Dara Calleary (Mayo, Fianna Fail) | Oireachtas source

Gabhaim buíochas leis an Teach as ucht an deis seo labhairt ar an mBille.

With an ever-changing geopolitical landscape and advances in technology, there is a need to strengthen and modernise the current legislative framework for export controls in Ireland. This Bill will repeal and replace the Control of Exports Act 2008. It will ensure that Ireland continues to operate a robust framework for the regulation of the export of controlled items, principally dual-use and military items. I will briefly summarise the nature and purpose of export controls to provide the House with context. I will then outline the rationale for enhancing the current Act and will finish by summarising the structure and main provisions.

Export controls are a multilateral, global mechanism that contribute to international peace and security and seek to prevent the proliferation of weapons of mass destruction and conventional weapons. Controls generally take the form of a legal obligation on exporters to obtain prior authorisation, that is, an export licence, to export designated items to other countries. The success of controls is contingent on uniform and consistent multilateral implementation. The designated items are identified in lists published by the EU. A list-based approach to controlled items aims to provide regulatory transparency and certainty for exporters. While maintaining international stability and security is at the heart of export controls, there is a need to strike a balance with the pursuit of free trade and the functioning of open markets. With that in mind, controls are targeted and proportionate and aim to minimise the burden on reputable exporters engaged in legitimate, low-risk trade.

The legislative framework for export controls in Ireland is established by both national and EU instruments. Two key EU instruments are relevant to this Bill. The first is EU Regulation No. 821 of 2021, which sets up a union regime for the control of exports, brokering, technical assistance, and the transit and transfer of dual-use items. The trade in dual-use items is an EU competence, and this regulation has direct, legal effect in all member states. However, member states are obliged to establish in national legislation effective, proportionate and dissuasive penalties applicable in the event of infringements of the provisions of the regulation. The EU regulation also provides member states with discretion to adopt certain additional national measures, such as control of dual-use items other than those listed in Annex I of the dual-use regulation. The Bill fully avails of such discretion to ensure Ireland has the most effective controls at its disposal.

Dual-use items are defined as products and components, including software and technology, which can be used for both civilian and military applications. The list of items subject to export control is set out in Annex I to the regulation. The majority of dual-use exports from Ireland are mainstream business ICT products, both hardware and software, for example, networking, data storage or cybersecurity. They are categorised as dual use as they use strong encryption for data protection purposes.

The second key EU instrument is the Council Common Position No. 944 of 2008, which defines common rules for the control of exports of military technology and equipment. The categories of military technology and equipment to which these rules should apply are set out in the EU common military list. The common position sets out eight criteria against which applications for authorisation should be assessed. The common position does not have direct legal effect in member states. The export of military items is a national competence, therefore, its provisions must be given effect by national, primary legislation. Military export controls overlap with dual-use export controls in several ways. It is vital that dual-use and military items are closely co-ordinated and that there is a common policy framework in place to ensure consistency and transparency for exporters. The Department of Enterprise, Trade and Employment is the national competent authority for export controls in Ireland. The current Act has to be updated to reflect the very significant advances in technology, new developments in business practice, updates to EU instruments, and the evolved geopolitical risk landscape.

I will now outline the structure and the key provisions of the Bill, which contains eight Parts. It has been structured to clearly set out controls for dual-use and military items, provisions for authorisations, appeals, enforcement provisions, and the penalties that apply for breach of controls.

Part 1, preliminary and general, primarily deals with matters common to legislation, including commencement, interpretation, reporting obligations, regulations and service of documents. It also designates the Minister for Enterprise, Trade and Employment as the competent authority for the dual-use regulation and repeals the Control of Exports Act 2008.

Part 2focuses on the control of dual-use items. It sets out definitions, provides for offences for breach of the directly applicable provisions in the dual-use regulation, and sets out provisions on discretional national controls on non-listed dual-use items. It covers the control of exports, brokering, technical assistance, and the transit and transfer of dual-use items. It notes the obligations, notification and direction controls, which are set out in sections 13 to 20, with respect to brokering services, providers of technical assistance, and the transit and transfer of dual-use non-listed items.

Part 3focuses on the control of military items and sets out definitions specific to this Part. Section 23 establishes a prescribed list of military items to be known as the national military export control list.This list will primarily comprise items from the common military list of the EU. Sections 24, 25 and 26 provide that it is an offence to export, provide brokering services or facilitate the transit of a military item without an authorisation. Section 27 provides an exemption for the temporary export of military items by the Defence Forces or An Garda Síochána.

Part 4 describes provisions related to authorisations. Sections 33 to 36, inclusive, set out the procedural aspects of applying for an authorisation for the export of dual-use equipment and military exports. It provides for consultation with other Ministers of the Government where appropriate. Reasons for an authorisation denial must be provided to an applicant in most circumstances. However, in certain, narrow circumstances, in order to protect the security and public order of the State, it may be necessary for full or partial information on denial reasons to be withheld.

Part 5, referring to internal reviews and appeals, consists of five Chapters. This Part balances the need to ensure fair process with the security requirements of the State, while also complying with recent case law. Chapter 1 provides for a process for internal review of an application that has been denied. Chapter 2 sets out provisions in relation to independent adjudicators that will hear a formal appeal of an application that has been denied. Sections 39 to 41, inclusive, provide for the appointment of persons as adjudicators, the conditions of appointment, revocation of appointment and the liability of adjudicators. Section 42 provides that rules may be prescribed in relation to appeals to be determined by an adjudicator. Chapter 3 provides for the details of a review of relevant decision in the Bill. It also details provisions regarding the handling of sensitive material and evidence in exceptional circumstances. As part of the decision-making process, highly sensitive information may be shared with the Minister. Section 43 sets out the process for the independent adjudicator in determining whether disclosure of information to an appellant would create a risk to the security or public order of the State. Finally, in Part 5, Chapter 4 provides for a further appeal to the High Court.

Part 6 relates to enforcement and deals with monitoring compliance of export controls. This Part provides for the appointment of authorised officers and their powers. It aims to ensure that there are clear and reasonable powers for an authorised officer to carry out their functions under the Act. Section 57 provides that an authorised officer may request relevant information or records, and enter any premises that has been or is being used in connection with a relevant activity. Section 58 sets out the powers of an authorised officer upon entry to a premises, and the conditions on the use of those powers. Section 61 provides that an authorised officer may give a compliance notice to a person suspected of contravening a provision of the Act, and lays out the rules of such notice. Sections 62 to 67, inclusive, provide further details on matters related to the courts, forfeiture and legal privilege.

Part 7 sets out offences and penalties for breaches of the Act. Offences are threaded throughout the Bill and are summarised, together with associated penalties, in this Part. The Bill establishes a range of penalties to provide for a proportionate response to breaches. This aims to be proportionate whether dealing with minor infringements, gross negligence or misconduct. In addition to potentially facing a compliance notice for infringements of the Act, exporters may be prosecuted for violations of national legal provisions in respect of dual-use and military trade controls. The Bill increases penalties set out in the 2008 Act to establish levels more consistent with other member states and should act as a deterrent to exporters.

Part 8, which relates to miscellaneous and transitional provisions, includes a framework for information sharing relevant to export control and transitional arrangements for authorisations.

The Control of Exports Bill 2023 passed Final Stage in the Dáil on Wednesday, 27 September. I commend the Bill to the Seanad. I hope this overview has been of assistance to Senators and look forward to their contributions. I am available at any stage afterwards to provide updates.