Michael McDowell (Dublin South East, Progressive Democrats)

Gabhaim buíochas don Teach as ucht an díospóireachta seo. Bhí sé mar phléisiúir dom an Ghaeilge a chloisteáil sa Teach. Cé nach bhfuil mé chomh líofa le Baill den Teach, caithfimid úsáid a bhaint as an teanga náisiúnta sna Tithe agus an teanga a choimeád beo agus láidir i gcúrsaí náisiúnta an Stáit.

Many points have been made in this debate and it would not be open to me to answer many of them fairly or squarely. For example, Senator Tuffy raised a number of technical points the answer to most of which lies in the basic convention texts from the European Union and elsewhere. We will come back to those points on Committee Stage.

Senator Cummins asked how it is that we have taken this long to get this far. The legislation has been delayed in order to allow for the provisions of three instruments in 2003 to be given effect to in the Bill. They are set out in the Bill. There is also the question of priorities. My Department is currently dealing with 14 pieces of legislation in the criminal law area while 27 EU, UN and Council of Europe instruments are being negotiated. Some of these coincide or overlap, so it is difficult to know whether one should constantly come in with a series of one-off Bills or wait until one has some work accumulated and attempt to deal with a number of instruments in the same area. Second Stage debates in each House take up a lot of legislative time and with regard to mutual assistance the view taken was that it was sensible to wait for an accumulation of instruments to be dealt with in one legislative package. That is what we have tried to do. Moreover, considering the staff numbers in my Department and the number of draftspersons in the Office of the Attorney General, it is not easy to marshall all the resources all the time to produce instant responses to international instruments to which we are party. Nor have I mentioned legislation which I hope this House will shortly see, such as defamation, land law and civil partnership Bills, which are constantly being worked on in different parts of the apparatus of State. One must be a little patient at times although I know that is difficult.

Senator Kett made a good point echoed by other speakers here today. We live in a totally different world. For most of us here, in our lifetime travel was a rarity and those who in any society could expect to travel, apart from migratory travel, were a small elite. We are now in a world of mass transportation. People can move here and there with the greatest of ease. We are also in a different political climate in that people are entitled to travel in a way in which they previously were not. An Irish person is entitled to go to the "costa del crime" or wherever and buy a villa there, which was not possible in the past. There is migration of capital, of enterprise and of workforces. We live in a totally different world and must bear in mind that criminality will transform itself to accommodate and avail of the opportunities which this vastly different globalised transient world affords it. That is our context.

Senator Quinn raised some interesting points about this legislation and said it did not go far enough. His fundamental point is that the legislation seems to be a patchwork of individual responses put together in response to individual issues. For example, within the European Union he sees an analogy with the situation which exists in America. He sees a big political space or area where activity is taking place and he queries if it is possible or even remotely practical in this day and age to live as isolated member states in a European Union.

Senator Quinn made the point that there is now a fashion against integration, or at least a question mark hanging over it for the past couple of years. I acknowledge the force of a number of points he made but ask for the following to be taken into the balance. When one creates a European continental system and all the power the European Union potentially has, then unless one has countervailing mechanisms which are effective, and not just on paper, and a shared concept of the rule of law, and an absolute sense of shared values and methods which are universal, that is a very dangerous enterprise. It is not stated often enough in Ireland that to create a massive European superpower which is not as rooted as the American superpower is in democracy and the rule of law, and with a shared commitment to those values of everyone in the political community which is the United States, would be very dangerous. I ask this House to consider whether we feel the same sense of ownership of the European Court of Justice, or the court in Strasbourg, as the American people do of their Supreme Court and their legal system. The answer must be that we do not. Whether we will or not is different, but we do not.

While one can on occasion be frustrated by different legal systems in the European Union, I do not want to throw the baby out with the bath water. In this country, as in a number of others, we have a constitutional system based on the rule of law, namely, the common law, adversarial justice system involving a Judiciary which is radically different in some respects from the judiciary in a Napoleonic system in being an arbitral Judiciary, a third pillar of the State, manifestly independent of this House. A judge's job is not a career job one takes up at the age of 20 and proceeds upwards to the top like a diplomat in Iveagh House, rather we confer, on people chosen in their 40s, 50s and 60s, huge power to strike down Acts of our Parliament, with one judge sitting one afternoon in a High Court in Dublin.

That is the system used by the Americans, Australians, Canadians and New Zealanders, and to some extent is the one used in the United Kingdom, on which our system and the American system were modelled. When crisis came in democracy in the dark days of the 1930s, when everyone was fleeing from liberal democracy and even the notion of the liberal economic order was regarded as passé, to be thrown aside and when, after the 1920 Wall Street crash, everything was in the valley of darkness, it was the common law system and the rule of law which were the only bulwarks against fascism and totalitarianism of every kind.

People may argue it one way or another but it is a curious fact that even if one looks at countries like India, and our own, it is this hugely powerful judicial influence in a society which has kept it from falling into the hands of one extremist movement or another. If one looks at the Western hemisphere, is it strange that north of the Rio Grande, whatever that area's faults, democracy is deeply rooted, and south of that river the area has been in non-stop crisis for the past 200 years. I make this point to emphasise that we have something here of immense value and should never be tempted to throw it away unnecessarily in order to further the interests of legal efficiency, unless we are equally clear that what we are creating will guarantee us the rights which were the bulwark against despotism and totalitarianism in the past.

Regarding the European project, I believe in the partnership rather than the strongly federalist-integrationist view, but however it develops, it is certain that it could be immensely dangerous unless built solidly on durable, workable, proven systems of accountability and counterbalance because, in the past, Europe has not been signally successful at resisting movements which have got out of hand.

The difference between the experience of the United States and that of contemporary Europe is that in the United States, when the founding fathers went about their business in the late 18th century, even with different variations they had one society, one language, one set of fundamental beliefs even if there were sectarian differences of a small kind among them, and one system of law. That is what they started with. In Europe, we started with a diverse history and language. Most politicians in Europe still cannot understand each other when they speak at a public meeting. They certainly do not understand each other's history, to the same extent as did the colonialists who turned into republic builders in north America.

I am conscious that Europe as a project in the early years of the 21st century is radically different to the building of federal America in the later years of the 18th century. That is not to state that I am hostile to the European Union project. I believe it is unhistorical to see it in the context of an emerging United States of America. If Europe ever moves towards deeper and greater integration, it will do so along a different path. It is unhistoric to view Europe as a parallel with the United States model.

In Europe, we have arrived at the view that we will not have legal uniformity and that the systems will not be the same across Europe. To the maximum possible extent, we will engage in mutual recognition. In the United States, a court is a court and a jury is a jury. There are differences between states but at least a lawyer from one state can walk into a court in another state and know exactly what is happening, even if it is not conducted in precisely the same way as in his or her home state. Czechoslovakia is different to Ireland. It has administrative courts and administrative fines. In some societies, justice is mainly paper driven while in Ireland and Britain, our system is underlined by a direct confrontational adversarial trial process with oral evidence.

My position is not conservative. However, it is cautious in one respect. Senators spoke about the right to silence and inferences being drawn from silence. We must marry our system and concept of rights and values with those of others through the principle of mutual recognition, not through approximation and harmonisation. Our system is not capable of being diluted slightly so as to arrive at the same system as the Napoleonic code. It is not a matter of a little tweaking it here and there to make both systems more or less the same. The systems are fundamentally different in some respects. Senator Kett kindly recognised that what I attempt to do in all legislation I bring before the House is to preserve our concept of constitutional rights, but nonetheless make it compatible with other systems.

I share Senator Quinn's impatience that this may seem to be a series of ad hoc responses to individual situations. That is so. However, if we are to have an FBI for Europe, who will be in charge of it? To whom will it be answerable? What court will control it? When it steps out of line who will bring it back? Many countries in Europe have, in the past, found they were not in a position to do so because their systems did not have at its heart notions such as habeas corpus, an independent Judiciary, separation between the Legislature and the Executive and the right of the Judiciary to bring all of the organs of state, particularly the Executive and policing, firmly under control. Those are the fundamental issues we must consider at some length.

I have strayed from the substance of what we are dealing with but I felt I should do so because Senator Quinn had taken the time to make the point that perhaps this was radically insufficient. I sometimes share his sense of frustration when I deal with these measures. However, I sound this counterpoint to the attractive tune he played. While we must get our act together, what we put in place must be robust, workable and compatible with our values.

The Bill is immensely complex and, I regret to state, will take up much of our time on Committee Stage teasing out issues such as those raised by Senator Tuffy. I look forward to that debate. In the modern world, there is no substitute for providing ourselves some basis on which to request assistance from foreign states, be they in the European Union or not, and conversely, to afford those foreign states our co-operation. When I started at the Bar, I heard about letters rogatory at criminal law lectures but I never believed they happened. Now, they have become commonplace. The real problem is that we must build into our legal, political and administrative culture this absolute obligation to be open to our moral obligation to assist other systems of justice, similar and dissimilar to our own, to function. Otherwise, we create difficulties.

Senator Henry raised a couple of points. She mentioned the question of corruption. Proceeds of crime in Ireland, regardless of whether the crime took place outside or inside Ireland, are subject to the Criminal Assets Bureau. However, building up evidence to prove that a corrupt minister in a particular country received those assets and placed them in Ireland is more difficult. More law must be made and more conventions must be put in place to stamp out corruption, such as making it unlawful for Irish banks to handle the proceeds of corruption abroad or for Irish people to corrupt others or take part in corrupt activity abroad. Some of us may have heard today about the terrible famine in Kenya, and listened to the stories about where much of the money sent by international donors went and how it did not reach the people who should receive it.

The other point raised by Senator Henry was that of trafficking. We have an elaborate code to combat trafficking, particularly regarding people trafficked for sexual exploitation. I fully agree with Senator Henry and I do not use the term "the sex industry" because I do not believe sex is capable of being industrialised. It is not the proper subject of commercial exploitation. That is my view. I claim to be a liberal. On occasion, we make it a commodity in a way which is foolish.

I have major problems with places such as Stringfellows opening in Dublin. However strict the conditions laid down by a judge in a licence application, there will be copycat bodies. Who will police this? Are the gardaí to spend their time checking whether people make physical contact with each other or what they do on these premises? If prostitution does not travel in the same coach on the same train as the commercialisation of sexuality, it is linked a few coaches back. I wonder whether we do ourselves any favours in this regard. When prostitution comes, organised crime is a few coaches back. When the train of commercialised sexuality leaves the station, prostitution comes a few coaches behind and in the guard's van comes organised crime. That train should not be allowed to leave the station. I hope I have said enough, and that being as irrelevant as I have has kept the House happy.