Wednesday, 23 June 2004
Transfer of Execution of Sentences Bill 2003: Report and Final Stages.
I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to discussion on the amendment. On Report Stage, each amendment must be seconded.
Amendment No. 1a is related to amendment No. a1 while amendment No. 32a is consequential. Amendment No. 32b is consequential on amendment No. 1a and all may be discussed together.
I move amendment No. a1:
In page 3, line 22, after "1997" to insert ", the text of which in the English language is set out for convenience of reference in Schedule 1 to this Act".
These amendments are technical. Will the Minister accept them?
I am grateful to the Senator for tabling the amendments but I oppose them. They propose that the full text of the additional protocol and the Schengen Convention should be added as Schedules to the Bill. I do not propose to accept them because the additional protocol does not give effect to the full protocol. While the protocol contains nine articles, only two contain substantive provisions — articles 2 and 3 — and Ireland proposes to operate article 2 only. In those circumstances, it would be inappropriate to schedule the entire protocol when only part of it will be given effect. Given that the main convention was not scheduled in the 1995 Act, scheduling the convention might be odd and might lead to confusion about the exact legal position. Such an outcome would defeat the purpose of the amendment.
The Schengen Convention consists of 142 articles. The Bill gives effect to only three articles, namely, articles 67, 68 and 69, which deal with the transfer of the enforcement of criminal judgments. Furthermore, Ireland is only opting into parts of the convention, such as police co-operation, mutual assistance in criminal matters and extradition. Ireland is not implementing provisions such as cross-border hot pursuit. Scheduling the entire convention, including those parts Ireland will opt into, might give rise to confusion, particularly among those trying to understand our law and who read the Statute Book. If they print the statutes, they might wonder whether this is part of domestic law. If confusion resulted, it would defeat the purpose of the amendment, which I presume was tabled for clarity.
It would be inappropriate to schedule the entire convention to this Bill when we are only dealing with a small part of it. For example, if the amendment were accepted, objects such as cut flowers, chrysanthemums, roses, fresh citrus and so on would go on the Statute Book. It raises a serious question in terms of the purpose of the legislation. It is not necessary to schedule such material to give it legal effect.
I had to pilot through emergency legislation in response to a High Court judgment stating that incorporation by reference was unsatisfactory and all material had to be included in legislation in extenso. Curiously, the Supreme Court decided earlier that the High Court was wrong in the first place. All the fuss was based on a judgment which has eventually been reversed. There is no legal reason for setting out these materials, although this impression might have been created by the High Court judgment, which stated materials cannot be incorporated by reference only. We are in a happier position.
Legislation would be extremely cumbersome if all references had to be incorporated. It would also be difficult to understand and could give rise to higher fees for the legal profession. Are the documents coded using specific references so that later editions would not have to be covered by retrospective legislation?
The documents are original and have been signed and dated. They are not regularly updated, except by other instruments.
Senator Tuffy asked about the policy on annexing or scheduling texts. It is desirable to do so in principle if the terms of a convention are being incorporated into Irish law. In circumstances where somebody is interpreting the Irish provision, he or she should be in a position to consult the original document. It is desirable in principle that one should do so. In this case the Schengen Convention is so extensive and the parts of it we are incorporating are so non-extensive that it would be unnecessary to put all the additional material onto our Statute Book. That would make for a very cumbersome Statute Book, particularly as people would point out that the great majority of it was not applicable to Ireland.
In the circumstances, while I agree with the Senator that in general terms it is desirable that if there is any incorporation by reference then there should be a statement of the material being incorporated by reference or, where it is useful to interpret something, it should be available to somebody consulting the statute, in this case it would be disproportionate to put the entire instrument into a Schedule when only tiny fractions of it are being incorporated into Irish law.
I move amendment No. 1:
In page 3, between lines 25 and 26, to insert the following:
"'relevant authority' means the person designated in the relevant country concerned who performs functions the same as or similar to those performed by the Minister under this Act;".
The concept of a relevant authority is central to the Bill and should be clarified at the outset. I have taken these words out of section 5 as they are more appropriate to the definitions section. The words I propose to delete in amendment No. 5 are clearly more appropriate to the definitions section, which is why I propose they are not removed but relocated in section 2 so the reader can understand the concept of the relevant authority before getting into the detail of the Bill.
I am grateful to the Senator for tabling the amendments, but having considered them, they are not necessary. Section 5(1) already deals in very clear terms with this matter, making it clear who the relevant authority in the sentencing state is, therefore there seems to be no advantage in attempting a definition of relevant authority in the interpretation section. The existing wording in section 5(1) is very clear and the amendment repeats that wording and puts it in the interpretation section. If the substantive section is clear on what it is talking about then it is unnecessary and redundant to repeat a definition in the interpretation section.
I move amendment No. 2:
In page 4, between lines 18 and 19, to insert the following:
"2.—The purpose of this Act includes the giving effect to the following——
(a) Article 2 of the Additional Protocol to the 1983 Council of Europe Convention on the Transfer of Sentenced Persons, and
(b) Articles 67 to 69 of the Schengen Convention.".
It is always useful to find a purpose provision in a Bill. It not only helps us as legislators, it is even more helpful to the lay person, who can then find out the purpose of a Bill by reading one section. I disagree with those who say the Long Title of every Bill expresses its purpose, which is simply not true. An example is the National Monuments (Amendment) Bill 2004, the Long Title of which reads, "An Act to amend and extend the National Monuments Act." A sentence like that is of little use to the reader and tells us nothing of the Bill's purpose. Every Act should have a purpose provision, which is a small step towards making our legislation more understandable, and I ask the Minister to accept this amendment.
I fully accept that every Bill should at some stage state its purpose, but there has been a long tradition that the Long Title of a Bill is the place in which to set that out. The particular example cited by the Senator may be one where it would be desirable to have a more ample statement of the purpose of the Bill in the Long Title or to have a separate purposes section somewhere in the Bill. However, in this Bill the draftsman has stuck to the traditional mode of setting out the purpose of the Bill in considerable detail in the Long Title. In these circumstances it is not desirable to repeat that.
The real question, the policy issue which arises from Senator Terry's observations, which I fully respect, is whether we should have Long Titles at all. If we are to go down that road, why not have a Short Title and a purposes section in every Bill? That is a decision which I am not going to make on the hoof today, as I would have to think long and hard about it. I would want to consult the Attorney General and the Parliamentary Counsel as to whether it was desirable in future to simply have Short Titles and purpose sections in every Bill for the guidance of the reader and the courts. That is too serious a decision for me to express a view on today and I do not want to cause alarm and despondency in the Parliamentary Counsel's office by even hinting at sympathy with the Senator's suggestion. It occurs to me that the practical situation is that if we are going to have Long Titles then they should have some purpose. If we are to have purpose sections, why do we have Long Titles? Why not just have Short Titles? That is a decision for another day but I will discuss it with the Attorney General at some stage and I will raise the issue of whether it would be easier from now on to have a Short Title and purposes section and to abandon the principle of Long Titles.
The courts, as Senators know, have used Long Titles as an interpretative aid. I do not know if this is simply a matter of switching from one system to another, like turning off an electric light at the switch. I do not know if it would be as easy as that but it is an issue which might be considered. I cannot go much further than that.
I thank the Minister but perhaps we should have consistency in all our Bills. Section 5 of the Water Services Bill 2003 contains a purpose provision, on which my amendment is modelled, and section 2 of the Air Navigation and Transport Act 2004 contains a purpose provision. It may be time to look at this again to achieve consistency in our Bills.
I thank Senator Tuffy for seconding my amendments.
In our legislation there is a presumption against extra-territorial effect. In order to rebut this presumption, very clear words must be used. I propose this amendment in order to guarantee that this Bill will apply to sentences imposed outside the State and I hope the Minister accepts the amendment.
Again, I am grateful to Senator Terry but I am advised that there does not seem to be a need for this amendment, as the existing wording in sections 5(1) and 6(1) makes it very clear which sentences are being referred to in each case, the Irish sentence or the foreign sentence. The present formulation is satisfactory. It has been suggested to me that the amendment could introduce a level of uncertainty and confusion.
The Bill clearly deals with two separate situations. Section 5 deals with a request for execution of Irish sentences in a designated country and section 6 deals with a request for execution of foreign sentences in the State. Each section makes clear the sentence being referred to. In addition, the Bill does not apply to all sentences imposed outside the State and only applies to those imposed in designated countries. Therefore, the advice given to me is not to accept this amendment on the basis that sections 5 and 6 are adequately clear as they stand.
Amendment No. 27a is related to amendment No. 4a and is an alternative to amendment No. 28. Amendments Nos. 26 and 27 are consequential on amendments Nos. 27a and 28. Amendments Nos. 4a, 26, 27, 27a and 28 may be discussed together by agreement.
I move amendment No. 4a:
In page 4, line 20, after "passing" to insert ", unless the High Court on the application of the sentenced person concerned determines that it would be unjust for this Act to apply to that person".
Amendment No. 4a refers to a slightly different issue in that it deals with whether one can apply this legislation retrospectively. I do not believe the Minister has dealt with this issue in any of the Government amendments and I would like to hear his response. Will he reconsider not applying this legislation retrospectively in the way it proposes? The wording, as it stands, is that this Act applies in relation to sentences, whether imposed before or after its passing. Is it necessary or fair to include such wording? We are looking for an amendment which would at least allow the High Court to decide that it would be unjust to apply the Act retrospectively. I do not know if there is an alternative way to deal with it and perhaps the Minister might comment on whether there is such a way.
Government amendments Nos. 26 to 28, inclusive, deal, in part, with the issue we raised in amendment No. 27a. I thank the Minister and his Department for taking on board the issue we raised on Committee Stage. The amendments deal with the issue surrounding the European Arrest Warrant Act 2003 but do not deal with the issue of a person's constitutional rights and whether the High Court could take those rights into account. Perhaps the Minister might comment on whether that is protected by the legislation.
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.
I move amendment No. 6:
In page 5, line 25, to delete "6 months" and substitute "one month".
The effect of these sections is that we will not pursue people who have less than six months of their sentence to serve. We have often spoken of the integrity of our citizenship but if we are committed to preserving and securing the integrity of the courts and of sentences imposed, those who have unserved sentences must be pursued. I agree we do not want to spend resources, and expect other states to do so, chasing a person who only has a few days of his or her sentence left to serve but six months seems unduly lenient. These amendments propose that we reduce the length of time from six months to one month. Amendment No. 20 ensures that a warrant cannot be varied after it has been executed. I would like to hear what the Minister has to say, having considered the amendments.
I am grateful to the Senator for tabling the amendments. However, I believe they contravene the terms of the parent convention. The six month threshold is set out in Article 3.1.c of the 1993 Convention on the Transfer of Sentenced Persons, which is the parent convention.
The additional protocol and the Schengen provisions are to be read in conjunction with the convention, so the six-month threshold in the 1983 convention applies in this Bill as well.
In practical terms, I have to question the value of operating this legislation at such a low level as is proposed by the amendment. For instance, if somebody had a remaining sentence of six or seven weeks, is the State supposed to engage in an elaborate procedure in the courts to seek the person's incarceration for a short period, as in those circumstances? We must have regard to the realities of life, one of which is the fact that this matter is time consuming because it involves legal, court and prison administrative time to put it into operation. The six-month threshold is provided for in the convention to show an element of seriousness. Although in general terms I agree with the Senator's motivation in saying we should not leave titbits of sentences lying about, nonetheless, given all the circumstances, we must be mindful that this is not a simple process to put into operation because it takes a lot of time. If court officials and others are dedicating their time to proceedings under this legislation, they will not be doing other things. Should we have a threshold of seriousness which is to be different from that provided for in the parent convention? My instinct is to say "No" and to leave the threshold, as envisaged as a matter of international law, in operation, rather than to unilaterally impose on ourselves potential obligations and resource issues that are not necessary under the legislation.