Michael D Higgins (Galway West, Labour)

I share the views of the previous speaker regarding the urgency for a debate on a number of matters. These include the United Nations General Assembly meeting this month, in particular, the debate on United Nations reform in regard to the current feasibility and urgency of achieving the world millennium development goals and a number of other matters relating to Turkey's accession to the European Union. It is important that the political environment should allow that these issues could be discussed as soon as possible at the UN so that conclusions can be reached or, for example, in the case of the accession of Turkey to the EU, that a debate should take place in advance of a decision. I do not intend to digress on these issues, as we will have an opportunity on Question Time next week to pursue them in detail. I also hope we will have an opportunity to deal with substantive matters in debates over the next few weeks.

The Bill is interesting. I remarked earlier that it merited an explanatory memorandum because of its importance. I was grateful for the note forwarded to my party on 14 September by the legal division of the Department. An explanation is needed as to why there was such delay in introducing the legislation, although I understand its political context. The concept of immunity has changed since 1963 and 1967. An explanatory memorandum could usefully have put the powers and immunities conferred by the Vienna Convention in context and could have made the case for their extension.

The Bill has three functions — to name other organisations, extend immunities and introduce a retrospective legitimisation of orders that have been made. Immunities in the European Union vary and that is why the concept of immunity is interesting. For example, the Parliamentary Assembly of the Council of Europe provides an immunity that is much wider than that extended to the membership of the European Parliament. This was exploited recently. The most distinguished exploiter of this anomaly was the Italian Prime Minister, Senor Berlusconi, whose instant accreditation to the Parliamentary Assembly of the Council of Europe was a simple ruse to acquire an immunity wider than that provided by the European Parliament. This was raised at the credentials committee of the Parliamentary Assembly.

Issues have arisen during the long history of immunity. The preamble to the Vienna Convention correctly made reference to the ancient principle of respect for those involved in diplomatic action. The long history of immunity lodged in such a context is not simple. I accept the difficulties of providing a parliamentary response to the issue of sufficiency. An explanatory memorandum would also have been useful to address new circumstances that have emerged in recent years such as the International Criminal Court or the Rome court as it is known by its detractors. For example, the evolving jurisprudence might have examined conditionalities relating to compliance with international human rights standards and the prosecution of crimes against humanity and other crimes. I refer to the proposed UN international convention on the elimination of corruption, which lacks a few signatures to become a legal instrument. Next week we can discuss what action the Government is taking in this regard.

However, the legislation raises an interesting principle, as it refers to the extension of privileges to agencies and their representatives with whom the Government intends to have a relationship. This is welcome because it contradicts an old chestnut, which lies at the base of much foreign policy, that even though morally and publicly there may be immense support for the ratification and implementation of an international instrument, the Government takes the view that it is only when domestic legislation is in place that we can accept the discipline of such an instrument. This legislation is an interesting contradiction in this regard, which is welcome, as it goes in an entirely different direction. The question of intention is correct. The suggestion that a country signs up to international responsibility following the passage of domestic legislation is an assumption of bad faith among fellow members of an international organisation such as the UN. I would welcome a move away from that.

The issue of reciprocity may be teased out in another way when it arises in regard to international adjustments such as this. A wide range of immunities and privileges are conferred by different countries under the Vienna Convention, which merit consideration. I am not a constitutional lawyer but I question the broad conferral of legitimacy on orders made in the past. Under the principle of retrospection, if an issue has been raised about the constitutionality of the breadth of powers the Government has given itself and, having put a limitation into legislation in 2005, can it automatically confer a legitimate status on all the previous orders? I question the constitutionality of such an approach.

The legislation will facilitate the conferring of immunities and privileges on those concerned with investigation, mediation and the establishment of fact under a number of international instruments. For example, if the International Criminal Court sought to investigate cases involving people seeking residence in Ireland and they are covered by a UN instrument or under the devolved powers of the ICC, they would qualify, which is welcome. I could nominate a few places of potential investigation. However, I would not go down the road of limitation with other agencies. The legislation is providing that instead of providing an open power, it confers a limitation on the Government but I would have welcomed the placing of the principles of the Vienna statute in a modern setting.

I agree with Deputy Allen's comments. It is a contradiction with which we must live. Many places which fall short of the test of democracy seek to confer protections and immunities on their representatives although they do not accord rights to their own citizens. The history of diplomacy is such that these are often the people whom one wishes to confront within a discourse here. If one is to protect the possibilities of discourse one must consider modernising the law.

I would like to see all these issues spelt out in greater detail, particularly the comparative work undertaken in regard to other countries' abuse of immunity. Some of the most powerful countries significantly abuse immunity, using it as a cover for espionage, spying and even assassination. It is a topic worthy of a more extensive discussion. This long-promised Bill is welcome and makes a necessary adjustment but I hope it is the beginning of a wider debate.

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