Dáil debates

Wednesday, 15 February 2006

Diplomatic Relations and Immunities (Amendment) Bill 2005: Report and Final Stages.

 

5:00 pm

Séamus Pattison (Carlow-Kilkenny, Labour)
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Amendment No. 1 is out of order.

Photo of Michael D HigginsMichael D Higgins (Galway West, Labour)
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Did the Leas-Cheann Comhairle say that amendment No. 1 is out of order?

Séamus Pattison (Carlow-Kilkenny, Labour)
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Yes..

Photo of Michael D HigginsMichael D Higgins (Galway West, Labour)
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It is not appropriate for me to question the basis of the decision.

Amendment No. 1 not moved.

Photo of Michael D HigginsMichael D Higgins (Galway West, Labour)
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I move amendment No. 2:

In page 3, to delete lines 13 to 21 and substitute the following:

2.—The Principal Act is amended by substituting the following for section 39—

39.—In this Part—

'organisation to which this Part applies' means an international organisation, community or body standing designated for the time being by order under section 40 of this Act;

'Vienna Convention' means the Vienna Convention on Diplomatic Relations done at Vienna on the 18th day of April 1961 the text of which in the English language is set out for convenience of reference in the First Schedule to this Act.".".

My amendment No. 1 proposed to add a new section 5A and insert that:

(1) The provisions of the Vienna Convention on the Law of Treaties done at Vienna on the 23rd day of May, 1969, shall have the force of law in the State.

(2) The Minister may from time to time make such orders as appear to him necessary or expedient for carrying out the convention referred to in subsection (1) of this section and for giving effect thereto or to any of the provisions thereof, and may revoke or amend any order under this section.

We discussed this matter on Committee Stage. I wished to raise it again on Report Stage to ask the Minister of State for clarification on the Government's precise intention with regard to the Vienna Convention on the Law of Treaties. Why have we not signed up to this important instrument or a more important one, the Declaration on the International Court of Justice? We are in the same position as the United States of America in ignoring the latter.

Photo of Conor LenihanConor Lenihan (Dublin South West, Fianna Fail)
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Amendment No. 2 would change the wording as set out in the first Schedule to the Act to "the text of which in the English language is set out for convenience of reference in the First Schedule to this Act". The amendment seeks to change the wording to that now more commonly used in scheduling the text of international conventions to Bills. However, as I stated on Committee Stage to the Deputy and others, since section 2 substitutes a new section 39 into the principal Act of 1967, on balance it is considered preferable to adhere to the wording used elsewhere in the principal Act, such as in section 5. This approach ensures minimum disruption to the principal Act and maintains consistency. Accordingly, the Government opposes the proposed Labour Party amendment. This is only a textual issue and is designed to maintain textual continuity from the 1967 Act. The Deputy and his advisers are correct that the present style of acceding to international treaties is more modern. It has been decided on advice from the Attorney General and parliamentary draughtsman that we will keep that textual consistency because this is being inserted into the 1967 Act and is not a new section.

Photo of Michael D HigginsMichael D Higgins (Galway West, Labour)
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The Minister may be slightly confused because we have moved between two amendments. I ask him to answer my question about the Vienna Convention on the Law of Treaties, which is important, as is the signature of the instrument for the International Court of Justice. I take the point about the textual nature of amendment No. 2. I was urging a move away from the slavish interpretation of the handbook toward drafting legislation according to more modern usage. It would be helpful for scholars and students in the future to be able to see the part of the Bill that was to be amended set out clearly and separately. It is, however, a matter of style and the amendment which follows is more important.

Photo of Conor LenihanConor Lenihan (Dublin South West, Fianna Fail)
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If it is of value to Deputy Higgins, I can give what might have been my reply to amendment No. 1. The amendment proposed by the Labour Party relates to the Vienna Convention on the Law of Treaties and was disallowed on Committee Stage for being outside the scope of the Bill. The Bill relates solely to the Vienna Conventions on Diplomatic and Consular relations. As I stated on Committee Stage the Government proposes to accede to the Vienna Convention on the Law of Treaties and my Department continues to work toward achieving this. An Act of the Oireachtas may not be necessary for Ireland to accede to the convention. It would be inappropriate to use the current Bill for the purposes proposed by this amendment.

Photo of Michael D HigginsMichael D Higgins (Galway West, Labour)
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What about the instrument for the International Court of Justice?

Photo of Conor LenihanConor Lenihan (Dublin South West, Fianna Fail)
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That is for the Department of Justice, Equality and Law Reform. I would like to know everything and oblige the Deputy as far as possible but it is a matter for that Department.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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What does the Minister mean by "An Act of the Oireachtas may not be necessary"? Does it mean it will not be necessary? Has a decision been taken or advice been given by the Attorney General or somebody else?

Photo of Conor LenihanConor Lenihan (Dublin South West, Fianna Fail)
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It may not be necessary to pass legislation to accede to the Vienna conventions. That is the best legal advice we have at present but the issue is being explored and we have sought confirmation from the Attorney General. It is a fine call but, as the only member of my family not to become a lawyer, I am not particularly conversant with the legal issues involved.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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The Minister of State is doing all right.

Photo of Conor LenihanConor Lenihan (Dublin South West, Fianna Fail)
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Within the next few months, the Attorney General will confirm whether legislation is needed to accede to the convention. However, the advice of my Department's legal officers is that such a provision may not be necessary.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I do not wish to delay passage of the Bill but, further to Deputy Higgins's query, from whence is the Minister of State's advice drawn? While I presume it comes from the Attorney General, is it in fact drawn from the legal section of the Department and, if that is the case, has it been verified? Sometime before the next general election, somebody could announce in this House that legislation needs to be introduced to meet the requirements set out in Deputy Higgins's amendment. I want further confirmation on that because the question of the term "may or may not" has annoyed me for many years and I want to be more positive and clear.

Photo of Conor LenihanConor Lenihan (Dublin South West, Fianna Fail)
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If I was not sufficiently clear in my reply to Deputy Higgins, I will be more explicit for the benefit of Deputy Durkan. The advice I received from the legal advisory section in the Department of Foreign Affairs is that legislation will not be required. However, in line with usual practice for these matters, we are consulting the Attorney General to ensure that he is of the same legal view.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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Subject to confirmation.

Photo of Conor LenihanConor Lenihan (Dublin South West, Fianna Fail)
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We are the lead Department in terms of international legal issues but, in keeping with our approach to joined-up Government, we have to confirm it with the Attorney General. Our in-house legal opinion is that we will not need legislation and that is good news because, if the Attorney General confirms our view, it will be a matter of months before we accede to the Vienna conventions. The Deputy is more experienced than I in legislative matters and will be aware that, if legislation is required, the matter will take longer to resolve.

Amendment, by leave, withdrawn.

Photo of Michael D HigginsMichael D Higgins (Galway West, Labour)
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I move amendment No. 3:

In page 4, to delete lines 45 to 53 and in page 5, to delete lines 1 to 11 and substitute the following:

6.—(1) Subject to subsection (2), every order made under Part VIII immediately before the passing of this Act is hereby confirmed save to the extent that such order has been revoked prior to that date.

(2) The following orders are revoked:

(a) the INTELSAT (Designation of Organisation and Immunities of Organisation and its Officers and Employees) Order 1972 (S.I. No. 39 of 1972) (amended by INTELSAT (Designation of Organisation and Immunities of Organisation and its Officers and Employees) (Amendment) Order 1993 (S.I. No. 191 of 1993));

(b) the European Telecommunications Satellite Organisation (Eutelsat) (Designation and Immunities) Order 1993 (S.I. No. 193 of 1993); and

(c) the European Radio Communications Office (Privileges and Immunities) Order 1994 (S.I. No. 186 of 1994).".

Of the three amendments that I tabled, this is the most significant. It provides certainty on a serious problem which arises in section 6. It is not proper to state that an order should have effect as if it were an Act for the simple reason that it is not an Act. This legislation is being brought because a Supreme Court decision pointed out a defect in the 1967 Act, yet we are saying that all Acts taken under that Act shall be constituted as if they were statutorily proper. What, for example, would happen if an order had been revoked?

The first paragraph of the explanatory memorandum states "est legislative practice requires that delegations of legislative power be limited by a clear statement of the principles and policies to be followed in the exercise of that power". However, reference should be made to constitutional requirement rather than best legislative practice.

The problem with section 6 as it stands is that it may not be effective. It states that orders have statutory effect if they were in force immediately before the passing of this Bill. The difficulty is that if the orders are outside the power of the 1967 Act owing to the defect suggested by the court and addressed by this Bill, they were not immediately in force and section 6 as it stands will have no legal effect. I say this by way of assistance and to achieve legal certainty in what is being proposed.

I raised this issue on Committee Stage but the Minister of State's reply did not address the problem. If I were to substitute constitutional best practice, a constitutionally conservative reading or even a constitutionally innovative one would not permit me to operate in this manner. Therefore, the amendment I propose is more constitutionally robust and much closer to legal certainty.

Photo of Conor LenihanConor Lenihan (Dublin South West, Fianna Fail)
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The Government amendment to section 6 of the Bill was agreed upon on Committee Stage. The Labour Party's proposed amendment to section 6 would involve its replacement with a differently worded provision which would have substantially the same effect. As I stated on Committee Stage, the main difference in the proposed amendment is that, whereas the Bill deals with the matter by the textual insertion of an additional section to the 1967 Act, the proposed amendment is a stand-alone provision in the 2005 Bill. Our concern is with textual consistency in the arrangement of the Bill. Given that section 6 affects the status of orders made under Part VIII of the principal Act, the Government favoured the decision to insert the additional section textually to the 1967 Act and is acting on the advice of the Parliamentary Counsel on the matter.

On another matter raised by Deputy Higgins, the Supreme Court in its 2004 judgment in the case of Leontjava and Chang v. the DPP held that it is constitutionally permitted to provide by an Act that a statutory instrument already in force shall have statutory effect as if it were an Act of the Oireachtas and, furthermore, that it is not necessary to set out in detail the contents of such orders.

Photo of Michael D HigginsMichael D Higgins (Galway West, Labour)
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The decision referred to is worthy of referral with regard to its constitutional significance. With respect, the Minister of State is making matters worse by saying that he has achieved textual consistency.

I repeat my charge with regard to the amendment. It is much better to set out the orders separately and with clarity. The question arises of whether imperfections are being included. If, for example, an order was imperfect or struck down, was it in force? A difficulty exists in terms of flawed text such as "in force at the time" because an ambiguity is created as to what is being specified and dealt with in the legislation. It does not help matters to suggest that, because a defect surfaced elsewhere but managed to survive for the day, it will work in this case.

If the Minister of State wishes to extricate himself from this difficulty and achieve more constitutional consistency, he should opt for constitutional conservatism rather than what he calls best legislative practice and seek clarity rather than what he calls textual consistency. In terms of the justification offered, textual consistency simply says that because we got away with it on one occasion, we can get away with it again. However, I suggest that is not correct.

I am a political scientist who knows that apart from the fact that they should be brief, constitutions should, at their core, be certain. If one wants to be certain, one must be clear in legislation. I, therefore, urge the Minister of State to be compliant and to accept the amendment I have proposed.

Photo of Conor LenihanConor Lenihan (Dublin South West, Fianna Fail)
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I would like to do so but at the risk of causing offence, the Deputy may be overstating the case. It is not the case that a Supreme Court decision in respect of Leontjava and the Director of Public Prosecutions actually exposed a defect. What is happening here is that, on the advice of the Attorney General, we are moving to rectify a potential defect that might emerge at some point. It is not a question of the courts driving us into a paroxysm and deciding that we must change this.

Photo of Michael D HigginsMichael D Higgins (Galway West, Labour)
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It is important to clarify the delegation.

Photo of Conor LenihanConor Lenihan (Dublin South West, Fianna Fail)
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The Attorney General decided that in terms of best practice, it was best to delimit the areas whereby immunities and privileges can be granted by a Government and that they should be specified, rather than unspecified. That is what we are doing here. It is a tidying up operation. It has not been occasioned by a crisis, constitutional, legal or otherwise. The Leontjava case brought into relief a potential issue which is now being addressed, which is proper. Sometimes in this House in the past, such matters were left alone and not dealt with and we were dependent on other legal cases to bring issues into sharp relief. Potential defects became actual defects in subsequent cases. This is not a dramatic move to rectify a defect that was exposed by a court case. The Attorney General has advised that this is the best way of ensuring that a possible defect does not come into sharp relief and become a problem. In effect, we are limiting the Executive's or the Government's potential to prescribe as it sees fit. We are delimiting and setting out clearly, by way of legislation and orders, how people will achieve immunities under the convention.

Photo of Michael D HigginsMichael D Higgins (Galway West, Labour)
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I am sure the Minister of State wishes it were so but the reality is that following the court case, his Department was advised that it was better to be clear and certain on the process of delegation so that it would not be indiscriminate. This is how the matter arose. It is not a case of one opting in, but rather of one responding to the suggestion that one is on safest ground constitutionally and legally if one has specified the process by which one is exercising the power of extending protections under diplomatic relations and immunities.

Séamus Pattison (Carlow-Kilkenny, Labour)
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We are on Report Stage and Deputy Michael Higgins has spoken for the third and final time. The question must now be put to the House.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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I merely wished to support Deputy Higgins.

Séamus Pattison (Carlow-Kilkenny, Labour)
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Is the Deputy pressing amendment No. 3?

Photo of Michael D HigginsMichael D Higgins (Galway West, Labour)
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Yes.

Question put: "That the words proposed to be deleted stand."

The Dail Divided:

For the motion: 65 (Noel Ahern, Barry Andrews, Seán Ardagh, Niall Blaney, Johnny Brady, Martin Brady, John Browne, Joe Callanan, Ivor Callely, Pat Carey, John Carty, Donie Cassidy, Michael J Collins, Mary Coughlan, Brian Cowen, John Cregan, Martin Cullen, John Curran, Síle de Valera, Noel Dempsey, Tony Dempsey, John Dennehy, Jimmy Devins, Frank Fahey, Michael Finneran, Dermot Fitzpatrick, Noel Grealish, Seán Haughey, Máire Hoctor, Joe Jacob, Billy Kelleher, Peter Kelly, Séamus Kirk, Tom Kitt, Brian Lenihan Jnr, Conor Lenihan, Tom McEllistrim, Micheál Martin, John Moloney, Donal Moynihan, Michael Moynihan, Michael Mulcahy, M J Nolan, Éamon Ó Cuív, Seán Ó Fearghaíl, Charlie O'Connor, Liz O'Donnell, Denis O'Donovan, Noel O'Flynn, Batt O'Keeffe, Fiona O'Malley, Tim O'Malley, Tom Parlon, Peter Power, Seán Power, Dick Roche, Mae Sexton, Brendan Smith, Michael Smith, Noel Treacy, Mary Wallace, Joe Walsh, Ollie Wilkinson, Michael Woods, G V Wright)

Against the motion: 53 (Dan Boyle, Pat Breen, Tommy Broughan, Richard Bruton, Joan Burton, Paul Connaughton, Paudge Connolly, Joe Costello, Jerry Cowley, Seán Crowe, Ciarán Cuffe, John Deasy, Jimmy Deenihan, Bernard Durkan, Olwyn Enright, Martin Ferris, Eamon Gilmore, John Gormley, Tony Gregory, Tom Hayes, Michael D Higgins, Phil Hogan, Brendan Howlin, Kathleen Lynch, Pádraic McCormack, Shane McEntee, Dinny McGinley, Paul McGrath, Liz McManus, Arthur Morgan, Breeda Moynihan-Cronin, Catherine Murphy, Gerard Murphy, Denis Naughten, Dan Neville, Caoimhghín Ó Caoláin, Fergus O'Dowd, Brian O'Shea, Jan O'Sullivan, Séamus Pattison, Willie Penrose, John Perry, Pat Rabbitte, Michael Ring, Eamon Ryan, Seán Ryan, Trevor Sargent, Joe Sherlock, Róisín Shortall, Emmet Stagg, David Stanton, Liam Twomey, Mary Upton)

Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Stagg and Neville.

Amendment declared lost.

Bill reported without amendment, received for final consideration and passed.

Sitting suspended at 5.40 p.m. and resumed at 7 p.m.