Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I commend the Minister of State on bringing this complex and complicated legislation before the House. The Department also deserves to be commended. Sometimes the transposition of European law into Irish law can take very many years. In fact, I have seen legislation that has sought to transpose directives which were made some six or seven years previously. Obviously, with this legislation we are not transposing a directive but are giving full effect to an EU regulation. In fairness to the Department and the Minister of State, the regulation to which we are giving full effect only came into force in September 2021, so they are to be commended for drafting what is very detailed and complicated legislation in less than two years.

The purpose of the regulation when it came into force in September 2021 was to recast the dual-use regulation which had been in existence since 2009. I refer, of course, to Council Regulation (EC) No. 428/2009. As has been explained by previous speakers, the purpose of the regulation and this legislation is to ensure that in reference to dual-use products or technologies, meaning products that can be used for an orthodox civilian purpose but also for a military or security purpose, powers reside in member state Governments to either authorise or prohibit the sale of those products.

Obviously, from an Irish point of view, we do not have a history of arms manufacturing. Fortunately, that is the case in Ireland. If one looks around Europe, the countries predominantly involved in the manufacture of arms are the UK, France and Italy. However, Ireland is developing as a significant manufacturer of advanced technology and such technology may have a dual purpose or dual use. For that reason, it is extremely important in an Irish context that we give full effect to the regulation through this legislation.

Under the regulation member states are required to do several things, one of which is to prohibit the transit through their territory of non-EU dual-use items if their intended use would breach the regulation. That is being done explicitly in section 18 of the Bill. Member states are also required to ban, or demand an export authorisation for, items not listed in Annex I to the regulation. That is being done in section 10 of the Bill. Finally, there is a requirement on member states to demand export authorisation in certain circumstances for the transfer of dual-use items from their territory to another member state. That has also been expressly provided for in section 10.

All of the requirements that are contained within the regulation are dealt with in the Bill. More importantly, breaching a prohibition or failing to get an authorisation are now, and will be, criminal offences under Irish law as a result of this legislation. Deputy Bruton asked earlier how we will decide whether an authorisation should be granted or whether there should be a prohibition on the sale of certain products to a third country. That is a very valid question. When one looks at the background to the regulation, one sees that the objective is to ensure that member states will be guided by EU, national and international obligations and commitments. Obviously we will also be guided by sanctions that have been agreed by the EU and the UN and by national foreign and security policy decisions.

There is a procedure set out in the legislation which, in the first instance, gives the Minister the power to grant authorisation or to prohibit the sale of such products. A significant part of the legislation then goes on to deal with how that is to be enforced. No doubt there will be circumstances where parties who wish to sell the products on or who manufacture the products wish to challenge a refusal to grant authorisation by a Minister. In the legislation we very effectively set out an adjudication process whereby the Minister will asses in the first instance and then there will be adjudicators who will assess in respect of a complaint that has been made by a person affected by his decision.

I fully appreciate that there is a requirement for there to be a certain element of secrecy in respect of technology which people are developing. This is particularly true when it comes to commercial sensitivity. However, I note, and this is a common phenomenon in a lot of legislation, that sections 47 and 53 provide that any appeals to these decisions are to be held otherwise than in public. Yesterday, we had the Financial Services and Pensions Ombudsman, FSPO, before the finance committee. The issue there was the extent to which hearings of the FSPO would be in public or if they would continue to be held in private. It is important that we all appreciate that under Article 34 of our Constitution, justice is primarily to be administered in public. Then, obviously, Article 37 also permits us to set up certain bodies that will exercise limited judicial functions. I suspect what is being done in the Bill is the exercise of a limited judicial function because it is balancing the rights of a person who has manufactured technology and is trying to challenge a decision of the Minister and the State to refuse a permission for that to be exported or sold on. I appreciate in this case that one probably would want to have disputes heard in private. The Department will deal with many of these issues. I do think given the Zalewski judgment that recently came out of the Supreme Court that there is an obligation on us to recognise that the primary forum for adjudication of judicial issues should be in public.

Obviously, the United Kingdom was subject to Council Regulation (EC) No 428/2009 when it was introduced. The UK has left the European Union. Issues may arise in respect of the export of dual-use technology from Northern Ireland. I do not know how the Minister is going to deal with that, but it is something that Government needs to keep a close eye on.

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