Jonathan O'Brien (Cork North Central, Sinn Fein)

I would like first to apologise for being late. I am having one of those days where I wish there were an extra four or five hours in it. I am sure the Minister has had many such days, but I apologise for missing the start of his speech. From listening to it on the monitor and from what I gathered when I arrived, I know the purpose of the Bill is to expand the provisions of the original European Arrest Warrant Act 2003 to states other than those designated EU member states. I am sure the Minister is aware that when the original Bill came before the House, our then spokesperson on justice, Deputy Ó Snodaigh, opposed it for several reasons. At the time we raised a number of concerns about the Bill which we felt needed to be addressed for us to give it our support. Unfortunately, they were not forthcoming as the Bill progressed through the House. As a result, we opposed the original Act in 2003, as I am sure we opposed the two further amendments in 2005 and 2009. I can see the Minister smirking and I am sure he is asking what is new there.

From speaking to Deputy Ó Snodaigh about this Bill and from doing my own research on it, I know that some of the concerns raised back then were raised by a number of organisations, including the Irish Human Rights Commission. The commission produced a position paper and furnished it to the then Minister for Justice, Equality and Law Reform in 2003, raising some of the concerns it had with the Act. The commission believed the original Act diminished some of the protections for individuals regarding extradition, and in some cases could violate their human rights. The commission was correct to put those concerns forward and to relay them to the Minister at the time. The commission also believed the EU framework decision which gave rise to the European arrest warrant was based on a flawed presumption of effective and equivalent protections of accused persons' rights between EU member states. At the time, we agreed with that assessment and we still agree with it today.

I know the Minister has moved to address some of the concerns in this Bill and he has indicated some of the amendments he will put forward. That said, the system as constructed currently is flawed. There is room for improving the whole European arrest warrant system. I am sure the Minister will disagree with that analysis, but it is important to point out that in the absence of any human rights proofing of legislation, we can only assume that the fundamental rights of individuals could be compromised. The Minister will argue probably that we are looking at some technical changes to the original Bill, and that there is really not much to worry about, but we must look at the system as it currently operates. There is no doubt the current system is very rigid in its operation. For the system to be effective, we must place full trust in the standards and procedures of other EU states and, if this Bill is passed, in third party states. We are in favour of working with other states, and in the interests of public safety and justice, we need to address some of the concerns raised about how the European arrest warrant system is operated.

The current system is neither robust enough nor human rights centred. Therefore, bringing in any legislation which proposes to extend it beyond designated EU states is wrong. We would be better off spending our time trying to fix some of the flaws in the current system. The Minister will probably not take my word for that, but in March 2011, Mr. Thomas Hammarberg, the Council of Europe commissioner for human rights, described the overuse of European arrest warrants as a threat to human rights:

There has, however, been repeated criticism of the manner in which the EAW has functioned in a number of concrete cases.

This criticism must be taken seriously. Human rights organisations have expressed concerns about the imprisonment of innocent persons, disproportionate arrests, violations of procedural rights and the impossibility in some countries for an innocent person to appeal against a decision to be surrendered. The problems appear to have worsened with the increase of the number of EAWs [...]

The EAW has been used in some cases for which it was not intended, sometimes with harsh consequences on the lives of the person concerned. It is thus high time to reform a system that affects thousands of persons every year.

We heard some of the figures from Deputy Calleary. More than 50,000 European arrest warrants have been issued.

Mr. Hammarberg was correct in his analysis. To press home the point, I cite the example of a Polish schoolteacher and grandfather who lived in Bristol. A European arrest warrant was issued for him to face trial in Poland on a charge of theft, dating to his withdrawal of money from bank over and above his agreed overdraft limit. We would all agree that the framework decision was not intended to deal with cases such as this.

The European Commission, in its third implementation report, acknowledged that there were serious problems with the European arrest warrant system and made a number of recommendations to remedy its defects. For Sinn Féin to support the Bill we would have to see some changes to it. There would have to be a guarantee that the current elements of unfairness would be eradicated and that the rights contained in the European Convention on Human Rights and the Charter of Fundamental Rights would be compatible with any system related to European arrest warrants.

For this to occur, there would need to be a number of changes. We would need to introduce a measure to prevent the misuse of European arrest warrants, especially for minor offences. We would need to introduce a proportionality test for assessing the warrants to prevent the possibility of an infringement of the human rights of the individual being sought. We would also need to allow states to refuse a surrender when it is felt that the fundamental rights of the individual are not guaranteed. The system must be constructed in order that the surrender of a person subject to a European arrest warrant can be deferred until the issuing state is trial ready. People must not be compelled to spend unnecessary time in pre-trial detention.

The original framework decision on which the European arrest warrant, EAW, system was constructed was based on a flawed presumption that there were effective equivalent protections between member states. In the absence of a fundamental change to the EAW system, there is too much risk associated with it. Last year, members of the European Parliament held a plenary session on this issue. The consensus of the session was that while EAWs were a vital tool in combating cross-border crime, there was an urgent need to reform how the system operated in the interest of justice. Fair Trials International has termed the scope of the current EAWs as a controversial no-questions-asked system which has removed traditional safeguards against unfair extradition. It would be a grave mistake to allow this extremely flawed system to be expanded beyond the borders of the EU without first addressing some of the concerns raised, not only by Sinn Féin but also by the Human Rights Commission, Fair Trials International, the Council of Europe Commissioner for Irish Human Rights and by MEPs in the plenary session of the European Parliament when it debated the system last year. We need to address some of those concerns.

While Sinn Féin is opposed to the Bill and will attempt to amend it, we agree that a system is needed to allow the extradition of individuals from one member state to another. However, such a system must be robust and human rights compliant. If it is not, it will lead to miscarriages of justice. We will have to address this issue as the Bill progresses through the Houses.

Proportionality is recognised, rightly, as a fundamental principle of EU law and it must be applied to the European arrest warrant system. Without the application of standard proportionality tests the system will continue to be abused. While we recognise the need to introduce measures to address cross-border crime, this cannot be done at the expense of human rights. That is where we differ from the Minister. We need legislation that is sufficiently robust to deal with those who engage in international crime and use borders to escape justice, but we cannot compromise the human rights of individuals to find an easy solution to this problem.

In his opening speech, the Minister alluded to the fact this process was rushed at the beginning and a review is now taking place. We welcome that. I hope there will be an opportunity for Opposition parties to contribute to that review, to give our opinions and propose possible solutions. If there is, we will be more than happy to contribute to that process.

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