Michael Ahern (Cork East, Fianna Fail)

I will set out what section 3 does. It enables the Minister to make orders or regulations to control brokering activities in accordance with the EU Common Position 2003/468/CFSP of 23 June 2003. This provides for controls to be imposed on brokering activities undertaken in the State — and outside the State, if undertaken by an Irish citizen or company.

The issue of extraterritoriality was a key consideration when framing this section. A person normally resident here could, for example, arrange for an arms transfer while temporarily outside the State in relation to goods that at no point transit through Ireland. In the absence of appropriate legislation, on his or her return to Ireland no prosecution could follow, notwithstanding that an arms embargo had been breached or that Irish export control laws could have been evaded. There are, of course, certain challenges as regards the enforcement of extraterritorial controls. However, on balance I consider it preferable to have such controls in place so that if documentary evidence concerning illicit arms brokering becomes available, for example, as a result of the sharing of intelligence between law enforcement agencies, then the State has the capacity to mount a successful prosecution.

On consideration of Senator Quinn's questions on Second Stage, as well as the amendment, as currently drafted the section enables Ireland to comply with the EU Common Position. However, as I promised last week during the Second Stage debate, the Department has looked into the possibility of expanding the scope of the extraterritorial controls to include persons normally resident in Ireland as well as citizens. Preliminary inquires indicate this matter will require some investigation and I am seeking the advice of the Office of the Attorney General as to the feasibility of the proposal. The main issue is that while there are good precedents in international law for exercising extraterritorial controls on a country's citizens and companies, the situation as regards non-national residency is less clear.

A further complication is that there is no single legal definition of "resident". For example, a person who has resided in the jurisdiction for 183 days or more in one year, or 280 days in two years, is regarded as being resident for taxation purposes. If one is resident for three consecutive tax years one acquires the status, "ordinarily resident". This is not the same as the concept, "domiciled", which is usually interpreted as an intention to reside permanently in the country.

As it has not been possible to resolve the issues raised in the time available, the Government is not in a position at this time to accept this amendment. However, if I am advised that the extension of brokering controls along the lines proposed by Senator Quinn is legally feasible, then it is my intention to table an amendment to this effect when the Bill comes before the Dáil on Committee Stage.