Before we commence, I remind Senators that they may speak only once on each amendment on Report Stage, except for the proposer who may reply to the discussion on the amendment. However, there will be a proposal to recommit amendment No. 3 and, if agreed, there will be no restriction on the debate on that amendment. I will deal with that matter when we reach amendment No. 3. Furthermore, on Report Stage each amendment must be seconded.

Amendments Nos. 1, 2, 5 to 11, inclusive, and 16 to 22, inclusive, are related and may be discussed together by agreement.

I move amendment No. 1:

In page 3, between lines 21 and 22, to insert the following:

"‘the Convention' means the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by resolution of the General Assembly of the United Nations on 10 December, 1984, the text in the English language of which is set out for convenience of reference in the Schedule to this Act.".

The amendment is a definition of "convention" and a similar one is incorporated by the Minister of State in amendment No. 2. It seems the Minister of State has by and large taken on board the issues we raised on Committee Stage. Perhaps he might give an outline of his briefing on the combination of these amendments and how he has taken on board our original proposal.

Does anyone else wish to speak? The amendment must be seconded.

I second the amendment.

I am aware of the worthwhile discussion in the House on the Bill on Committee Stage. Members will be aware that the Minister of State, Deputy Mary Wallace, undertook to consider a number of matters raised then, especially those relating to amendments tabled by the Labour Senators. It will be clear from the Government amendments tabled that, while we have not been in a position to take on board all the points made, we have gone a long way towards that. I am sure the House accepts the Bill is substantially improved as a result.

Government amendments Nos. 2 and 22 meet the points raised in amendments Nos. 1 and 21 in that they allow for the text of the convention to be incorporated into the Bill. This is obviously useful and the Minister of State undertook to respond to similar amendments tabled on Committee Stage by Senator Ryan by asking the parliamentary draftsman to devise appropriate amendments for Report Stage. There is no difference of substance between the Government amendments and those tabled by Senator Ryan and others. All that is at issue are slight matters of drafting. In the circumstances, I ask Senator Costello to withdraw Senator Ryan's amendments in favour of the official ones.

In making this change, the draftsman took the opportunity to make some other changes of an essentially drafting nature to recast the definition section of the Bill. This involves moving the definition of torture from the body of the Bill into the definition section. The only change of substance which has been made is that the phrase "for such purposes as" has been included in the definition of torture. This arises from a discussion on Committee Stage and this change in the definition is sought by the Labour Party Senators in amendment No. 6. Amendment No. 5 is consequential on amendment No. 2.

The opportunity is also being taken in the new definition section to define "Minister" as the Minister for Justice, Equality and Law Reform and amendment No. 18 is consequential to this. For drafting reasons, the definition section now defines the offence of torture. This involves no change of substance and amendments Nos. 9, 10 and 11 are consequential to this and the moving of the definition of torture itself. Amendments Nos. 7 and 8 in the name of the Labour Party Senators are related to those amendments because they seek to change the definition of torture. I regret it has not proved possible to accept those amendments.

Amendment No. 7 seeks to include as part of the definition of torture any act contrary to Article 3 of the European Convention on Human Rights. This would include acts of inhuman or degrading treatment. The difficulty which remains with this is that the inclusion of this in the definition would offend against the principle of certainty in criminal law. In other words, people need to know that what they are doing constitutes an offence. There have been a series of judgments of the European Court where the question of what constitutes inhuman or degrading treatment has been considered.

It must be remembered that what is included in the human rights convention arises in the context of a binding agreement on states, not in establishing criminal culpability. In terms of criminal liability, the use of the phrase "inhuman or degrading treatment" would lack the certainty necessary in the context of formulating a criminal offence. Leaving aside the fact that including a definition that lacks certainty might be found to fall foul of the Constitution, there remains the fundamental point that, without further definition, a person would not be in a position to know with any certainty whether he is committing an offence of inhuman or degrading treatment. I assure the Senator that we have examined the point carefully since he raised it on Committee Stage but our strong advice is that including such a definition could jeopardise the section in its entirety and, accordingly, would not be desirable.

A similar difficulty arises with amendment No. 8. The effect of the amendment would be to make part of the definition of torture subject to Article 1(2) of the convention which states: "This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application." There is a technical problem about this because the definition of torture contained in the Bill is a stand-alone provision which does not refer to the convention. It would not be practical to include in that definition, as amendment No. 6 seeks to do, a reference to part of the article of the convention which, in turn, refers to another article that is not referred to in the Bill. In every other event the overriding difficulty with what is proposed is that the formula would again lack the precision necessary in the definition of a criminal offence and would give rise to the same type of difficulty that would arise with amendment No. 7.

On Committee Stage the Minister of State, Deputy Mary Wallace, gave an undertaking that the commencement provisions of the Bill would be looked at with a view to bringing forward a Government amendment on Report Stage which would bring most of the legislation into force as quickly as possible after enactment. Having consulted with the parliamentary draftsman, the Government has tabled amendments Nos. 17 and 20 which will bring the legislation, with the exception of section 10, into force immediately on enactment. If amendments Nos. 17 and 20 are agreed to, there is no need for amendments Nos. 16 and 19.

Section 10 deals with privileges and immunities in relation to the Committee Against Torture established under Article 17 of the convention, and the conciliation commission set up under Article 2(1) (e) of the convention. Senators will be aware that it would be necessary to ratify the convention before bringing this section into force. It is hoped that the convention will be ratified as quickly as possible. However, as there will inevitably be some delay between the enactment of the legislation and ratification of the convention, it is necessary to provide for a commencement order solely relating to this section.

I trust that the Government's amendments are to the Senators' satisfaction and thank them for raising this matter on Committee Stage. I ask Senator Costello to accept the Government's amendments which will bring most of the Bill into force earlier than envisaged by his amendments and to withdraw his amendments. The Government's amendments go a long way to meeting many of the concerns expressed on Committee Stage. I hope the House will accept that, where we are not in a position to accept amendments, this followed detailed consideration which concluded that there were no cogent reasons for doing so.

I thank the Minister of State for his comprehensive response to our amendments. I also thank him for agreeing to include the text of the convention in the Bill as it encapsulates our objective of providing a statutory basis for this legislation. It is good that we are doing so and the Minister of State's proposals regarding the commencement of the Bill meet our concerns. I am pleased that this matter has been dealt with comprehensively and I accept the Minister of State's comments.

Amendment No. 2 was discussed with amendment No. 1.

I move amendment No. 4:

In page 4, between lines 8 and 9, to insert the following:

"(3) A person, other than a person referred to in subsection (1) or (2), who carries out an act of torture on another person, whether within or outside the State, shall be guilty of the offence of torture, but shall be liable to be prosecuted in the State if that person or the victim of the offence is an Irish national or if that person subsequently enters the State or if the offence was committed in or has any other substantial connection with the State.".

This amendment is not included in the list mentioned by the Minister of State. Perhaps he would respond to the amendment.

This matter has been carefully considered since a similar amendment was debated on Committee Stage. I do not dispute that there is validity in some of the arguments put forward in support of this amendment and this is not a clear-cut case. However, the conclusion reached after careful examination is that, on balance, the amendment should not be accepted.

Everyone accepts that the definition of torture contained in the Bill is sufficient to give effect to the UN convention. The definition in the Bill mirrors as closely as possible the definition in the convention and the purpose of the Bill is to give effect to the convention. I accept that the convention would not prevent the use in our legislation of a wider definition of torture than that contained in the convention, if considered desirable, once the definition of torture in our domestic law clearly covered the definition contained in the convention.

The key issue is whether an extension of the definition is desirable. Acts of torture are reprehensible no matter who they are committed by, but the convention deals with acts of torture by public officials, in other words, acts of torture committed by persons acting on behalf of the state. In doing so the convention specifically recognises the peculiarly evil nature of, in effect, state-sponsored torture. Our legislation reflects this by confining the offence of torture, in line with the convention, to acts of this nature. For all practical purposes, the amendment would extend the definition to acts committed by anyone. The Minister's view is that the balance of the argument lies with the criminal law specifically recognising the unique nature of acts of torture committed by agents of the state and to the extent that the definition in the way proposed by the amendment would dilute that argument.

The conclusion would be different if it were the case that acts of torture committed by persons other than public officials would not be subject to criminal law. The reality is that, in practice, acts that would amount to torture would constitute serious offences under existing criminal law, for example, assault. The Non-Fatal Offences Against the Person Act, 1997, updated our law in the area of non-fatal offences generally. It includes a wide range of offences for which very heavy penalties are prescribed. There is no question but that a person committing acts of torture here in the ordinary sense of the word, would be amenable to the criminal law.

Amendment No. 4 would make a difference in that is seeks to allow for the prosecution here of a person, other than a public official, who committed an act of torture anywhere in the world and who entered this jurisdiction. I am advised that to seek to confer such extraterritorial jurisdiction would raise complex issues of constitutional and international law. The normal procedure between states is that if a person enters one jurisdiction who is wanted in relation to an offence in another jurisdiction, the matter is dealt with by extradition. Exceptionally, some offences can be dealt with by putting a person on trial in one jurisdiction for an offence committed in another jurisdiction. This generally takes place against the background of international agreements and, in the present case, the giving of that extraterritorial jurisdiction concerning torture, as defined in the Bill, is underpinned by the existence of the UN Convention Against Torture. There would be no such underpinning in international law in relation to an offence of torture which is defined in a way that goes beyond the definition contained in the convention, as proposed by this amendment.

There is a general principle of international law established in what is known as the Lotus case by the Permanent Court of International Justice to the effect that every sovereign state has the power to legislate with extraterritorial effect in the sense that it may enact that acts or omissions done outside its borders are criminal offences which may be successfully prosecuted within its borders. This is subject to the condition that the offences in question bear upon the peace, order and good government of the legislating state. It is hard to see how this condition would be fulfilled as regards an act of torture committed on the other side of the world. As I indicated, there is no international agreement which would underpin such jurisdiction in the case of acts of torture which would come within the definition of torture included in the UN convention.

I have gone into this matter in some detail because there is validity in some of the Senator's comments in support of the amendment. However, because there are advantages in making unique the nature of torture carried out by people acting on behalf of the state and because there would not appear to be any clear basis in constitutional or international law to confer the type of extraterritorial jurisdiction which is at issue, I regret that I must oppose the amendment.

I take on board the Minister of State's comments and I think he is probably right. However, I wish to explore this issue a little further. The UN Convention against Torture applies only to torture carried out by states or state officials. All other categories of individuals are exempt or not covered by it but the Minister said they would be covered by national legislation. At present there much paramilitary activity, a large part of which is torture – intimidation, kneecapping, criminal gangs, vigilantism, etc. These are of an organised nature, although they have a private, individual aspect. The convention contains nothing to prevent national laws offering a wider or more extensive definition and there may be merit in that. The Minister said that we should deal with internal matters separately from this Bill. However, these other activities have increased in recent years and it may be worthwhile looking at organised groups who engage in systematic torture in a national and international capacity.

The convention applies only to torture by public officials. Paramilitary activity in Northern Ireland could be prosecuted here under the Criminal Law (Jurisdiction) Act, so there is no problem in that respect.

I move amendment No. 12:

In page 4, between lines 38 and 39, to insert the following:

"4.–Where a person has before the commencement of this Act carried out an act of torture, whether within or outside the State which was at the time of such commission an offence against international law by reason of the fact that either–

(a) the act was carried out at any time and constituted or was carried out in the course of a crime against humanity, an act of genocide or a contravention of the laws and customs of war, or

(b) the act was carried out on or after the 10th day of December, 1984 and constituted a contravention of the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York on the 10th day of December, 1984,

and which was at the time of such commission an unjust attack on the rights of any person, whether within or outside the State, being rights recognised at such time by the Constitution or the Constitution of Saorstát Éireann, such person shall be liable to prosecution for that offence in the State and on conviction on indictment thereof shall be liable to imprisonment for life.".

The purpose of this amendment is to deal with cases similar to that of General Pinochet in the UK. British law did not have a provision such as we are seeking to insert into this Bill, therefore, it was impossible to extradite him for crimes committed prior to the UK Act on torture. What would happen if a similar person were to enter this jurisdiction? How would we deal with such a person and would he or she be immune from extradition unless we inserted a provision of this nature?

I second the amendment.

A similar amendment was discussed on Committee Stage. This amendment seeks to make the offence of torture retrospective under our law but, as the Senator is aware, Article 15.5 of the Constitution contains a prohibition against the enactment of retrospective legislation which declares acts to be an infringement of the law which were not so at the time of their commission. I acknowledge that much ingenuity has been used in drafting the amendment to try to get around the constitutional prohibition but the advice available to me is that it fails to do so – in fact, there is no constitutional way to achieve what the amendment seeks.

On Committee Stage the Minister of State, Deputy Mary Wallace, outlined those difficulties but indicated there would be consultations with the Office of the Attorney General on whether there was any way to get around the constitutional issue involved. Regrettably, there is not. The advice is that Ireland takes a dualist approach to international law. Therefore, despite the adoption of the UN Convention by the General Assembly in December 1984, no offence is created in Ireland until provided for by our criminal law. Thus, unless the acts constituted an infringement of our law at the time of their commission, to seek to give retrospective effect to present legislation would be contrary to Article 15.5 of the Constitution.

The Senator will be disappointed but I hope he can accept it is not possible for me to do more in the circumstances and that he will withdraw the amendment.

I accept what the Minister says.

Amendments Nos. 13 to 15, inclusive, are related and may be taken together by agreement.

On Committee Stage Senator Ryan asked whether Article 3 of the convention was adequately covered in the legislation. The Minister of State, Deputy Mary Wallace, undertook to examine the matter for Report Stage to ensure that we covered in our law the intention of that provision. Article 3.1 of the convention states that no party shall expel, return or extradite a person to another State where there are substantial grounds for believing he would be in danger of being subjected to torture. As the legislation stands it only covers extradition in section 6.

Officials of the Department consulted the parliamentary draftsman as to the best way to put it beyond doubt that Article 3 was fully provided for in our law, and the draftsman was of the view that provision should be made in this legislation rather than by way of amendment to the Refugee Act, 1996. I am satisfied that the official amendment, which was drafted on the basis of the wording of the Refugee Act and Article 3 of the convention, covers for Irish law the grounds contained in Article 3 of the convention. I thank the Labour Party for raising the matter and ask the Senator to support the amendment and to withdraw his own.

The Minister has met our concerns extremely well. It is important that we deal with cases where someone would be in danger of being subjected to torture if he or she was expelled from the State.

I thank the Minister and his officials for the manner in which they responded so comprehensively and generously to the concerns expressed by my colleague, Senator Ryan, on Committee Stage. The Bill has been improved by the amendments made to it. I am delighted the text of the UN convention will be inserted in this Bill. That is important because it underpins the statutory provision we are making. I thank the Minister for the manner in which he has handled this legislation and I thank his staff for being so efficient.

I thank the Minister for Justice, Equality and Law Reform for bringing forward this legislation and for ensuring that the important international convention is incorporated into Irish law. I spoke on Second Stage but I was not present for Committee Stage. I stated on Second Stage that there was other legislation that we needed to incorporate into Irish law, that is to ratify the UN convention and the setting up of an international criminal court. This legislation deals with perpetrators of torture acting on behalf of the State. If we had an international criminal court it would make amenable to such a court the people who order such heinous acts all over the world. This arises from an agreement Ireland signed in Rome last July, almost a year ago today. To ratify that agreement, 60 countries must sign it. I appeal to the Minister to ask his Department to start working on that and, hopefully, he will bring forward legislation in the autumn for ratification in both Houses.

I thank my colleagues and the Minister of State for the speedy passage of this Bill. There were ten Government amendments and most of them were brought to bear by the commitment of the Opposition speakers on Committee Stage. This indicates the sincerity of the Department and its officials in listening to what Senators said. Most of the points raised by my Opposition colleagues were introduced in the form of Government amendments. This is probably the last opportunity I will have to speak and I wish all my colleagues and the Leas-Chathaoirleach a happy summer recess.

We need it.

Despite some frosty crossfire, Senators will accept that most of it was in good fashion and that it is part of political life. I wish everyone concerned a good break.

I thank all the Senators for their contributions to this Bill, which is important. It is one of a significant number of Government Bills which are being initiated in the Seanad and that shows the importance of the Seanad in the initiation and teasing out of some of the more complex legislation. It is clear from the changes we have agreed to that the Bill has been substantially improved as a result of the deliberations of this House. I thank the Labour Senators for the amount of background work and research that went into their amendments. As Senator O'Donovan stated, their work brought about the Government's amendments and improved the Bill.

We all accept that Ireland's ratification of the UN convention is overdue and we look forward to the passage of this legislation in the Dáil early in the next session. I am grateful for the way in which Senators dealt with this Bill and the speedy manner in which it has been dealt with. I thank everyone involved, not least the officials of the Department of Justice, Equality and Law Reform who have given far more comprehensive responses to amendments than is normal. That leads to a better understanding on the part of all of us as to what is being achieved in the Bill.