Michael McDowell (Dublin South East, Progressive Democrats)

Section 2 of the Bill provides that it applies in regard to sentences imposed before or after the passing of the Act. The idea that the High Court could disapply it where it would be unjust to apply it raises a series of questions as to by reference to what does the term "unjust" mean. If it were by reference to some constitutional principle, under the canon of construction, there is a presumption of constitutionality and the Act would be construed in some way so as to exclude something, the result of which would be unconstitutional. If the injustice is sub-constitutional or simply on balance fair rather than less fair or something like that, then it gives the High Court an undesirable discretion and makes the law uncertain in a sense that is not required by constitutional principles or the like.

The same applies to the European Convention on Human Rights. As we know, the courts are directed to interpret legislation, whether passed before or after the enactment, in a manner compatible with the convention, if at all possible, and I have no doubt they will do so. I am not clear in my mind that there is a problem here or that giving the High Court that provision will do anything other than introduce a new uncertainty and a cause of argument which is not particularly needed.

In regard to amendments Nos. 26 to 28, inclusive, the official amendment is a significant one because it provides that the safeguards available under the European Arrest Warrant Act 2003 and under the Extradition Acts also apply to cases under this Bill. Section 9(2) lists a number of specific matters the High Court must take into account before making an order committing the person to prison. The Bill, as currently framed, does not contain any express general provision granting a wider discretion to the High Court on whether to order the enforcement of the foreign sentence in Ireland. This is being left to the inherent jurisdiction of the court.

As the provisions in the Bill can be seen as an alternative to extradition, that is, a sentencing country can seek a person's extradition or request the enforcement of the sentence, it is now being explicitly stated that the protections available under the European Arrest Warrant Act 2003 or the Extradition Acts will also be available to persons subject to proceedings under the provisions of this Bill. This clarifies the situation and makes it clear that a person is on the same footing regardless of whether he or she is subject to an application under this Bill or to an extradition or surrender request.

Accordingly, the court, in addition to the specific matters already listed in section 9(2), must also be satisfied that if the person's surrender had been sought under the European Arrest Warrant Act 2003, the surrender of the person would not be prohibited under Part 3 of that Act. There is a corresponding provision in regard to Extradition Acts. In other words, the same protections apply here as in the case of the European Arrest Warrant Act.

I have noted several of these protections and they include adherence to the European Convention on Human Rights and its protocols as well as numerous protections relating to ethnic origin, religion, sexual orientation, nationality and the like. I am aware of comments made by the Human Rights Commission on the Bill, particularly in regard to the application of the European Convention on Human Rights and its protocols. I am sure this amendment will address many of those concerns. I might add that the safeguards in Ireland's legislation on the European arrest warrant are recognised as among the strongest in any member state of the European Union. As a result of amendment No. 28, those safeguards now apply under this Bill.