Dáil debates

Wednesday, 31 May 2006

International Criminal Court Bill 2003: Report Stage (Resumed) and Final Stage.

 

Debate resumed on amendment No. 27:

In page 14, to delete lines 13 to 26 and substitute the following:

"14.—(1) In proceedings for an offence under this Part—

(a) the measures specified in paragraphs 1 and 5 of Article 68 (protection of victims and witnesses and their participation in proceedings) shall, where appropriate, be taken during the investigation and prosecution of the offence, and

(b) the court concerned shall, where appropriate, take the measures specified in paragraphs 1 to 3 and 5 of that Article.

(2) Any such measures or the manner in which they are taken shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

(3) An application may be made in any such proceedings by or on behalf of the Director of Public Prosecutions for necessary measures to be taken for the protection of any servants or agents of the State involved in the proceedings and for the protection of confidential or sensitive information; and the court may grant the application if satisfied that it is in the interests of justice to do so.".

—(Minister for Justice, Equality and Law Reform).

Amendment agreed to.

12:00 pm

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Amendment No. 28 is an alternative to amendment No. 27 and cannot be moved. Amendment No. 58 is related.

Amendments Nos. 28 and 29 not moved.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 30:

In page 16, lines 6 and 7, to delete "Act of 2003" and substitute "European Arrest Warrant Act 2003".

Amendment agreed to.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 31:

In page 16, line 14, to delete "Act of 2003" and substitute "European Arrest Warrant Act 2003".

Amendment agreed to.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 32:

In page 17, lines 2 and 3, to delete "Act of 2003" and substitute "European Arrest Warrant Act 2003".

Amendment agreed to.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Amendments Nos. 33 and 34 are related. As Deputy Ó Snodaigh is not in the Chamber, amendment No. 33 cannot be moved.

Amendment No. 33 not moved.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 34:

In page 17, lines 22 to 24, to delete all words from and including ", in" in line 22 down to and including "proceedings" in line 24 and substitute "in accordance with Article 94.1".

This amendment proposes to reflect more accurately the circumstances in which a postponement of the certification of a request by the Minister may be made. On the advice of the Parliamentary Counsel, this formula of words, which makes a direct reference to Article 94.1 of the Rome Statute, will avoid any conflict arising relating to the length of time for which the postponement may take place and the manner in which it takes place. As the Rome Statute sets out that the postponement must be carried out in consultation with the International Criminal Court, it would be inappropriate to change this provision to a mandatory one as proposed by Deputy Ó Snodaigh's amendment No. 33. This would interfere with the discretion afforded to the court by the statute.

Amendment agreed to.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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As Deputy Howlin is not in the Chamber, amendment No. 35 cannot be moved.

Amendment No. 35 not moved.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 36:

In page 17, between lines 31 and 32, to insert the following:

"(5) The Minister, if he or she decides to grant a request for the surrender of a person who is being proceeded against or is serving a sentence for an offence that is not an ICC offence, shall consult the Court in accordance with Article 89.4.".

This is a drafting amendment and is being included to ensure the intentions of Article 89.4 are fully taken into account.

Photo of Gerard MurphyGerard Murphy (Cork North West, Fine Gael)
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Will the Minister of State clarify the term "court"?

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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It refers to the International Criminal Court.

Amendment agreed to.

Photo of Rory O'HanlonRory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Amendments Nos. 37 to 39, inclusive, and 64 to 66, inclusive, are related and can be taken together.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 37:

In page 17, line 39, to delete "a document purporting to be".

These amendments are proposed to overcome concerns expressed by Deputies Jim O'Keeffe and Costello on the question of proof of documents. The formula proposed in amendments No

Subsection (2) has been redrafted to reflect the position that the court has inherent jurisdiction to accept the document purporting to be either a certificate from the Minister or a copy unless there is evidence to the contrary. Amendments Nos. 64 to 66, inclusive, address similar concerns regarding a certificate issued by the Minister relating to whether a state is or not a state party by the statute under section 63(1)(f) and to a certificate that a request is unlikely to be received from the International Criminal Court for the enforcement of an International Criminal Court freezing order as provided for in the new section 38(8)(b)(ii) being inserted by amendment No. 66. I trust this approach meets the concerns of Deputies and, therefore, amendment No. 38 is not required.

Photo of Gerard MurphyGerard Murphy (Cork North West, Fine Gael)
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We had some concerns about reducing the requirements for legal proof in court. The Minister has adequately dealt with these concerns.

Amendment agreed to.

Amendment No. 38 not moved.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 39:

In page 18, to delete lines 1 to 3 and substitute the following:

"(2) A document purporting to be—

(a) a certificate referred to in subsection (1)(a), or

(b) a copy of any document referred to in subsection (1)(b),

is admissible, without further proof, as evidence of the matters mentioned in it.".

Amendment agreed to.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 40:

In page 19, line 4, after "warrant" to insert "or copy".

The purpose of this amendment is to ensure no technical loophole exists whereby a suspect might evade arrest because the arresting officer did not have in his or her possession a copy of the warrant at the time of arrest. This was a concern expressed by Deputy Jim O'Keeffe on Committee Stage. I am pleased to allay his concerns with this amendment.

Amendment agreed to.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 41:

In page 22, lines 5 to 7, to delete all words from and including "and" in line 5 down to and including "jurisdiction" in line 7.

This is a drafting amendment to remove a subclause in section 27(b) which is unnecessary as the circumstances outlined in that subclause are covered by the provisions in section 31(a).

Amendment agreed to.

Amendment No. 42 not moved.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 43:

In page 24, lines 2 and 3, to delete "Act of 2003" and substitute "European Arrest Warrant Act 2003".

Amendment agreed to.

Amendment No. 44 not moved.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 45:

In page 26, between lines 14 and 15, to insert the following:

"(i) an order under section 4 or 4A of the Proceeds of Crime Act 1996,".

Amendment agreed to.

Amendments Nos. 46 and 47 not moved.

Photo of Michael WoodsMichael Woods (Dublin North East, Fianna Fail)
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Amendments Nos. 48 and 49 are related and will be discussed together.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I move amendment No. 48:

In page 28, line 4, after "made" to insert the following:

"and for the purposes of this paragraph, proceedings shall not be deemed to have concluded until the International Criminal Court has decided whether or not to make an ICC order, and in the event that such an order is made, until such time as any application under section 40 is finally determined, or until the Minister certifies that no application under that section is likely to be made".

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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The present text of section 37(7)(d) requires that a freezing order must be discharged on the application of the International Criminal Court or at the conclusion of proceedings of the order. This amendment specifies that proceedings for the freezing order shall continue until enforcement or the Minister certifies that it is unlikely that the International Criminal Court shall be seeking enforcement. Amendment No. 49 based on an Opposition amendment on Committee Stage, similar to amendment No. 48, allows for some useful flexibility.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I apologise to the House for being late as there are other matters in the justice area today. The purpose of the amendment No. 48 is to ensure no gap occurs between the making of a freezing order under section 37 and the making of an enforcement order under section 39. As section 39(7) stands a freezing order could lapse on the conclusion of the International Criminal Court proceedings. I am grateful the Minister has reflected on this and has tabled amendment No. 49.

Amendment, by leave, withdrawn.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 49:

In page 28, between lines 4 and 5, to insert the following:

"(8) For the purposes of subsection (7)(d), proceedings before the International Criminal Court have concluded—

(a) where the Court determines not to make an ICC order, on the date of the determination,

(b) where the Court makes such an order—

(i) on the date of the final determination of an application under section 40 for its enforcement, or

(ii) on the issue by the Minister of a certificate that a request is unlikely to be received from the International Criminal Court for the enforcement of the order.".

Amendment agreed to.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I move amendment No. 50:

In page 28, line 12, after "time" to insert the following:

", having given such notice, if any, as appears to the Court to be appropriate to persons likely to be affected thereby,".

Where a court proposes to make an order appointing a receiver it should be required to give notice to the persons likely to be affected. This would not apply where notice would be inappropriate such as where there was an immediate danger of the destruction of the property. Accordingly, all that is required in my suggested amendment is that appropriate notice would be given to parties affected.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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This amendment relates to the provisions for discharging a freezing order. The amendment proposes to provide for the High Court to give notice to appropriate persons likely to be affected. The Office of the Attorney General has been consulted on this proposed amendment and its advice is that the amendment is unnecessary. The High Court has inherent discretionary power to give notice, as required, and the advice received is that there is no need to specifically state this. Accordingly, it is not proposed to accept the amendment.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I am surprised at that advice. We are dealing with other legislation where affected parties must be notified and the advice given is that we should specify it. Will the Minister for State clarity whether the advice is that this notice will be provided notwithstanding there being no specific provision or is it not intended that affected parties would be notified?

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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The intention is to leave the discretion with the court.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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That is not satisfactory.

Amendment put and declared lost.

Photo of Michael WoodsMichael Woods (Dublin North East, Fianna Fail)
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Amendment No. 51 in the name of Deputy Howlin. Amendment No. 55 is cognate. Amendments Nos. 51 and 55 will be discussed together.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I move amendment No. 51:

In page 29, line 34, to delete "2003" and substitute "2005".

This amendment is simply an update and a correct citation clause for the Companies Act, which has changed since the Bill was published.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I am grateful to Deputy Howlin for these amendments. They rightly take account of the enactment last year of the Investment Funds, Companies and Miscellaneous Provisions Act and, as Deputy Howlin stated, the amendments reflect the correct citation clause for the Companies Act. Accordingly, I propose to accept them.

Amendment agreed to.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I move amendment No. 52:

In page 31, line 1, after "order" to insert the following:

"which appeared to the High Court to be a sum which might be realised by the person to whom the order is directed".

This is an important amendment which relates to the issue of circumstances in which a person may be imprisoned for failure to pay a fine. There are strong international legal prohibitions on the imprisonment of individuals for inability to pay monetary sums.

This section is adapted from the Criminal Justice Act 1994 and relates to imprisonment for failure to pay confiscation orders made following conviction for drug trafficking offences. However, the critical feature of the imprisonment system under the Criminal Justice Act is that a confiscation order may be made only for such amount as the court thinks might be realised, in other words, according to the ability of the individual to pay as opposed to the total sum of profit from drug trafficking. For example, where a person makes a profit of €10,000 from trafficking drugs but spends €5,000 of it on feeding his or her own habit, the remaining €5,000 is the realisable sum, in other words, under the Criminal Justice Act a person is not liable to be imprisoned for failure to comply with a confiscation order in circumstances where he or she is palpably unable to comply with the order because the money or resources are not available to him or her. For that reason, under the Criminal Justice Act there should be no question of imprisonment for simple inability to pay where that is clear to the court.

This safeguard is conspicuous by its absence from section 39. Under the section, particularly under section 39(9), the High Court is empowered to order a person to pay the full amount of the ICC order, with the person facing imprisonment for up to ten years where he or she is in default of that order. This is a worrying principle and, according to the advices available to me, may be constitutionally infirm — we have enough experience of constitutional infirmity in recent times. Accordingly, I suggest the insertion of a qualifier that the amount must be one the court considers is realisable.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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This amendment seeks to insert additional wording in section 40(9). Subsection (9) provides that if at any time after the making of the enforcement order it is reported to the High Court that any sum payable under the ICC order remains unpaid, the court may order the person to whom the ICC order relates be imprisoned. The amendment proposes that this provision will only apply in cases of sums payable under the ICC order which appeared to the High Court to be a sum which might be realised by the person to whom the order is directed.

This amendment is unnecessary. No court will imprison a person if he or she cannot realise his or her assets. Subsection (10) provides that no order under subsection (9) shall be made until the person to whom the ICC order relates has been given a reasonable opportunity to make representations to the court. Therefore, the person can outline to the court any factors that affected his or her payment in compliance with the ICC order. Subsection (9) is modelled on section 19(2) of the Criminal Justice Act 1994 which deals with the general enforcement of confiscation orders. The existing wording is sufficiently flexible and I do not propose to accept the amendment.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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That is most surprising and unfortunate. The Minister of State stated that the court would have to do what I, in my amendment, ask that it should do. If that is the Minister's intent, why can we not be explicit in making it the intent?

The following simple wording is what I want to insert: "which appeared to the High Court to be a sum which might be realised by the person to whom the order is directed". For the sake of clarity, there is no difficulty in the Oireachtas laying out that as a condition of imprisonment. I am not sure the Minister of State was correct in stating what would be automatically the case. Unfortunately, there are too many people already in the prison system for the non-payment of monetary fines, but that is a separate argument.

The amendment is a worthy one. The Minister of State has accepted the principle of it and I have no idea why he will not accept the substance of it.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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As I stated, subsection (10) provides that the person to whom the order relates be given a reasonable opportunity to make representations to the court and, therefore, can outline any factors which would affect his or her payment in compliance with the order. We are quite adamant that we will not accept this amendment. It is unnecessary.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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Although I do not know whether the Minister of State has ever been in the courts, one does not need a statutory provision to state that citizens of the State can make representations to the court because it is a constitutional right. There are no bonus points available for stating that under subsection (10) persons must be given a reasonable opportunity to make representations to the court; there is a constitutional right to do so.

What I am saying is quite different, that where there is a danger of imprisonment the courts, under this enactment, must be able to determine that the person is in a position to pay the monetary fine or realise the asset sought by the court. The provision that the Minister of State suggests is quite separate and extraneous to that argument. I do not see why the principle, if he has accepted it, should not be captured in the Bill.

Amendment put and declared lost.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 53:

In page 31, line 30, to delete "£325,000" and substitute "€325,000".

This is a technical amendment to correct a typographical error which inserted a pound symbol rather than a euro symbol.

Amendment agreed to.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I move amendment No. 54:

In page 33, lines 7 and 8, to delete "commencement of this section" and substitute "passing of this Act".

Amendment agreed to.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I move amendment No. 55:

In page 34, line 14, to delete "2003" and substitute "2005".

Amendment agreed to.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I move amendment No. 56:

In page 41, line 11, after "it" to insert the following:

", provided that where such material is to be transmitted out of the State, arrangements shall be made for the return of such material following the conclusion of proceedings before the International Criminal Court, and, where human remains are transmitted out of the State under this subsection, subject to arrangements for the reburial of such remains in the State or in such other place as is directed by the next of kin following the conclusion of such proceedings".

Under the subsection as it stands, bodies can be dug up in the State and transmitted to the International Criminal Court in The Hague with no provision set for their return or reburial. In addition, there is no provision for the return of other material that may be seized within the State. Having considered the matter, we believe that some provision in this regard is appropriate and should be part of the legislation to comply with common decency.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I support Deputy Howlin's amendment. If no provision is made for material to be returned it could impact on future cases because the Bill specifies that the ICC would take precedence over cases in this State but if its case were to fail it would still allow the State to proceed with another charge. However, if the material sent to The Hague is not returned when its case is concluded, this could endanger any future prosecution in Ireland.

It is important that material is returned but it is also important that the bodies of loved ones are respected and that they would be reinterred as quickly as possible to ensure the minimum grief is caused to their families at such a time. The amendment is worthwhile as it puts that extra duty on the State to ensure we would get back all evidence supplied to the ICC so that our legal system can have all the evidence at its disposal.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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This amendment proposes to amend subsection (13) of section 51. Section 51 deals with locating people and identifying or locating property. Subsection (13) deals with the transmission of documentation to the ICC and provides for the transmission to the ICC of any material obtained under this section in accordance with the directions of the Minister etc.

The Minister had agreed to consider this on the basis of replacing "shall" with "may" in the first line. However, having consulted the parliamentary counsel, he is satisfied that such an amendment is neither desirable nor necessary and that the provisions of section 51(2)(b) are sufficient to cover the circumstances envisaged by the proposed amendment. Therefore, I do not propose to accept the amendment.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I would like the Minister of State to explain what exactly is captured by section 51(2)(b) and state how it meets the point I made?

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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It states that any——

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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Will the Minister of State read out the section to which he referred?

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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Section 51(2)(b) states: "That the material will be returned when no longer required for the purpose so specified (or any other purpose for which such consent has been obtained), unless the Minister indicates that its return is not required."

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I think the Minister would believe that the insertion I propose is much more comprehensive. It is also much more respectful, particularly in terms of human remains and is sensitive to the wishes of the loved ones of individuals. I do not think we should leave it as a discretionary issue. It should be clear and should be set out in a respectful way in legislation. These are sensitive matters and are not discretionary, to be left to the whim of the Minister of the day.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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The current wording gives the Minister flexibility as to the conditions he wishes to attach to the transmission of evidence to the ICC. The Minister may well require the return of such material following the conclusion of proceedings before the ICC. However, there may also be cases where there is no occasion to require the return of the material and the subsection provides that flexibility. In contrast, the Deputy's amendment would require the return of all material regardless of whether we wanted it back.

The issue of human remains is a very sensitive one and I fully agree that the feelings and requirements of the next of kin should be respected at all times. There can be no question but that the State would act honourably in such cases and would arrange for the reburial of the remains as required. However, I think it is very unlikely that human remains would ever be transmitted to the ICC from the State. The autopsy on the remains would take place in the State and if the ICC needed any further examination of the remains it is far more likely that it would send experts over to the State rather than request that the remains be sent to The Hague.

While I have no objection to the principle behind the amendment, the current wording of the subsection provides the necessary flexibility. Accordingly, I do not propose to accept the amendment.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I am surprised and disappointed that the Minister is taking a dogmatic line on this. What he is saying is that the State will act responsibly, simpliciter. That is all well and good, but we are here to make sure we set out in law the duties and responsibilities of the State. If the simple view were true that all Ministers would carry out their duties responsibly and well, we would not get into half the messes we get into.

We need to lay out the framework in which we believe proper conduct is captured. Certainly, in regard to human remains, there may well be rare circumstances where serious criminal charges are being heard and forensic materials may well be required for a contested case, rather than simply the pathology report. We have to make provision for these matters. That is what a broad-seeing legislature does. I am disappointed the Minister feels it is good enough to simply say we should leave it to the Minister and the State, that future Governments will act responsibly in all circumstances and that we do not need to set out what are decent standards in primary legislation.

Amendment put and declared lost.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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Are we taking Nos. 57 and 58 together?

Photo of Michael WoodsMichael Woods (Dublin North East, Fianna Fail)
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Not according to my information.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I move amendment No. 57:

In page 42, line 5, after "oath" to insert "or affirmation".

This is a standard provision that is not adequately covered by the Interpretation Act 1937. I want to make this clear before the Minister of State tells me it is covered. Many statutes provide expressly for the possibility of oath or affirmation, a classic example being the Tribunal of Inquiries Act, which is still the fundamental law relating to tribunals in the State. It is the norm to insert "oath" or "affirmation" in Bills. I urge the Minister to accept the amendment rather than say that it is covered by some catch-all enactment elsewhere.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I am hardly needed at this stage. This amendment proposes to insert "affirmation" after "oath" in subparagraph (i) of subsection (3)(a) of section 52. Subsection (3)(a) provides inter alia that the judge in the taking of evidence has various powers, including the power to take evidence on oath. Amendment No. 57 proposes to extend the power to take evidence on oath or affirmation. I am advised that the Schedule to the Interpretation Act 2005 covers the matter and defines the word "oath" to allow a person to affirm instead of swearing an oath. Therefore, the word "oath" in legislation encompasses an affirmation. Accordingly, the proposed amendment is unnecessary.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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This is a small but important matter. It was once argued in this House that it was understood that the word "man" encompassed women as well as men and that, therefore, it was not necessary to include the word "woman". Such an argument would not be accepted today. We now live in a different society in which not everyone swears on oath. In the same way as we use "he or she", it should be normal parlance to use "oath or affirmation". This is the nature of the new society in which we live. The notion that affirmation is captured by the word "oath" is not acceptable to many people. I ask the Minister of State to reflect on this and possibly make an executive decision to accept this amendment because it does not damage the Bill.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I stand over the Schedule to the Interpretation Act 2005, which defines the word "oath" to allow a person to affirm instead of swearing on oath.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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God forbid that the Minister of State should walk off the reservation.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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The word "oath" in legislation encompasses an affirmation.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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The spectacle of Ministers simply following instructions to read out a prepared script and not making decisions is becoming tedious. Although the Minister for Justice, Equality and Law Reform has many weaknesses, he listens to alternative viewpoints and changes his mind when such viewpoints are reasonable. It is pointless dealing with the Minister of State if he is not prepared to listen to alternative viewpoints. It is not a good way to make law and wastes the time of the House. We might as well rubber-stamp the Bill without bothering to move amendments.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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Deputy Howlin has had numerous opportunities on Committee Stage to raise this issue with the Minister, who has attended every previous debate on this Bill. The Minister does not accept this amendment.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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The Acting Chairman is giving the Minister of State leeway.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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To be fair, the Government has taken on board a number of issues raised by Deputy Howlin.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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That is true.

Amendment put and declared lost.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I move amendment No. 58:

In page 42, line 10, after "intimidation" to insert the following:

"or to the prohibition of publication of information tending to identify any person the court considers ought not to be identified".

Amendment put and declared lost.

Photo of Michael WoodsMichael Woods (Dublin North East, Fianna Fail)
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Amendment No. 59 is out of order because it does not arise from Committee Stage proceedings.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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The Minister of State might wish to discuss it.

Amendment No. 59 not moved.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I move amendment No. 60:

In page 46, line 42, after "detention" to insert the following:

", and whether such orders were made by the Court before or after it commenced sitting in the State".

This amendment is designed to deal with a situation where the entire trial does not take place within the State but some order is made outside the State in respect of a trial, part of which takes place within the State. Clearly, an order made outside the State by the ICC should be accepted as valid within the State. This amendment aims to achieve clarity in this regard.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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Section 58 provides for sittings in the State of the ICC and subsection (2) stipulates that orders made by the ICC while sitting in the State will have the same effect as though the orders were made by the Central Criminal Court. The proposed amendment seeks to broaden the scope of subsection (2) by providing that orders made by the ICC before or after sitting in the State will also have effect as if they were orders made by the Central Criminal Court.

This proposal would seem to give orders of the ICC direct application in this country, with uncertain results. The suggested new material is being added after "detention" in line 42 of page 46, but before the closing bracket. Thus, it appears that orders for imprisonment or detention made by the ICC before or after sitting in the State would have direct effect in the State.

As requests made by the ICC for the arrest of persons will be processed in accordance with the provisions of Part 3 of the Bill, this proposal is unnecessary. Under the provisions of Part 3, only the High Court can issue a warrant for the arrest of a person. In addition, the proposed amendment seems to go beyond the intent of the Rome Statute and the related Agreement on Privileges and Immunities of the International Criminal Court. The Rome Statute, in article 4, provides for the exercise of the functions and powers of the ICC on the territory of a state party. The agreement in article 12 provides that where the ICC exercises its functions outside its headquarters in The Hague, it may conclude with the state concerned an arrangement concerning the provision for the appropriate facilities for the exercise of its functions. I cannot accept the proposal to give the ICC orders for imprisonment or detention direct effect in the State and, accordingly, it is not proposed to accept the amendment.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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The Minister of State's argument is reasonable so I withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Michael WoodsMichael Woods (Dublin North East, Fianna Fail)
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Amendment No. 61, which arises out of Committee Stage proceedings, is related to amendment No. 63. Amendment No. 62 is consequential on amendment No. 63. Amendments Nos. 61 to 63, inclusive, will be discussed together by agreement.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I move amendment No. 61:

In page 47, line 29, to delete "a state party to the Statute" and substitute "the State or another state".

It appears that in amendment No. 63, the Minister of State is accepting the point I am making so I will not waste time discussing it. The section provides that any country which has signed up to the statute of the ICC cannot claim diplomatic or state immunity. However, this seems to acknowledge that any country which refuses to sign up to the statute can continue to claim such immunity. This would seem to be an inappropriate admission which would only benefit countries which seek to undermine the functioning of the ICC, to which this country is party and to which this legislation binds us and transposes into our domestic law. The general provision proposed by me changes this, while the Minister of State's amendment appears to do likewise. I hope he will confirm that this is the intention of amendment No. 63 and the consequential amendment No. 62.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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Amendments Nos. 62 and 63 cover the issues raised by Deputy Howlin in amendment No. 61.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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Given this assurance by the Minister of State, I withdraw the amendment.

Amendment, by leave, withdrawn.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 62:

In page 47, line 40, to delete "law." and substitute "law;".

Amendment agreed to.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 63:

In page 47, after line 40, to insert the following:

""state party to the Statute" includes a state which has accepted the jurisdiction of the International Criminal Court in accordance with Article 12 (preconditions to the exercise of jurisdiction).".

Amendment agreed to.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 64:

In page 48, line 43, to delete "and".

Amendment agreed to.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 65:

In page 49, to delete lines 3 and 4 and substitute the following:

"admissible, without further proof, as evidence of that matter, and".

Amendment agreed to.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 66:

In page 49, between lines 4 and 5, to insert the following:

"(g) a document purporting to be a certificate by the Minister under section 38(8)(b)(ii) is admissible, without further proof, as evidence of the matters mentioned in it.".

Amendment agreed to.

Photo of Michael WoodsMichael Woods (Dublin North East, Fianna Fail)
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Amendments Nos. 67 and 68 are out of order. The international agreement Schedule to the Bill is not subject to amendment.

Amendments Nos. 67 and 68 not moved.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I move amendment No. 69:

In page 129, after line 48, to insert the following:

"SCHEDULE 2

CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE. ADOPTED BY THE GENERAL ASSEMBLY OF THE UNITED NATIONS ON 9 DECEMBER 1948

THE CONTRACTING PARTIES,

HAVING CONSIDERED the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilised world;

RECOGNIZING that at all periods of history genocide has inflicted great losses on humanity; and

BEING CONVINCED that, in order to liberate mankind from such an odious scourge, international co-operation is required,

HEREBY AGREE AS HEREINAFTER PROVIDED:

Article I

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

Article II

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Article III

The following acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.

Article IV

Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

Article V

The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in article III.

Article VI

Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

Article VII

Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition. The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.

Article VIII

Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.

Article IX

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Article X

The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of 9 December 1948.

Article XI

The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation to sign has been addressed by the General Assembly.

The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations.

After 1 January 1950 the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State which has received an invitation as aforesaid.

Instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article XII

Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.

Article XIII

On the day when the first twenty instruments of ratification or accession have been deposited, the Secretary-General shall draw up a procés-verbal and transmit a copy thereof to each Member of the United Nations and to each of the non-member States contemplated in article XI.

The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession.

Any ratification or accession effected subsequent to the latter date shall become effective on the ninetieth day following the deposit of the instrument of ratification or accession.

Article XIV

The present Convention shall remain in effect for a period of ten years as from the date of its coming into force.

It shall thereafter remain in force for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiration of the current period.

Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations.

Article XV

If, as a result of denunciations, the number of Parties to the present Convention should become less than sixteen, the Convention shall cease to be in force as from the date on which the last of these denunciations shall become effective.

Article XVI

A request for the revision of the present Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General.

The General Assembly shall decide upon the steps, if any, to be taken in respect of such request.

Article XVII

The Secretary-General of the United Nations shall notify all Members of the United Nations and the non-member States contemplated in article XI of the following:

(a) Signatures, ratifications and accessions received in accordance with article XI;

(b) Notifications received in accordance with article XII;

(c) The date upon which the present Convention comes into force in accordance with article XIII;

(d) Denunciations received in accordance with article XIV;

(e) The abrogation of the Convention in accordance with article XV;

(f) Notifications received in accordance with article XVI.

Article XVIII

The original of the present Convention shall be deposited in the archives of the United Nations.

A certified copy of the Convention shall be transmitted to each Member of the United Nations and to each of the non-member States contemplated in article XI.

Article XIX

The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.".

This is a recital of the convention. If the Minister of State recalls, we debated this matter earlier and I argued that the Bill should be readily available to be read in this context.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I do not agree to the amendment.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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Why would the Minister of State not attach a recitation of the convention to the Bill? What damage would it do?

Photo of Michael WoodsMichael Woods (Dublin North East, Fianna Fail)
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We are not permitted to discuss it.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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There is a great deal that we are not permitted to do.

Photo of Michael WoodsMichael Woods (Dublin North East, Fianna Fail)
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The Deputy has made his point.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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Will the Minister of State answer? Would he not like to attach a recitation?

Photo of Michael WoodsMichael Woods (Dublin North East, Fianna Fail)
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In fairness, the Minister of State should respond.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I was here on time. This matter was comprehensively discussed on Committee Stage and Report Stage.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I might divide the House if the Minister of State is going to get stroppy. I was delayed because I was trying to do a television interview on matters currently convulsing the country. Is the Minister not aware that the public is focused on the House and expects it to do something?

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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The Minister is dealing with similar issues and I have been drafted in at short notice.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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The Government can do such, but we do not have staff or Ministers of State to jump in for us.

Photo of Michael WoodsMichael Woods (Dublin North East, Fianna Fail)
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The Deputy's apology is accepted and his situation is recognised by the Chair. Is he pressing the amendment?

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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Yes.

Amendment put and declared lost.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 70:

In page 148, lines 9 to 11, to delete all words from and including ", an" in line 9 down to and including "1973" in line 11.

Amendment agreed to.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 71:

In page 148, line 38, after "Act" to insert "2000".

Amendment agreed to.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 72:

In page 148, lines 42 to 44, to delete all words from and including ", an" in line 42 down to and including "1973" in line 44.

Amendment agreed to.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 73:

In page 149, to delete lines 18 to 35.

Amendment agreed to.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 74:

In page 149, line 48, after "1998," to insert "and".

Amendment agreed to.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 75:

In page 150, to delete lines 1 to 3 and substitute the following:

"(ii) section 7 (genocide, crimes against".

Amendment agreed to.

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I move amendment No. 76:

In page 150, lines 40 to 42, to delete all words from and including ", an" in line 40 down to and including "1973" in line 42.

Amendment agreed to.

Bill, as amended, received for final consideration.

Question proposed: "That the Bill do now pass."

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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Will the Minister of State make a brief remark on the importance of the Bill on Report Stage?

Tom Parlon (Minister of State, Department of Finance; Laois-Offaly, Progressive Democrats)
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I thank Deputies for their contribution to today's debate on the Bill and previously. I acknowledge how busy some of the Deputies have been with a number of current issues.

The Bill will give effect to the statute of the International Criminal Court, which entered into force on 1 July 2002. The statute provides for the establishment of an International Criminal Court with jurisdiction to investigate, prosecute and punish persons who commit the most serious offences of concern to the international community, namely, genocide, war crimes and crimes against humanity.

The Bill enables Ireland to fulfil the obligation under the statute to prosecute these offences domestically and provide assistance to the court in the investigation and prosecution of cases taken by the court. The Bill creates new offences of war crimes and crimes against humanity and consolidates the existing offence of genocide under the Genocide Act 1973. It will allow the State to assist the court through providing accelerated mechanisms for the arrest and surrender of persons wanted in connection with an ICC offence, dealing with requests for the freezing and confiscation of property and providing evidence during the investigation. I thank Deputies for their co-operation in dealing with the Bill.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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This is important legislation. Part of our international treaties is to ensure that the rule of law runs across the globe and tyranny, genocide and despotism are called to account. We are putting this type of order in place and I commend the Minister of State and the Government on the legislation.

Photo of Gerard MurphyGerard Murphy (Cork North West, Fine Gael)
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I thank the Minister of State and his officials for the work they have invested in the Bill. I also thank the Minister for Justice, Equality and Law Reform for accepting some of the amendments tabled by Fine Gael. It is an important and worthwhile Bill.

Photo of Aengus Ó SnodaighAengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Cosúil le Teachtaí eile, gabhaim mo bhuíochas leis an Aire sa chás seo. In ainneoin nach mbímid ar an taobh céanna go minic, sa chás seo tuigeann gach duine cé chomh tábhachtach is atá an Bille seo. Tá súil agam nach mbeidh aon bhac ar an obair atá roimh an chúirt idirnáisiúnta seo agus go mbeidh sí in ann obair i gceart gan na Stáit Aontaithe a bheith ag cur as di trí na bilateral agreements. Tá siad á dhéanamh sin faoi láthair le tíortha eile chun damáiste a dhéanamh don phrionsabal a bhí ag an chúirt seo nuair a cuireadh ar bun í.

Question put and agreed to.