Michael D Higgins (Galway West, Labour)

I welcome the opportunity to contribute to the debate on the Criminal Justice (Mutual Assistance) Bill 2005. I am encouraged to speak more widely about the criminal justice system, given what I think is the appropriate philosophical tolerance that was given to Deputies who spoke earlier, and rightly so, as they are concerned about crime and the response to it in contemporary conditions. Nevertheless, I will try to stay within the terms of the Bill.

It would be a great pity if, in discussing this legislation or any other that emanates from the Department of Justice, Equality and Law Reform, we were invited to make a distinction between human rights and good law. Human rights is not soft law but is the bedrock of good law. We should not be invited to make a choice between enforcement on the one hand and the protection of human rights on the other. It is important to stress this point because there was a suggestion in some of the speeches that this Bill, along with others, is a sufficient response to contemporary conditions and that one can return to it, as it were, in better times. This is not an appropriate view, frankly. All temporary legislation of the criminal law kind is bad legislation in the end. It may be justified at times in the name of emergency legislation but we have quite an inglorious record of allowing emergency legislation to exist for half a century or more. One then wonders if one's normal condition is one of continuing emergency or one of being able to have law based on fundamental principles.

I wish the Department of Justice, Equality and Law Reform well because it is responsible for approximately one third of the proposed legislative programme. If one examines the recent proceedings in Geneva with regard to other legislation that will be required of the Department in such areas as the protection of the child, the Department will be even busier than heretofore. The long list of unratified United Nations conventions, which the State has yet to legislate for also falls as a burden on the Department of Justice, Equality and Law Reform. All of this makes one wonder if sufficient resources are available to enable it to meet its legislative obligations. Legislation is insufficient with regard to the protection of the child, as the Geneva meeting pointed out this week.

As a former member of the McBride commission which examined Irish prisons, one of the sad aspects for me of speaking on this area is that referring to rights in prisons has become unfashionable. It is perceived by many Members in this and the other House as unimportant. There are no votes in it and thus it has become a matter of rights that can be let go. The conditions in our prisons are a scandal. We had the McBride report, although the commission was referred to as a self-appointed group by the Minister of Justice of the day. It was succeeded by the Whitaker report. We have been promised fundamental autonomous administration of the prisons but what is taking place is a scandal. Where there is multiple occupancy, there is little control over drugs and there are few guarantees regarding personal health and very poor remedial programmes. The suspension of work training programmes must also be considered and all these issues comprise the practical reason I say the conditions are a scandal. It is also a kind of scandal that we are not able to have this discourse publicly because it is assumed this is a subject about which one should not speak.

Deputy after Deputy spoke about the importance of having transparent, accountable and adequate policing in the community and they were correct in doing so.

On the question of young people, the fact the juvenile liaison scheme did not enjoy sufficient status within the thinking of the Garda Síochána is a matter for concern. At another time and in another way, I will raise the matter of an investigation into the terms according to which a scheme aimed at young offenders was suspended in my constituency more than a year ago. An investigation was carried out into why this occurred and a report was prepared but we are now told by the Minister for Justice, Equality and Law Reform that it is not to be published. This again demonstrates a scandalous lack of transparency. I refer to the Bris project in the west side of Galway city.

I notice very little concern, at public or departmental level, over the implications of large numbers of unaccompanied minors simply going missing after coming to Ireland. I remember dealing with some of these young people, who were being allowed education but in the knowledge that as they prepared for the leaving certificate they qualified for consideration for deportation. A number of the unaccompanied minors have gone missing and it would be useful if the Minister, in replying to this debate, outlined the procedures instituted to protect them. The number of unaccompanied minors can be calculated simply on the basis of the number originally in the care of different health authorities.

Let me turn specifically to the Bill. With its nine parts and 89 sections, it raises a number of issues. It is correct and appropriate to have mutual assistance in combating criminality. It is sometimes not acknowledged by those advocates of globalisation that the real beneficiaries of the electronic age are those in the drugs industry and international finance, as is evident from Manuel Castell's three-volume work on the subject. Money can be moved in real time and the speeds of movement of hot money and migrants have been entirely different. This raises interesting international legal issues, such as the manner in which one responds to the fact the drugs industry and those who handle hot money are always ahead of the international enforcement agencies.

Let me be positive and say I support such legislation as would enable the balance to be redressed in this regard. However, I note the associated problem. The views of those who seek from us our co-operation in bringing new legislation into being are entirely misplaced if they contend that because we suggest such legislation be crafted within the context of international law, we are somehow being tardy or less than full in our support.

If one considers human rights law, which emerged particularly strongly from the end of the Second World War when it responded to the nadir to which human behaviour fell, and the international conventions, even those of the 1990s, to which we subscribe, one will note we are not talking about separate streams but about something which is very worthy, that is, the attempt to try to find universal principles to which people with different legal systems might subscribe and which, ultimately, might lead to some principles of universality.

The Minister for Justice, Equality and Law Reform subscribes to some of what I am saying but regards the Irish Constitution as the boundary beyond which he will not go. He is inclined occasionally to posit the superiority of constitutional protection over international legal protection. This arises in one circumstance after another and there is no doubt it will be repeated when we come to consider the request being made that Ireland have adequate constitutional protection of the rights of the child.

I can be specific in respect of different sections of this legislation and we can discuss them in detail on Committee Stage. One section refers to the United Nations Convention against Corruption. Last Monday week, a White Paper on overseas development aid was launched and it correctly makes the point that aid donors are anxious that their aid not be abused by corrupt recipients and so forth. However, there is not a single line in the White Paper that commits Ireland to ratifying the United Nations Convention against Corruption. It is in the legislative programme circulated this week and it is listed for 2007.

The ideological argument people make about this matter is that one should get on with the business of ratifying these conventions. In the speech introducing Second Stage of this legislation, it is assumed there is no great difficulty in preparing the necessary compliance legislation. If this is the case, one must ask why there is a delay in ratifying the convention. These matters will no doubt feature in the reply to this debate.

The balance that I suggest should exist between the rights of the citizen and international legal co-operation and mutual assistance is very important. In the later sections of this voluminous Bill, there is a reference to the Ireland-United States agreement. Section 3 offers a definition of "torture" in which it is suggested it has the meaning given to it by the Criminal Justice (United Nations Convention against Torture) Act 2000. I am not sure whether reference is made to the optional protocol. We can consider this on Committee Stage. It is very clear that in the United States, Senator McCain and others have made a very fine defence of the definition in the UN convention, but it is clear there is no agreement within the current Administration of the United States and the European Union regarding what constitutes torture.

Reference is made in the Bill to the European Union-US agreement. We must consider this on Committee Stage because it is not at all clear what has been agreed by way of final content in respect of international protections of the person. There are issues of compatibility to be considered and they run far deeper than the textual references I have made. I refer to entirely different systems from different streams of jurisprudence. For example, the investigative procedures on the Continent regarding many different countries, whereby a person can be detained indefinitely without such guarantees as exist under the Irish Constitution, are obvious.

It is very clear the relationship between mutual assistance and the system that prevails in Britain has been one of the black negatives in the record of outgoing Prime Minister Blair in that he and his Administration have systematically sought to erode the protections of rights under the European Convention. A lay person considering this might ask the nature of that to which we are being required to give assent by mutual assistance. Do they ask us to share intelligence with those who refuse to offer absolute guarantees under international conventions regarding the degrading or inhuman treatment of prisoners? Do they ask us to share intelligence regarding matters of arbitrary detention without trial? Regarding the drafting of this legislation, the concept of a judicial review of some sections was conceded under pressure in the Seanad. We must be very careful how we approach this legislation.

I say all that to be of assistance. I hope we will eventually reach a point where we have restored the relationship between human rights and law. It is deplorable that those who make human rights cases are somehow regarded as being soft on crime when nothing could be further from the truth. What we want is something that precedes the human rights movement in law, namely, certainty. We can have that when we have principles shared across different legal systems and states.

I found it interesting that the last speaker from the Government side, Deputy O'Donovan, should suggest that he has almost an ideological difficulty with the concept of a constitution other than our own. While its content is important, widespread acceptance of shared European — or universal — human rights principles would be very welcome. That will be very difficult to achieve. For example, regarding rights, does one argue for them based on a rational tradition regarded as the Western, post-Enlightenment system, or does one take into account the revealed source of human rights, which is the position in many Islamic countries? I am aware of the difficulties in those debates, but human rights are not a concession. They are at the very root of good law, domestically, at European level, and internationally.

I need to say that because of we are in an atmosphere to which the Government spokesperson on Second Stage did not refer. In international law, the principle of pre-emption has been accepted regarding, for example, the disciplines imposed by the United Nations in that one may play fast and loose with the notion of defence and reasonable preparation in anticipation of an attack. The Bill defines such matters as extradition in section 2. We have witnessed a period of the most widespread abuse through extraordinary rendition.

We can go into this in detail on Committee Stage, but practically what I ask is why there are not prefatory statements before sections indicating that whatever is proposed will occur within the context of international law. It is occasionally stated. I believe that the Minister of State, Deputy Batt O'Keeffe, in introducing Second Stage, referred to protections under the European Convention on Human Rights. However, we need specific guarantees that regarding enabling provisions, the process, or the consequences of sections of this legislation being implemented there will not be any departure from full compliance.

What is compliance? That question arose in the questionnaire on extraordinary rendition sent by the Council of Europe to the Government. We sent a very complete response, including all the enabling legislation, such as the Traffic Acts and Air Navigation and Transport Acts. However, we did not give the Council of Europe perhaps the most important relevant information, namely, that while we had the Air Navigation and Transport Acts and other legislation, we had not exercised any enabling power thereunder. On that matter, we were silent.

We need certainty, and this legislation will have my support. We should all co-operate and must not do anything that will tip the balance in favour of international criminals. I listen to such people as Deputy Gregory and agree that there are armchair beneficiaries of the appalling drug trade. I am in favour of taking action against those who visit such misery on communities, families and individuals, since a case can certainly be made for that.

However, my other point is that we must achieve certainty by inserting into the text the fact that we operate within a framework of international law, particularly because of the abuse of intelligence systems. We will revisit a real difficulty on Committee Stage regarding under what circumstances and to what degree it is appropriate to use an exchange of intelligence. For example, what questions does one put to the requesting authority to allow the guarantees of which I speak? It may well be that a Government or Minister must ultimately exercise discretion regarding where to strike the balance. However, the principles on which a balance is sought should be absolutely clear.

See this speech in context