Brian Lenihan Jnr (Dublin West, Fianna Fail)

The context is that of an immigration officer, or a medical inspector, examining a person where there is the prospect of that person causing immediate and serious harm to himself or herself. We can return to this issue on Committee Stage.

Senator Morrissey asked how an immigration officer could police such a section. The legislation expressly provides for the appointment of medical inspectors. It is difficult to see how a determination by an immigration officer on a matter such as this could withstand any challenge in the courts. The legislation provides that medical inspectors with competence or skill in the area can make such judgments as required.

Senator Norris referred to a number of issues. He referred to a document jointly submitted to Opposition Senators by the Irish Refugee Council, the Irish Council for Civil Liberties, and the Immigrant Council of Ireland. The submission was not furnished to the Minister or Government Senators and I thank an unidentified Opposition Senator from whom I have been able to obtain a copy. I was disturbed by one part of the submission. The Minister for Justice, Equality and Law Reform, with the consent of the Minister for Health and Children, can appoint medical inspectors with powers to examine persons believed to be non-nationals. The submission refers to this unexceptionable power. The submission contends that the section implies the use of racial profiling, where non-nationals, because of their race, colour or dissent may be singled out for examination. It then refers to a decision of the British House of Lords. It is a terrible slur on the Government to suggest that a section providing for the appointment of medical officers is racist or connotes a use of racial profiling by the Department. There is no such intention behind this legislation. A sovereign state is perfectly entitled to provide for reliance on medical advice in making determinations in a matter of this kind. While I accept that the organisations concerned have had a short time to prepare their submission, I was surprised to see this in it. There is nothing in the legislation to suggest that the provision for medical inspectors is for the purpose of introducing a form of racial profiling and I dislike that insinuation.

A number of the other points canvassed would be better dealt with on Committee Stage. The question of documentation was referred to and Senator Norris specifically referred to Tibet. Again, there is a misapprehension about the power being conferred upon the immigration officer. Section 4(3)(g) provides "that the non-national is not in possession of a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality". It is not a question of what states the Government recognises; it is a question of a person arriving in this State without any documents. Clearly, immigration officers must have, and have always had, powers to deal with such matters. Senator Morrissey postulated this point. The High Court decision has effectively said that such documents can no longer be sought. They can be sought. The operation of these powers is subject to any refugee claim that might be made. It is easy to envisage how someone who is fortunate enough to leave Tibet and arrive in Ireland might wish to make such a claim. While such a claim can be made, we must invest our immigration officers with the primary power of being able to request this documentation and act upon it.

Senator Terry suggested the Bill will criminalise Irish citizens who wish to enter the State in breach of immigration controls or, for example, failed to maintain hotel registers. The duties the Bill imposes on Irish citizens are the same as those that have operated since 1946. In fact, the duties now imposed on hotel-keepers are less onerous than those in the 1946 order. At present, all persons should be entered in hotel registers, but the new provision applies only to non-national guests. That is an example of where there is a relaxation of what is provided for in the 1946 order.

Senators Terry and Norris also said that the Bill would, for the first time, criminalise Irish citizens for failing to be in possession of a passport when arriving from outside the common travel area. This is an existing provision in Article 14 of the Aliens Order. Senator Terry queried whether the provision for reporting to an immigration officer within one month applied to non-nationals coming across the Border from Northern Ireland. There are no immigration controls on the Border. Hence, under the provision, in the case of non-nationals they are not required to report immediately but must do so within one month. That is the current position.

I have tried to deal with the various points raised by Senators in the course of their contributions. The great majority of them are more appropriate to Committee Stage but I was anxious to put those matters on the record of the House. I would like to remind Senators that there is nothing in the Bill that goes beyond what has been there since 1946. It is essential that our immigration officers have these powers and continue to exercise them. The Minister has stated — and it is part of the Programme for Government — that comprehensive legislation will be introduced regulating this area. I accept that it is both urgent and important. In the interim, however, it is essential for us to have a solid, workable body of legislation in place. Given the judgment of the High Court, it cannot be left on the basis of subordinate legislation but must be put in the form of primary legislation. Care has been taken to ensure that what is in this primary legislation reflects what was understood to be the practice before the High Court judgment.