugee Act provides that whatever the Minister thinks at the time is the fact. I do not see how that provision can be challenged. However, that is not what is sought in the convention. It states that a person shall not be expelled where there are substantial grounds for believing the person would be subject to torture. Amendment No. 12 seeks to remove the phrase “in the opinion of the Minister” and amendment No. 13 seeks to substitute the phrase:

‘or there is a risk that the person would be subjected to torture (whether or not torture within the meaning of the Criminal Justice (United Nations Convention against Torture) Act, 1999)'.

The section would then read “A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where the life or freedom of that person will be threatened on account of his or her religion, nationality, membership of a particular social group or political opinion.”. It would also insert the provision “or there is a risk that the person would be subjected to torture.”. I see no mention in the Bill of the prohibition of the convention on expelling or returning people to countries where they would be at substantial risk of torture. That is why I move this amendment.

Miss M. Wallace: Information on Mary Wallace  Zoom on Mary Wallace  Section 5 of the Refugee Act, 1996, contains a provision preventing the return or expulsion from the State of a person “to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.”. That reflects Article 33 of the Geneva Convention on Refugees.

Section 5 of the 1996 Act goes further than what is required by the convention because subsection 5 (2) makes it clear that a person is not to be returned if “in the opinion of the Minister, the person is likely to be subject to a serious assault.”. Article 3 of the UN Convention Against Torture provides that:

1.No party shall expel, return or extradite a person to another State where there are substantial grounds for believing he would be in danger of being subjected to torture.

[346] 2.For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

There is a valid question to be addressed as to whether the Bill contains appropriate provision to give effect to Article 3 of the UN Convention Against Torture. On extradition that is beyond doubt, in the light of the specific prohibitions on extradition in section 8 – extradition will be refused where there are substantial grounds for believing that if the request were granted the person may be subjected to torture.

The Bill, as drafted, does not contain any provision on the return of asylum seekers. It is arguable, given the broad definition of the grounds under which a person cannot be returned in section 5 of the Refugee Act, that the matter has been addressed already. The amendments raise the question of whether it would better to address the issue specifically by reference to definitions contained in Article 3 of the convention. I am prepared to examine the matter before Report Stage.

There are two difficult aspects to the amendments. The decision making authority must be specified and amendment No. 12 would remove that specification. The definition of torture related grounds goes beyond what is required by Article 3 of the convention. The convention refers to there being substantial grounds for believing a person would be in danger of being subjected to torture and lists some of the circumstances to be taken into account. Amendment No. 13 refers to a risk that the person will be subjected to torture. There is a risk that a person will be subjected to torture anywhere in the world. Anyone could claim the existence of such a risk to prevent being returned to a country.

The amendment also refers to a risk of torture, regardless of whether it is torture within the meaning of the UN Convention. That would mean there would be no definition of torture at issue, which would be impractical.

We will consider before Report Stage if amendments are desirable to put beyond doubt what the Senator is trying to achieve, and to ensure we have covered in our law the grounds contained in Article 3 of the UN Convention Against Torture.

Mr. Ryan:  I am glad the Minister concedes there is an issue to be examined. Extradition, however, is a judicial procedure in which a court must make a judgment. We are saying to the courts that where there are substantial grounds for believing a person would be subjected to torture, he or she will not be extradited. We all agree with that. Why should there not be a similar objective evaluation of the circumstances when a person is being expelled? Why should we retreat from a judicial decision made on the basis of [347] information provided by all the parties involved to the opinion of a Minister? I do not accept the phrase “no State party shall expel, return or extradite a person where there are substantial grounds for believing” subject to the criteria of Article 3.2. Those are not the only criteria, but they need to be examined.

The Minister's opinion is not much of a substitute. An opinion is the loosest of a succession of phrases I have seen in legislation. It gives the broadest scope to the Minister to make up his or her mind according to how he or she feels about something. In the Data Protection Act it was included to protect sensitive security information and it appears regularly. It is difficult to envisage circumstances under which there could be a judicial review of the Minister's opinion. If the Minister of State comes up with a phrase along the lines of our simple requirement to delete “in the opinion of”– it would then read “where the life or freedom of that person or the person who is subjected to torture”, – that would be fair enough.

I am not aware of judicial evaluation of opinion; the problem with legal opinions is that there are as many as there are barristers. It is not a satisfactory position. There are two issues indeed, the burden of evidence a Minister must have to return someone to a country in spite of a plea of a risk of torture, and the definition of torture, which the Minister suggests may not be as clearcut as it should be in our amendment. I am prepared to listen to the Minister on that.

There is no distinction in the UN convention between the terms expel, return and extradite. Perhaps, because of historical sensitivities in this State, we have made extradition explicit. We are back into the area of refugees and asylum seekers. On that issue the Department has not distinguished itself. It has been secretive and untransparent. It has not been prepared to allow the Refugee Act its independence and has distorted the position of the United Nations High Commission for Refugees by misquoting it. It quotes the commission as saying Ireland is a model for the world, when the commission said that the Refugee Act is a model for the world. The joke is that most of that Act is not in operation. That is a quite serious distortion of the position by the Department. What is emerging here is the traditional Irish sensitivity about extradition and, regrettably, the traditional Department of Justice secretiveness and wariness of any rights for asylum seekers or refugees.

The convention is quite explicit. There is no distinction between extraditing, expelling and returning. These are three things we are not supposed to do, and one is covered perfectly well by the Bill. The others are fudged and fuzzed over in the classic tradition of the Department of Justice, Equality and Law Reform in the matter of the treatment of refugees and asylum seekers. It will be a breach of the spirit and letter of the convention if we do not make the protection of people [348] from being expelled or returned as explicit as the protection of people from extradition.

Amendment, by leave, withdrawn.

Amendment No. 13 not moved.

Government amendment No. 14:

In page 6, before section 9, to insert the following new section:

“9.–The Schedule to the Bail Act, 1997, is hereby amended by the insertion after paragraph 30 of the following paragraph:

Miss M. Wallace: Information on Mary Wallace  Zoom on Mary Wallace  The purpose of this amendment is to provide that the new bail regime, as provided for in the Bail Act, 1997, will apply to offences under this Bill. Under that Act, bail may be refused to a person charged with a serious offence where it is considered necessary to prevent the commission of a serious offence. Serious offences are defined by reference to a Schedule in the Act. It is considered appropriate that the offences created by the present Bill should be regarded as serious offences for bail purposes, and this amendment provides accordingly.

Amendment agreed to.

Acting Chairman:  Amendment No. 17 is consequential to amendment No. 15, and they may be taken together by agreement. Is that agreed? Agreed.

Mr. Ryan:  I move amendment No. 15:

In page 6, subsection (2), line 27, after “1984” to insert “the text in the English language of which is set out for convenience of reference in the Schedule to this Act”.

I will explain my silence on amendment No. 14 because in a previous incarnation I campaigned against the bail referendum, so I want to keep my mouth shut on amendments thereto. I have to live with the consequences of my recent decisions, so I am saying nothing about amendment No. 14.

I was surprised, as it was not my experience in the past, that the convention was not incorporated in the Schedule. The convention was incorporated into the Data Protection Act, so the purpose of these amendments is to incorporate the full text of the convention into the legislation. I know it is tedious, and I apologise through the Leas-Chathaoirleach to the staff who had the job of typing this up. I took this for granted and was surprised when this was not there.

[349]Miss M. Wallace: Information on Mary Wallace  Zoom on Mary Wallace  I am fully in agreement with the purpose of these amendments. It would be convenient for people consulting the legislation to have the text of the UN convention in the Schedule, and my officials have discussed this with the parliamentary draftsmen since the amendments were received. We have been advised from a drafting point of view that technically there would be a more appropriate way to achieve what these amendments set out to achieve, which would involve referring to the Schedule in the definitions section of the Bill. The draftsman is working on amendments to this end and, on that basis, I ask Senator Ryan to withdraw his amendments as other amendments will be brought forward on Report Stage to deal with this issue.

Mr. Ryan:  I thank the Minister of State.

Amendment, by leave, withdrawn.

Section 9 agreed to.

Section 10 agreed to.

Mr. Ryan:  I move amendment No. 16:

In page 6, subsection (2), line 34, after “day” to insert “not later than 3 months from the passing of this Act”.

In the light of one's experiences of the Refugee Act, one cannot accept anything from the Department of Justice, Equality and Law Reform that does not have a time limit. The Refugee Act was one of the most enlightened, forward looking pieces of legislation and would have made this State a beacon to the world in dealing with the difficult problem of refugees and asylum seekers, but the Department has buried it. I therefore ask for a time limit beyond which this legislation will automatically come into force. In principle I do not like legislation that does not have a time limit.

I am disappointed it seems possible that legislation can be left to one side. The 1981 Mental Health Act has been on the Statute Book for the best part of 20 years, and there is a Roads Act somewhere which would have made local authorities responsible for damage caused by bad roads that never came into force either. I am not suggesting that we will reach that stage with this Bill, but I do not understand why relatively innocuous legislation like this – in terms of its impact on domestic law – cannot have a reasonably short time limit. If the Minister of State says six months I would not be pushed but if she said one month I would be delighted. However, a time limit is a good idea.

Miss M. Wallace: Information on Mary Wallace  Zoom on Mary Wallace  Regarding the Refugee Act, as Senator Ryan has mentioned it, the Minister expects to be in a position before Easter to bring forward Government proposals for a short [350] amending Bill which will enable him to make the Refugee Act, 1996, fully operational. The difficulty is that when the Bill was passed there were 300 to 400 applications for asylum per annum but the figure was almost 5,000 last year. Under the Act individual applications had to be considered personally by the Refugee Applications Commissioner and, where applicable, the appeal had to be heard by a five person appeal board. That is the difficulty.

Regarding this amendment, we are all anxious to see this legislation's provisions brought into force. The purpose of the amendment is to ensure that the Minister makes the necessary commencement orders within three months of the enactment of the Bill. We have looked at the commencement section and, on further consideration, we believe it would be possible, with the exception of section 9, to include an amendment that all other sections of the Bill would come into force once the Bill is enacted, which is even earlier than the three month period mentioned by Senator Ryan.

The difficulty with section 9 is that it refers to immunities that are accorded to members of the committee against torture and there is a doubt whether it would be appropriate to bring that into force before we have ratified the torture convention. Obviously there will be a short time lag between the enactment of the legislation and the ratification of the convention. We will look at this matter before Report Stage with a view to bringing forward an amendment that would bring most of the legislation into force even more quickly than is envisaged in the present amendment. I hope this is to the Senator's satisfaction.

Mr. Ryan:  I thank the Minister of State.

Amendment, by leave, withdrawn.

Section 11 agreed to.

Amendment No. 17 not moved.

Title agreed to.

Bill reported with amendments.

Report Stage ordered for Wednesday, 24 February 1999.

Sitting suspended at 4.10 p.m. and resumed at 6 p.m.


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