Don Lydon (Fianna Fail)

On 21 November 2005, the Secretary General of the Council of Europe, Mr. Terry Davis, wrote to the governments of all of the member states of the Council of Europe. Exercising his powers under Article 52 of the European Convention on Human Rights, the Secretary General sought from each state an explanation of "the manner in which its internal law ensures the effective implementation" of certain provisions of the convention. This was done against the background of, and I quote:

. . . recent reports suggesting that individuals, notably persons suspected of involvement in acts of terrorism, may have been apprehended and detained, or transported while deprived of their liberty, by or at the instigation of foreign agencies, with the active or passive cooperation of High Contracting Parties to the Convention or by High Contracting Parties themselves at their own initiative, without such deprivation of liberty having been acknowledged.

There are two parts to this request. The first part asks for an explanation of the adequacy of domestic law relating to unacknowledged deprivation of liberty and the activity of foreign agencies. The second part asks whether any public official or "person acting in an official capacity" has been involved in any unacknowledged deprivation of liberty during the period since 1 January 2002.

The actions of all persons in the territory of Ireland are governed by Irish law, including those relating to the deprivation of liberty. Irish law confers specified privileges and immunities upon certain representatives of other states and international organisations, which could present a procedural bar to the enforcement of Irish law against such persons. These are diplomats and representatives of some international bodies which are given special remission. In addition, Heads of State and Ministers for Foreign Affairs enjoy immunity while on Irish territory.

It is appropriate to outline the controls which exist in respect of the acts of officials of foreign agencies who transit Irish territory by aircraft. The law applicable to both civil and state aircraft is somewhat different. With regard to civilian aircraft in flight, Ireland's competence to exercise jurisdiction in cases of criminal offences committed on board foreign civilian aircraft is governed, as regards aircraft in flight, by the 1963 Tokyo Convention. Article 4 of the convention allows Ireland to exercise criminal jurisdiction inter alia in respect of such offences committed on Irish territory.

When the aircraft is not in flight, the Tokyo Convention places no restriction on Ireland either investigating or claiming jurisdiction to prosecute in respect of a criminal offence appearing to have been committed on board an aircraft registered to another state. Civil aircraft used by foreign officials which land on Irish territory are not entitled to any state immunity.

With regard to foreign state aircraft, it is a requirement of Irish law that prior permission must be sought for a foreign military aircraft to land on Irish territory. In such circumstances, the foreign military aircraft enjoys immunity from search by Irish officials unless permission is conditional upon the waiver of this immunity. Non-military state aircraft must also, in accordance with international law, seek permission to over-fly or land in Irish territory if immunities are to apply. If a person, who is believed to have committed an offence in Ireland, leaves the aircraft, he or she can be arrested, charged and prosecuted, including for a crime committed against an Irish person on the aircraft, or an international crime, wherever committed.

Article 40.4.1° of the Constitution provides that "No person shall be deprived of his personal liberty save in accordance with law". Under Irish law the deprivation of a person's liberty can only take place in defined circumstances. There is no concept in Irish law of a detention, which is simultaneously both lawful and secret. Irish law provides numerous mechanisms to prevent an unlawful deprivation of liberty.

There are only two circumstances in which Irish law permits lawful deprivation of liberty by foreign agents in Ireland and where the authorities of another State can detain a prisoner on Irish territory. Section 40(1) of the Extradition Act 1965, permits the transit through Irish territory of a person being conveyed from one country to another, pursuant to an agreement in the nature of an extradition agreement. In such a case, the transit must be consented to by the Minster for Justice, Equality and Law Reform, and is subject to the relevant extradition provisions and any condition the Minister thinks proper. The Ireland-US extradition agreement of 2001 additionally permits detention of prisoners by officials of the United States as they pass through Ireland. However, the agreement at Article XV requires the consent of the State for each such transit.

The Minister for Justice, Equality and Law Reform may also consent to the transfer of a sentenced prisoner through Irish territory pursuant to the Convention on the Transfer of Sentenced Persons 1983, when he is satisfied that Article 16 of that convention is applicable. It is not lawful for the Minister or the State to consent to the transit of a prisoner through Irish territory other than in the two circumstances I have outlined. All detention, whether secret or otherwise, which does not have the positive authorisation of law in the State, constitutes the criminal offence of false imprisonment.

Section 33 of the Irish Air Navigation and Transport Act of 1988 provides that in a case where it is suspected that a crime is being committed on a civil aircraft, an authorised officer, which includes a member of the Garda Síochána, may, in the interest of the proper operation or the security or safety of an aerodrome, or the security or safety of persons, aircraft or other property thereon, arrest without warrant any person who assaults, or whom he or she reasonably suspects to have assaulted, another person.

Section 49 of the Irish Air Navigation and Transport Act 1998 provides for an authorised officer to enter an aircraft in an Irish airport when he considers it necessary for the purpose of exercising any power conferred upon him by, or under, this Act, or the Act of 1988. Section 49(3) provides that the authorised officer may, at any time, require the operator or registered owner of the aircraft to produce for inspection by him such documents, relating to the aircraft or passengers or goods on board the aircraft, as he may require; or inspect the aircraft for the purpose of ensuring compliance with the relevant legislation.

The availability of habeas corpus application, the procedure for which is set out in Article 40.4.2° of the Constitution, provides a mechanism by which all forms of unlawful detention can be judicially challenged. This remedy is supported by the unenumerated constitutional right to communicate with the court for the purpose of making this application.

When the request of the Secretary General refers to the possibility of the involvement in unacknowledged deprivation of liberty of any public official or person acting in an official capacity either by action or by omission, it raises two questions. Investigations have confirmed that no unacknowledged deprivation of liberty has occurred in any of the State's detention facilities as a result of an act of a public official or other person acting in an official capacity. Similarly, investigations have revealed no instance of unacknowledged deprivation of liberty to have occurred in any of the State's detention facilities as the result of an omission of a public official or other person acting in an official capacity.

The Government is fully aware of its obligations to prevent involvement by omission in the unacknowledged deprivation of liberty, and to fulfil all its positive obligations in respect of this matter. As far as the Secretary General's request is concerned, the issue arises largely in the context of the transport of any individual while so deprived of their liberty, which has become known as "extraordinary rendition". When the Government became aware in 2004 of allegations regarding extraordinary rendition, urgent contact was made with the United States authorities, through both the US embassy in Dublin and the Irish embassy in Washington, to ensure that the Irish position was fully understood and respected.

The Government sought and received assurances that prisoners had not been, nor would they be, transferred through Irish territory without the express permission of the Irish authorities. It was made clear that in conformity with the relevant domestic and international law, permission would not be granted for the transit of an aircraft participating in an extraordinary rendition operation or for any other unlawful act. The US authorities' assurances were subsequently reiterated in a number of meetings throughout 2005 and they were confirmed at a bilateral meeting in Washington D.C. between the Minister for Foreign Affairs, Deputy Dermot Ahern, and the US Secretary of State, Ms Condoleezza Rice, on 1 December 2005. They have been repeated at several meetings since. The Government accepts these assurances, which are of a particular clarity and completeness. They are factual and in no way qualified by any reference to the circumstances in which, or the purpose for which, any hypothetical prisoner might be transported.

The Government has carefully considered the value of these assurances having regard to its obligations under the convention. It is satisfied it is entitled under the convention to rely on clear and explicit factual assurances given by the Government of a friendly state, on a matter which is within the direct control of the Government. Notwithstanding the US assurances, investigations have taken place, two of which were forwarded to the Director of Public Prosecutions. In neither case was any charge made.

The Government has fulfilled all of its positive obligations in respect of preventing unacknowledged deprivation of liberty, particularly with respect to any possible transport of individuals while deprived of their liberty. There is, therefore, no question of any public official or person acting in an official capacity being involved in such activity by omission.

In no circumstances would the unacknowledged deprivation of liberty be legal in Ireland. In this respect, all of Ireland's obligations in respect of the European Convention on Human Rights are fulfilled. On 10 November 2005 the Minister for Foreign Affairs, Deputy Dermot Ahern, made clear the Government's very deep concern over allegations of the possible existence of secret prisons. On 14 December 2005, he recorded the Government's complete opposition to the practice of so-called extraordinary rendition. A thorough examination of practice throughout the State in response to the Secretary General's request has revealed no indication of the occurrence of either unacknowledged deprivation of liberty, or the transportation of any individual while so deprived of his liberty. This is entirely in keeping with the Government's stated position on the matter.

Therefore, I see no reason for the establishment of a committee at this time. I have absolute faith in the Government and the Garda to investigate such matters if necessary. In response to a pervious speaker, who referred to the US not being a friendly state, I say when the chips are down we call on Uncle Sam.