Trevor Ó Clochartaigh (Sinn Fein) | Oireachtas source

Go raibh míle maith agat a Leas-Chathaoirligh. Cuirim fáilte roimh an Aire Stáit agus fáilte roimh na feidhmeannaigh óna Roinn. I welcome the fact that the Bill before us will improve and formalise procedures for the operation of Ireland's diplomatic relations. I have one concern which I will address later. First, I generally welcome the introduction of this Bill which will enhance the efficiency and clarity of arrangements with respect to the staff of diplomatic missions and international organisations. The existing lack of clarity has been commented upon in the courts. The Bill will hopefully strengthen the rights of workers and their families and this is a positive development. The Vienna Convention on Diplomatic Relations 1961 and the Vienna Convention on Consular Relations 1963 codify what is perhaps one of the oldest and most accepted fields of international law, namely the formal relations between states and their official representatives. In order to facilitate the peaceful and efficient conduct of these relations, these treaties grant diplomats certain privileges and immunity, including immunity from the criminal, civil and administrative jurisdiction of the receiving state. While this is an important aspect to the functioning of peaceful international relations, such immunity has been abused by a small number of diplomats in Ireland and abroad, and it is important that we state this from the outset.

I welcome that Part 1, section 3, of the Bill repeals section 49 of the Diplomatic Relations and Immunities Act 1967, which requires Government approval for Irish citizens to be appointed to international organisations serving in Ireland. Such a requirement seems unnecessary and archaic and I welcome its repeal. I do not fully understand, however, why this requirement was there in the first place. I am sure that there was a reason behind it at the time but it is now outdated and it is good that it is being removed. Part 2, sections 4 to 8, of the Bill includes some simple technical amendments to sections 39, 40, 42A, 43 and 50 of the Diplomatic Relations and Immunities Act 1967. I welcome that it does not include an amendment to section 47 of that Act, as had initially been included in the heads of the Bill. Head 5 of the Bill sought to amend section 47 by inserting "tribunal or other adjudicatory body or administrative authority" after "in proceedings in any court". In a positive development during pre-legislative scrutiny work, the Migrant Rights Centre Ireland, MRCI, pointed out that this would extend immunity to the workplace relations bodies on matters of employment, which would be problematic and would reduce workers' rights and possible entitlements. It is critically important that employers, including embassies, are held to account by the employment laws of the State and by the workplace relations bodies. While the issue of diplomatic immunity is contested in these settings, the MRCI has been able to file claims on behalf of domestic workers employed by diplomats and has had successful claims heard in the Labour Courts and in other courts. While the original proposed amendment relies on the bodies to decide if immunity extends as a matter of law, the granting of certification in the first instance muddies the water by asserting that immunity applies as a matter of policy. The impact of such a provision could have a disproportionate impact on the rights of workers to due process where their employment rights were deemed to have been breached. It would have also acted contrary to the guidelines on the employment of private domestic employees by accredited members of the mission, as introduced by the Department of Foreign Affairs and Trade in 2015. I welcome the fact that such a provision has not been included in this Bill.

There is no problem with the vast majority of embassies, as we know, but major issues have arisen in a few well documented and controversial cases. Between 2008 and 2014 the MRCI referred nine cases to An Garda Síochána of alleged human trafficking for the purposes of forced labour involving domestic workers employed in embassies and diplomatic households. In one of the more prominent cases, a 17-year old girl travelled to Ireland to work for a diplomat's family, having been told that she would be able to work part-time and pursue her studies. On arrival, however, she found that she would be required to be the sole carer of a child with severe special needs. Her day apparently started at 5.30 a.m. and her employer assaulted her when she asked to use the phone to call her family. This was all documented. The girl was not paid for her three years of work and, worryingly, she has yet to be compensated. Another case involved three Asian women who were brought to Dublin as domestic workers for a diplomat and his family. These women worked for an average of 108 hours a week, with two of them paid €134 per month and the third paid approximately €160 per month because she had been working for the family for longer. Anyone reading the details of these cases in the newspapers would have been shocked and horrified that this could happen in Ireland in the 21st century. Human rights workers in this area have said that because such domestic workers lose their visa status when they leave the employ of the embassy staff member, many feel bound to their employer and may be forced to stay in exploitative situations as a result. This is an anomaly that needs to be addressed. I thank the Domestic Workers Action Group, DWAG, for doing so much work in this area to highlight these difficulties. Under the Department's new guidelines, diplomats have to sign a contract agreeing to pay minimum wages; link workers with the MRCI; and allow for labour inspections. This is significant and extremely welcome. We know, however, that enforcement remains problematic due to protections provided by diplomatic immunity under the Vienna Convention on Diplomatic Relations 1961.

I have deep concerns about Part 3, section 9, which seeks to amend the Irish Nationality and Citizenship Act 1956 to provide that any period of time spent in the State while exempt from immigration controls, as domestic workers in embassies are, is not reckonable for residency in the context of naturalisation.We believe that this is an important right that should not be undermined or interfered with in this way. It also contradicts other important recent amendments to immigration laws which support those workers. I will seek to introduce an amendment on Committee Stage in that regard.

We also have problems with section 9(d). I know they are shared with the Migrant Rights Centre Ireland and lawyers in the field. I thank them for discussing this Bill with us and offering their opinions. The first issue is that the number of citizenship applications, which include a period of residence to which section 2(1A) of the Immigration Act 2004 applies, is negligible and is not sufficient to warrant or necessitate the inclusion of section 9(d) in the Bill, as proposed.

The second issue is that the Minister has absolute discretion in deciding to grant citizenship. The requirement for sufficient reckonable residence is only one of the criteria which must be considered. As such, section 9(d) is unnecessary and is in fact disproportionate in light of the stated objective and would have a negative impact on a vulnerable group of people.

A number of well-documented cases of exploitation and human trafficking of diplomatic staff such as private domestic employees has arisen in Ireland. The staff found themselves in need of humanitarian leave to remain or were identified as victims of human trafficking.

The third issue is that Irish case law supports taking a more flexible and progressive approach in cases involving serious rights violations and the leaning away from rigid standardisation. In such cases a more proactive, flexible and rights-based approach is required. Section 9(d) only serves to restrict further the ability of those most in need of protection to apply for citizenship, its accompanying benefits and increased security.

The removal of the section would also assist the State in fulfilling both its domestic and international obligations in ensuring the promotion and protection of fundamental human rights. Its inclusion undermines our obligations in this regard. As the section has such serious implications I will table amendments on Committee Stage as I would like to see it removed.

Section 10 in Part 3 amends the Immigration Act 2004 to specify particular categories of diplomatic and associated persons who are exempt from mainstream immigration controls. That is welcome because it allows domestic workers in diplomatic missions or diplomatic households to be accompanied by their immediate family members during their posting in the State, which is a positive step. During the pre-legislative scrutiny of the Bill, representatives of the Migrant Rights Centre Ireland pointed out that the explanatory note defines domestic workers as inclusive of service staff but that subsections of the legislation were unclear as to whether service staff were included. They requested a subsection to specify that a member of the private staff is inclusive of service staff. I welcome that section 10 inserts subsection (1A)(b) which expressly specifies that private servants are included. I welcome the fact that officials in the Department are listening as part of the pre-legislative scrutiny of legislation and are taking ideas on board.

Section 11 of Part 3 amends the Employment Permits Act 2003 to permit a foreign national family member of a foreign government employee on posting to the State who falls within the terms of a bilateral agreement entered into with another government to access the labour market without the need for an employment permit. That is a sensible and welcome amendment. It makes Ireland a much more welcoming place. However, we must ask about the situation regarding domestic workers in embassies and diplomatic households who are currently bound to their employers. If they try to leave, they lose their legal right to reside and work in the State. Should they not be included in an amendment to the Employment Permits Act 2003 and be allowed to apply for other jobs in the State? I am interested in hearing the Minister’s views in this regard, and that is something I might propose on Committee Stage. I bprionsabal, cuireann muid fáilte roimh cuid mhaith de na forálacha atá sa Bhille seo ach tá roinnt deacrachtaí againn agus beidh muid ag cur leasuithe chun cinn ar Céim an Choiste.