John McGuinness (Carlow-Kilkenny, Fianna Fail)

The House will recall that Senator Quinn tabled an amendment on Committee Stage last year that sought to extend the scope of extra-territorial brokering controls beyond Irish citizens and companies to include non-Irish nationals resident in the country. At the time, the Government undertook to obtain legal advice on the proposal and, should it prove favourable, to introduce a corresponding amendment when the Bill reached the Dáil.

The section was subjected to the closest scrutiny by my Department and the Attorney General's office to determine whether there was a way in which to move forward on the proposal. As indicated in last year's debate in the House, there were serious concerns in respect of the lack of a single definition of a resident under Irish law. This contrasted with the situation in other countries, for example, where there is a civil registration requirement for all residents. There was also a question on the extent to which the State can attempt to impose extra-territorial controls. The possibility was raised that the inclusion of such a provision in the legislation could create the basis for a legal challenge to the Act. For example, this course of action could be taken by parties to whom we might wish to apply controls. Regrettably, I concluded that, while desirable from a policy viewpoint, the legal considerations were such that this worthy amendment might create more problems than it would solve. For this reason, the Government could not accept it.

The scrutiny had an impact in that it resulted in the identification by the Attorney General of a potential problem with the section as drafted. He pointed out correctly that the extra-territorial brokering controls should only be exercised outside the EU, as each member state had a similar obligation to control brokering activities within their jurisdictions. Were Ireland to have the capacity to control brokering activities in another EU member state, we might somehow be implying that we do not trust our partners to comply with their obligations. For this reason, the Government tabled the amendment which excludes from Irish control brokering activities carried out in another EU member state. It also provides that brokering activities undertaken outside the State on foot of an authorisation by another EU member state would be outside the scope of Irish control.

Senator Carty raised a question on other brokering issues. There are regulations on this matter and Common Position 2003/468 has been adopted in this regard by the EU. This common position is applied and deals with the question raised by the Senator.