Pat Casey (Fianna Fail)
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For the information of Members, please note that the House, by agreeing to the motion to recommit, allows a Committee Stage-style discussion on amendments Nos. 106 to 115, inclusive, only. That is, Members may speak more than once on each amendment. In respect of any other amendments, I remind the House that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. On Report Stage, each non-Government amendment must be seconded.

Government amendment No. 1 arises out of committee proceedings. Amendments Nos. 1, 2 and 274 to 279, inclusive, are related. Amendment No. 1 is consequential on amendment No. 274. Amendment No. 2 is consequential on amendment No. 278 and 279. Amendment No. 277 is a logical alternative to amendment No. 276. Amendments Nos. 1, 2 and 274 to 279, inclusive, may be discussed together, by agreement. Is that agreed? Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Amendment No. 1 is a technical amendment to add the phrase "the Child Care Act 1991" to the Title to the Bill. It arises on foot of the proposed amendment No. 274.

Amendment No. 2 amends the Long Title to the Bill to reflect the amendment of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 and the Children First Act 2015 in amendments Nos. 278 and 279, respectively.

Amendment No. 274 inserts the presumption of minority for unaccompanied minors into the Child Care Act 1991. This amendment provides that subject to the age assessment process, where notification is made to the competent authority for the appointment of representatives for unaccompanied minors, an applicant for international protection may be an unaccompanied minor, that applicant shall be presumed to be a minor for the purposes of the Child Care Act 1991.

The purpose of amendment No. 275 is to clarify that the term "non-national" for the purposes of sections 8(1) and 8(2) of the Immigration Act 2003 includes applicants within the meaning of the Bill and the International Protection Act 2015. Currently, these sections explicitly refer to applicants within the meaning of the Refugee Act 1996 only. Section 8(1) applies to the sharing of information regarding non-nationals between certain public bodies, referred to as information holders for the purposes of this section. Section 8(2) gives the Minister for Social Protection a power to request information regarding non-nationals from information holders.

The purpose of amendment No. 276 is to amend section 3 of the Immigration Act 2004. This matter was discussed on Committee Stage and I agreed to examine it for Report Stage. The effect of the amendment would be to require an immigration officer performing functions under this Bill to produce his or her warrant of appointment, or a copy of it, if requested by a person affected. That amendment was proposed was proposed by Senators Ruane and Higgins. I have acceded to and included it.

Amendment No. 278 amends Schedule 1 of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012. Amendment No. 279 amends Schedules 1 and 2 of the Children First Act 2015.Together, amendments Nos. 278 and 279 provide for safeguarding and vetting where work or activity includes children or vulnerable people in accommodation centres and during the provision of representative and guardian services. The amendments also provide for accommodation centre managers, provisional representatives, representatives and international protection guardians to be mandated reporters.

Victor Boyhan (Independent)
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I welcome the Minister back to the House. I thank him and support all of these amendments. They are the Minister's amendments and clearly indicate that he listened. He said he would. He kept it concise. The amendments are primarily about children and vulnerable people, who were very much the principal concern of Senators on this side of the House who spoke and who are the ones who are extensively contributing to the whole debate. I want to acknowledge that. It is important. I will not go into great detail on it now because I will speak about it later, but we all received a letter from the Ombudsman for Children today expressing serious concerns about how asylum seeking children would bear the brunt of changes to the international protection legislation. It is covered in the Irish Examiner. The ombudsman raises many issues but I want to quote two lines from the article in the Irish Examiner, which was written by the ombudsman himself:

Complaints to my office show how children seeking asylum are already among the most vulnerable in Ireland and if the bill passes in its current form, it risks further undermining their rights.

Clearly, the ombudsman is not privy to the amendments the Minister has just tabled, or at least the rationale behind them, so that is important to say. The ombudsman goes on to say in the article:

It’s important to stress my concerns about the new system are not an endorsement of the way we currently treat children seeking asylum here [in Ireland]. I have repeatedly sounded the alarm on the inadequate care and protection afforded to these children.

In summary, I thank the Minister because I believe he has listened and has considered, to some extent, some of the arguments made in relation to these most vulnerable children and vulnerable people, whom he references also. I thank him and assure him of my support for his amendments.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Senator.

Victor Boyhan (Independent)
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I move amendment No. 3:

In page 19, between lines 2 and 3, to insert the following: “(4) (a) Within 12 months of the passing of this Act, the Minister shall produce a report on the treatment of refugees and asylum seekers.

(b) The report shall analyse the effects of this Act and include details as to whether immigrants are receiving appropriate legal counselling and are being treated humanely in detention in line with national law and the European Convention on Human Rights.”.

Aubrey McCarthy (Independent)
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I second the amendment.

Victor Boyhan (Independent)
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We have discussed this amendment. To my understanding, the Minister did not have a particular objection to any of it on the previous Stage. He did say it might not be necessary, but I would rather have the protection. I do not think it would do any harm to have this amendment included in the legislation. What this amendment seeks to do is to provide that:

(a) Within 12 months of the passing of this Act, the Minister shall produce a report on the treatment of refugees and asylum seekers.

(b) The report shall analyse the effects of this Act and include details as to whether immigrants are receiving appropriate legal counselling and are being treated humanely in detention in line with national law and the European Convention on Human Rights.

This always had to be about the dignity of the person, the dignity of people and about human rights. I very much value my opportunities in the Seanad to always seek to vindicate the rights of people, particularly children and vulnerable people. Whatever criticisms may be made of this legislation, it is important that we have a review. It is also important to note that there was a proposal agreed by the House today to guillotine this legislation if we do not conclude it before 6 p.m., so what does that tell us? It tells us there are a very substantial number of amendments the Minister himself has. I do not have a difficulty with many of them but the Minister has a lot of amendments today.

Pat Casey (Fianna Fail)
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I remind the Senator, who is here longer than me, that he can only speak on the amendment-----

Victor Boyhan (Independent)
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I am speaking on the amendment.

Pat Casey (Fianna Fail)
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-----and not in relation to the guillotine.

Victor Boyhan (Independent)
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Okay. We will not speak about the guillotine that has been agreed.

To revert to this amendment as well as the Minister's amendments, we will not have an opportunity to speak on many of the them. That presents a bit of a difficulty, but at least if we accept this amendment and the two parts to it, we would have a review in 12 months that would look at the concerns related to the passing of this legislation. Senator McDowell indicated Standing Orders, and the Minister will recall that we discussed this. That is also relevant. I do not think the amendment is unreasonable, but prudent and fair. The Minister is a more than prudent, reasonable and fair politician. I know this is very important legislation for him. What I am seeking to do is include a provision whereby within 12 months of passing this legislation, we will review it and see if there are concerns about human rights and so on. That is what we all want at the end of the day. We must respect the rights of all people, and that is what I am trying to achieve with this amendment.

Aubrey McCarthy (Independent)
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I thank the Minister for being here. I welcome the opportunity to speak in support of that amendment, which proposes that within 12 months of the passing of this Act, the Minister will produce a comprehensive report on the treatment of refugees and asylum seekers. It is a measured, reasonable and necessary addition to the legislation before us.

Looking at the amendment, the core of it seeks accountability from the Minister and recognises that the International Protection Bill will have significant consequences for some of the most vulnerable people who arrive on our shores. As the Minister knows, I am involved with the Lighthouse café on Pearse Street and we see a lot of international protection applicants, IPAs, arriving there - people who are fleeing conflict, persecution and unimaginable hardship. When we legislate in this House, we carry a moral responsibility for those people. A statutory requirement for a ministerial report ensures that we do not simply pass laws and then walk away from them. Instead, we commit to evaluating whether those laws are actually working in real time.

The amendment also rightly insists that the report analyses whether immigrants are receiving appropriate legal counselling. Access to legal advice is not a luxury in the international protection process; it should be a fundamental safeguard. Without it, applicants cannot meaningfully engage with the system. They cannot assert their rights or navigate complex legal procedures. Ensuring that legal supports are functioning effectively is essential to the integrity of the entire framework.

Equally important is the requirement to examine whether individuals in detention are being treated humanely and in accordance with both national law and the European Convention on Human Rights. Ireland has long prided itself with upholding human dignity and this amendment simply ensures that our practices match our principles. Transparency about detention conditions should be a democratic obligation.

We should be examining the impact of our healthcare on international protection applicants so that it protects them. I was recently contacted by Safety Net, which provides medical supports at our Lighthouse café. It raised a number of issues. It conducted a review and found that there were serious issues regarding the medical provision for international protection applicants.

By supporting this amendment, what we do is strengthen this Bill. We reinforce public confidence and affirm that Ireland's commitment to human rights is not theoretical but real. It ensures our international protection system remains fair and humane and is subject to ongoing scrutiny.

Patricia Stephenson (Social Democrats)
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I am pulling on what Senator McCarthy said about Ireland's commitment to human rights not being theoretical but put into practice. That is why I very much welcome Senator Boyhan's amendment. I have similar amendments later on, but in case we do not get to them, I am choosing to speak on some of them now because they are related.

We heard from the Tánaiste last year that:

The ECHR’s guarantees cannot be negotiated away, despite what some politicians might claim. Sometimes it is necessary to state the obvious: protecting fundamental rights protects everyone ...

It is a sentiment I really agree with. In December, however, we saw Ireland sign the joint statement to the conference of ministers of justice. The Minister himself signed the statement. That served to blur Ireland's position when it comes to the ECHR, and that is why I support Senator Boyhan's inclusion in this legislation of the ECHR and the adherence to international human rights law. It is incredibly important, particularly when we saw the signature in December, which seemed to indicate a very deeply worrying shift in Irish policy vis-à-vis international law and the ECHR. Human rights are the minimum standard that should be afforded to every person in the world regardless of what country or community they are born into. John Hume said that the differences we had between us were an accident of birth, and that is why it is so important that human rights, both for us in Ireland and for anyone who may be seeking international protection, are upheld.As part of that, the ECHR is a fundamental human rights framework forged out of the horror of the Second World War in Europe. Human rights are coming under attack globally as states weaken them, arguing they are restricting their ability to implement domestic policy and that sovereignty is being undermined because, externally and internationally, agreed human rights law is intent on hindering them. That is a worrying and insidious shift in language that we are seeing from the 27 member states that signed the joint declaration in December, of which Ireland was one.

To this point I ask why any state, whether Ireland or any other country, would want to implement domestic decisions that were contrary to the human rights framework, which is why I imagine we will be accepting Senator Boyhan's amendment. It is so clear that we believe in international law and human rights. We say that all the time. Why would we not include this as a matter of course? Why, in any policy area, whether treatment of asylum seekers or otherwise, would a country like Ireland want to go against international law and not include this amendment in such an important piece of international legislation? That is not a rhetorical question. I hope we get a response from the Minister on that.

Senator Boyhan's amendment puts the ECHR at the core of this new international protection legislation, which is the biggest overhaul in international protection we have seen since the early 2000s. It establishes Ireland as a country that does not just use the empty and often lazy rhetoric of international law. We can all say we believe in international law, we can all say we believe in human rights, but this amendment places Ireland as a country that practises what it preaches. I revert to Senator McCarthy's point about not just using theory but putting it into practice. I commend Senator Boyhan on this amendment.

We are all following the awful news in the Middle East. This issue is linked. We see attacks on international law and the large levels of forced displacement that will accompany that as well as the ongoing Russian war in Ukraine and the significant number of refugees in Europe that war has created. We will see significant displacement from the Middle East as a consequence of the breaches of international law there. That is why it is so important that things like the ECHR are built into our international protection legislation.

In response to these crises across the world, some of the Council of Europe countries, including Ireland, have taken a dangerous, populist and insidious path of turning our backs on the concept of the universality of human rights. Instead of turning towards the human rights system in times of crisis and safeguarding the values of human dignity and co-operation, we have seen countries in Europe, including Ireland, attempt to weaken human rights and the ECHR, as was done through the Chiinu process. The letter that was cosigned claimed the ECHR and the European Court of Human Rights were impacting domestic decisions on issues related to international protection and asylum seekers. As we know, if you have ever followed it, the data does not exist to back up that argument. I believe it is a significant stain on this Government's record when it comes to championing human rights and international law. It makes this Government's rhetoric of respecting international law out to be simply rhetoric. That is why I appeal to the Minister to include this amendment in the legislation and show us he practises what he preaches when it comes to human rights and international law.

Senator Boyhan's amendment and my amendments later on seek to address the utter shame and stain on the Government with regard to the letter signed in December. It was a populist move that was not required. There is no evidence in any of the traditional processes in Ireland or any of the judicial processes that have gone to the European Court of Human Rights that any withdrawal from Article 3 or Article 8 is necessary to implement domestic legislation. That is why having this included is so critical. Explicitly acknowledging and referencing the ECHR is fundamental to human rights protections within the international protection space. It will redress what I believe was a crucial mistake by this Government in December.

It is a tragic irony that one of the elements of the ECHR that our Government has expressed interest in altering is Article 3. We briefly talked about this last week. Ireland has brought two interstate cases against the British Government on the grounds of Article 3 protections. We saw one against the Tory Government's horrendous legacy Act, which was going to see survivors of the Troubles blocked from seeking crucial justice. There is also, of course, the torture of the hooded men case from the 1970s. The idea that Ireland is attempting to weaken protections under Article 3 when that is the article under which we have taken two interstate cases is actually nuts. It is through the looking glass stuff. It makes no sense. There is no logic behind it. For those who do not know, Article 3 deals with standards of torture and inhumane and degrading treatment. The letter cosigned by Ireland in December suggests that the ECHR's Article 3 on torture is actually too restrictive and limiting for domestic legislation. The Minister might tell us what parts of Article 3 on torture are too limiting for his domestic policies. Is there any inhumane and degrading treatment we should accept in Irish society to fit with his policy ambitions? Is it the squalid conditions in International Protection Accommodation Services, IPAS, centres that count as degrading under the ECHR that he might be trying to bypass? Is it the asylum seekers being forced to sleep in tents in winter conditions that he is worried could be classed as degrading treatment under Article 3 protections? Can we proportionately torture someone? Can we proportionately degrade someone? Is there proportionality around inhumane treatment? Exactly what part of the international protection system did this Government want less traditional oversight of when it came to the signature on a letter in December?

The fact is that Article 3 of the ECHR is an absolute right. It cannot be subject to any proportionality analysis under the ECHR. Simply put, torture is torture and degrading treatment is degrading treatment. It cannot be given a proportionality analysis. There is no balancing permitted between torture and national security interests, which I am sure we may hear some rhetoric on later.

I commend Senator Boyhan on tabling this amendment. It focuses on the idea of the universality of human rights and the idea that everyone is born equal. As I said before while citing John Hume, difference is just an accident of birth. Does the Minister think everyone is born equal or is there a hierarchy of equality and access to rights based on what country you were born in? If we were not born into a war-torn country and were not forced to flee we, have more rights than if we were born into a war-torn country and forced to flee, never mind that some of our traditional international partners like the US are now responsible for creating more uncertainty and displacement. When discussing Article 3, case law from the ECHR is clear that it is an unconditional right. European Court of Human Rights case law has established an incredibly high threshold for treatment to be considered inhumane and degrading. Therefore, I believe it is critical that this legislation explicitly reference the ECHR. That is why I commend Senator Boyhan on doing that. Any attempts to amend the threshold for torture and inhumane and degrading treatment is simply a race to the bottom. Through the political declaration, Ireland signalled to people in the human rights space that that was what it was doing. It signalled that we were interested in eroding the universality of human rights. It also signalled and represented a threat to the judicial independence of the ECHR. We should all be aghast that any such attempts would be made. That is why this amendment is about re-establishing our commitment to the universality of human rights when it comes to questions of international protection.

The 27 countries that signed the political declaration in December, including Ireland, are effectively saying in the face of the migration crisis that obligations in respect of inhumane and degrading treatment should be reduced. To be clear, this will not just reduce the human rights and right against torture of asylum seekers. It will reduce the human rights and right against torture and inhumane and degrading treatment of every single one of us - of every citizen. That is a terrifying thought. Senator Boyhan's amendment is about bringing us explicitly in line with the ECHR. This is not some flowery and soft amendment. It is crucial. We are seeing an existential threat to our human rights system, and we must, in times of crisis, be bolstering it. When social cohesion is being undermined, we must be bolstering our international human rights frameworks, not weakening them. During times of turbulence and polarisation, we need to be holding on to the legal frameworks that underpin ours and the Government's self-proclaimed values of human rights and dignity.

That is not to mind the fact that any weakening of the ECHR poses a significant risk to peace on this island, given that it is a core pillar of the Good Friday Agreement. We are so used to the British Government's complete disregard for the North of Ireland. That was clear during the Brexit negotiations and was completely clear from the Tories' legacy Act. I find it shocking that any Irish Government would sign a letter that sought to undermine the ECHR, a fundamental framework that underpins the Good Friday Agreement. This has real-life consequences for the North. The ECHR provides varied and diverse communities with a sense of trust that there is an external and neutral framework that provides the same human rights protections to anyone, regardless of what community they are from - orange, green or new communities to Ireland - and regardless of what part of Belfast or the wider North you are from. That is a worrying, perhaps unintended, consequence of the Minister's decision to sign that letter.

There is no data on the ECHR impacting deportations and international protection policy, but Senator Boyhan has asked for an analysis so that we can assess. This is why having a reporting amendment is so important. We can include this amendment in the legislation and will therefore be required to make an assessment of how the ECHR is impacting deportations and international protection policy, if it is, which I do not believe it is.A major hole in the Government's argument around the ECHR somehow blocking domestic international protection policy is that there is no policy data. I think even the Minister said the ECHR is not impacting in Ireland - it might be impacting a few other member states in the Council of Europe but we have no data showing it is impacting Ireland. When the Minister for justice was asked by my colleague, Deputy Gannon, about providing the number of deportations that were blocked as a consequence of the ECHR, no data was given because there were no examples. That is because it is not a real threat to domestic legislation. It is a populist move to provide very easy soundbites, I must say, in the incredibly fractious societal context we now see ourselves in.

It is important to say that one of the leading voices in this process is the British Government. It was one of the leaders in this declaration which Ireland chose to sign. Under its own domestic pressures from Reform, the Labour Government thinks that leaning right to court Reform voters is somehow going to keep it in power. I think we can all agree you cannot out-reform Reform. That is a message for all of us. You cannot out-right the far right. It is clear the Tories and Reform want to take the UK out of the ECHR altogether. In this race to the bottom, we seem to be engaging closest with our closest neighbours in Britain. Will that lead to Ireland eventually removing ourselves from the ECHR? Senator Boyhan's amendment provides assurances to us that the Minister is serious about keeping us in the ECHR, about the international frameworks that underpin our international protection system and our entire international law and human rights frameworks.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Senators Boyhan and McCarthy for tabling this amendment and for their contributions. I similarly thank Senator Stephenson for her contribution. I will reply to them in the order in which they made their contributions. In the amendment tabled by Senators Boyhan and McCarthy, one can see that what they are looking for is that within 12 months of the passing of the Act, I will produce a report on the treatment of refugees and asylum seekers and, "The report shall analyse the effects of this Act and include details as to whether immigrants [which I presume is a reference to refugees] are receiving appropriate legal counselling and are being treated humanely in detention in line with national law and the European Convention on Human Rights." That is a perfectly commendable amendment in the objectives it seeks to attain.

We had a brief discussion about this on the previous occasion when I was in the Seanad on Committee Stage. I indicated at that stage - I did not get an opportunity to elaborate on it - that I believe the Bill as it is drafted sufficiently covers the issues of concern to Senators Boyhan and McCarthy. I wish to specifically refer to Part 14 of the Bill, which establishes the office of chief inspector of asylum border procedures. I know colleagues will have already looked through that but it is important to point out there is a new statutory body, a chief inspector, which will be established for the purpose of doing what in many respects Senators Boyhan and McCarthy are seeking through their amendment. Section 252 which deals with the function of the chief inspector states that the chief inspector shall furnish to me "... annual recommendations in relation to the improvement of fundamental rights compliance at designated asylum border facilities". The legislation in the Bill at present is preferable to what the Senators propose in their amendment. Under their amendment, I am the one responsible for the report and the one required to ensure I produce a report. I do not think Members of this House or the Lower House would believe a report by me would be sufficiently independent. If I had in the legislation that I would be the person to do a report to determine whether human rights obligations are being complied with, Senators would say it would be far more preferable if that was done by an independent statutory entity. It is preferable that it is done by an independent statutory entity. That is why the provision in the legislation containing Part 14 about the chief inspector is so important.

It is also relevant to look at section 259. This deals specifically with the issue identified by Senators Boyhan and McCarthy. It refers to the annual report of the chief inspector. It requires that the chief inspector shall, not later than three months after the end of each year - not just the first year - submit an annual report on the performance of the chief inspector’s functions and other related matters and that any part of the report to be laid before each House of the Oireachtas that would prejudice security will be refused. It will ensure there is an annual report of the chief inspector that will be presented to me and will then be available for examination or questioning by the Oireachtas committee. On the amendment, it is preferable that there will be a report on a continuous basis rather than simply within 12 months of the passing of the Act. It is also preferable that the report will be done independently by a chief inspector as opposed to by me.

The objective is to ensure the treatment of international protection applicants or refugees is in compliance with Irish law and the European Convention on Human Rights. I am extremely satisfied that the legislation I am putting before the Houses is completely in compliance with the ECHR and any domestic responsibilities we have. When one looks at the legislation as a whole, one can see it is very much balanced. The rights for the international protection applicant are clearly set out. If an assessment was done of how many sections cover the rights of the applicants, there is a significant majority. There also have to be duties that are owed to the State to adequately process applications for asylum and ensure asylum applications are for those who are legitimately fleeing persecution and war. We have to have a process in place for that to be secured. I believe the legislation balances that very appropriately.

Senator Stephenson also raised the issue of compliance with the ECHR. I assure her it is unquestionably compliant with it. She identified the signature by Ireland - by me - on 10 December at the Council of Europe in respect of a proposal for a political declaration put forward by Denmark and ultimately supported by 27 member states of the Council of Europe. To suggest that this is in some respect some partisan or niche interest group within the Council of Europe is not correct. The majority of member states were in favour of it. Türkiye was against it and I think Azerbaijan was against it. A significant number of our colleagues not just within the Council of Europe but also in the European Union were in favour of it. It sought to do what people are entitled to do as members of the Council of Europe which is to seek a political declaration. It was sought in respect of a variety of issues but the issue Senator Stephenson highlighted is in respect of Article 3 of the Convention. As she correctly pointed out, Article 3 is the provision that deals with torture and inhumane and degrading treatment. As she noted, Ireland brought a case in respect of torture and inhumane and degrading treatment in the 1970s. I thought the other interstate case was more to do with Article 2 to ensure that rights to an inquiry in respect of somebody being killed are vindicated. In the early 1970s a challenge was brought against the treatment by the British Government of persons who had been interned in Northern Ireland and their treatment while they were in custody. This gave rise to cases that were subsequently referred to as "the hooded men" cases. Ireland claimed that the five men had been sensorially deprived - they had to stand up, their arms were against a wall and noise was constantly played - all the characteristics of what we would associate with torture. Ireland took an interstate case to the European Court of Human Rights claiming torture. We lost on torture but won on inhumane and degrading treatment. I would have thought most people, when they look at Article 3, whether it is about torture or inhumane and degrading treatment, that is the type of treatment they would consider a violation of Article 3. The reason Denmark and 26 other member states put forward a request for the Council of Europe to bring in a political declaration in respect of Article 3 is that, since then, the European court has interpreted Article 3 in a very broad manner, to use that as objective language.For instance, there have been a number of cases of the European Court of Human Rights, such as Paposhvili v.Belgium and M.S.S. v.Belgium and Greece, where countries that were members of the Council of Europe found it extremely difficult to remove from their jurisdiction persons who had come into their countries, had been convicted of serious criminal offences and who they then wanted to deport from their countries. In the cases of Paposhvili and M.S.S., they were told by the court that there were circumstances where people could not be moved, for instance, if the medical treatment they were going to receive in the country to which they were going to be deported was less than the medical treatment they were receiving in the country that wanted to deport them, or that the other accommodation might not have been of the same standard. Senator Stephenson may believe that is an example of inhumane and degrading treatment. I have my doubts in respect of it. I certainly think the political elected representatives of the Council of Europe are entitled to put forward a political declaration. As the court is a living court, it takes into account political declarations when it comes to its interpretation of articles within the convention. Work has been ongoing in respect of that and there will be general agreement on a political declaration later this year. It is important to note that even though the number of cases may be small, the impact of judicial authorities and jurisprudence is not in respect of the number of them but in respect of the authority that is derived from them. The cases that I have identified, and other cases that I cannot recall the names of at present, have very much expanded the definition of Article 3 of the European convention. That was one of the reasons that countries in Strasbourg, including Ireland, decided to seek a political declaration in respect of the matter.

The final thing I wanted to identify and respond to Senator Stephenson on was that there was a reference to the UK wanting to get out of the ECHR. My experience from my engagement with the UK Government is that it is desperately keen to stay within the European convention for a variety of reasons, not least of which is the importance the convention has to ensuring that the terms of the Good Friday Agreement continue to operate effectively. That was the clear communication from Deputy Prime Minister Lammy, whom I met out in Strasbourg at the time on 9 and 10 December. It was a very significant development that the UK asked Ireland to do so. Other countries asked other countries to do so as well. There was a general coming together of countries and Ireland, of its own accord, decided that we would sign up to that letter. I believe it was the correct thing to do when we consider how the definition of Article 3 has in more recent times been interpreted by the European court. For those reasons, I do not think it is necessary to accept the amendment from the Senators.

Victor Boyhan (Independent)
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I listened attentively to the Minister's response. I take from it that he does not, in principle, have a difficulty with the objective. He has clearly articulated and identified our objective, which is great, so we are not losing anything in translation there. The Minister will be aware that I asked for a report "Within 12 months". I did not say "every 12 months". Given the nature and the concerns about the International Protection Bill 2026, Senator McCarthy and I believe we should be cautious and that we should have some sort of accountability. The Minister stood up and asked if he was meant to be held responsible. Yes, the Minister is to be held responsible. There is the expectation that the Minister will be the advocate and the guardian of the importance of international law and the European Convention on Human Rights. It would come naturally to him anyway. I have no doubt about that and that is not in question here. It was the intention that the Minister would do it once within 12 months because there is a lot of uncertainty about how this legislation will be rolled out. There are concerns.

We know the international situation. We may have many people seeking to come to our shores in the next few weeks and months, certainly in the next year. There are huge challenges to the world order at the moment. No doubt all of us here are conscious of that and the challenges it will present. That is another day's work but it is clearly in our minds. Along with Senator McCarthy, I was proposing that, within 12 months, the Minister with responsibility, who is leading this legislation and has brought in all these amendments on which we will possibly not even get to speak in the Upper House, would "produce a report". That is important, particularly in light of the constraints on us as parliamentarians in this House today as we consider the Government's legislation that the Minister is navigating through the Houses. Therefore, it was always our intention that the Minister, Deputy O'Callaghan, or whoever the Minister is on the given day in 12 months' time, would initiate, or his office would initiate, a report on the treatment of refugees and asylum seekers. I am not saying he would personally conduct it, but he initiates many things every day. That is a very simple, fair and reasonable request, I would have thought. The report would also analyse the effects. It is important that we analyse the effects of this legislation on the lives of everybody, but particularly children and vulnerable people. There is a vulnerability about most people in those circumstances.

We would include in the Bill the provision that they would receive proper legal counselling - surely the Minister does not have a problem with that - and be treated humanely in detention. It is not always the case that people are treated humanely in detention, including in our prisons. That is a debate for another day, but let us not be fooling ourselves that people who are detained, retained, find themselves incarcerated or for various reasons are ordered into some sort of controlled environment or situation not of their making or choice do not get some forms of abuse. That is the reality of it. History tells us that. We all know it. Therefore, that is another concern.

On the European Convention on Human Rights, that is what we are all about. We are a republic. We have a proud tradition of vindicating the rights of people, or at least seeking to vindicate the rights of people, be they citizens or not.

It was clearly our intention that the Minister would take responsibility and initiate through his officials and the resources available to him some sort of a report on and analysis of the impact of this legislation in which he has every confidence and, therefore, is surely confident will be right, appropriate and proper. I see him as the guardian of this legislation over the next 12 months. That is the intention and I put that to the House.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Senator for his contribution. It is important to point out that receiving appropriate legal counselling is a statutory requirement under the legislation. I have to provide that. I have to make sure that international protection applicants "are being treated humanely in detention in line with national law and the European Convention on Human Rights." The obligations that are set out in terms of the reception conditions and legal counselling are very detailed within the Bill. It sets out very considerable obligations on me and on the State in terms of providing accommodation to individuals who come seeking international protection and of providing legal counselling for the first stage of their applications. Obviously, on the second and appeal stages, I have to provide legal representation, which is even more.

All I would say without repeating myself is that once the legislation is commenced, I have no doubt that Senators at the committee or when I am here in this Chamber will be raising issues concerning the operation of the legislation with me. Certainly, I will be questioned about it before the Oireachtas justice committee. I will be questioned, no doubt, in respect of the reports that are going to be produced by the chief inspector on an annual basis, and the media will be very vigorously questioning me as well. That is the appropriate way to deal with it, through those statutory mechanisms and the standard mechanisms available in a free society such as Ireland, as opposed to just putting in the provision that I will produce a report within 12 months.

I thank the Senators for their amendment.I have to say, very politely and respectfully, that I cannot accept the amendment.

Pat Casey (Fianna Fail)
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Is the amendment being pressed?

Victor Boyhan (Independent)
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Yes.

Mark Daly (Fianna Fail)
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As one Senator inadvertently voted twice, the result of the vote has been amended.

Rónán Mullen (Independent)
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Is there a name and shame policy?

Mark Daly (Fianna Fail)
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Ciúnas, a chara.

Mark Daly (Fianna Fail)
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Amendments Nos. 4 and 272 are related and may be discussed together by agreement. Is that agreed? Agreed.

Michael McDowell (Independent)
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I move amendment No. 4:

In page 19, between lines 2 and 3, to insert the following:

“(4) The Minister shall not later than 12 months following the enactment of this Act provide a report which shall review the functioning of this Act and which shall be laid before the Houses of the Oireachtas in accordance with standing orders of the Dáil and Seanad.”.

This amendment is in my name and the names of Senators Boyhan and Craughwell.

Gerard Craughwell (Independent)
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I formally second the amendment.

Michael McDowell (Independent)
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I want to say two things by way of preliminary observation. We are on Report Stage of a Bill which runs to 299 sections at present. The debate on the Bill in Dáil Éireann was guillotined. It was then brought to this House by the Government in circumstances where it requires further extensive amendment.

Members of this House might be interested to know that the guillotine that was used on Committee Stage in this House had the effect of making a further 188 amendments to the Bill, some of them involving new sections and some involving small changes. On Thursday last, the Committee Stage debate on the Bill was guillotined. On Friday, the Bills Office commenced the noble task of putting together an administrative reprint of this lengthy Bill. That became available later on Friday, which meant that Members of this House were in a position to table Report Stage amendments in an orderly fashion.We would not have been able to do so at all if we did not know the layout of the Bill as amended by the Government guillotine.

The next thing that happened is that the Government fixed today for Report Stage, and the consequence of that was that any amendments Members wanted to table on Report Stage had to be before the Bills Office by 11 a.m. on Monday morning. We had from Friday at lunchtime, when we received this administrative reprint, to Monday at 11 a.m. to table amendments for Report Stage. When all the amendments were put out, the Bills Office then had to make head or tail of who was seeking to further amend this Bill on Report Stage. It transpires that the Government, not satisfied with the 188 amendments it made last week, is tendering a further 123 amendments, by my count, today. That is extraordinary. It claims this is needed to meet a deadline. It is not, by the way; there would be no effect if this was only enacted in July. Nobody in Europe would even blink if that happened. We are supposed to do it by a date in June.

In any event, what has happened is that the Government has fixed the Order of Business of this House today, again with the guillotine, which says that if its 123 amendments are not reached, they are deemed to have been considered and passed by this House. Let us remember that this is a Bill that was guillotined through Dáil Éireann and will have 300 amendments made in the passage of one week through this House. None of our amendments to a Bill from the Dáil take effect, as the Bills Office reminds us, unless they are accepted by Dáil Éireann. When it comes back to Dáil Éireann, and with no disrespect to the Members of that Chamber, it will look as if these 300 amendments received some consideration in this House. They will not have received it. I remember so many times when Ministers said the guillotine was not going to be used, or used only sparingly and in circumstances of emergency. We now find ourselves in a grotesque situation where 300 Government amendments, the vast majority of which will not have been considered by this House, will have been passed and will arrive back in Dáil Éireann and the Bill will probably be guillotined there as well, without proper consideration. That is a contemptuous way to deal with any Legislature. On a matter of the importance of this Bill, which is incorporating into Irish law the ill-named migration pact of the European Union, it is a sad reflection that that is where we are.

As to the exact wording of the Report Stage amendment I have moved, I bring to the House's attention that Standing Order No. 179 provides as follows:

Twelve months following the enactment of a Bill, save in the case of the Finance Bill and the Appropriation Bill, the member of the Government or Minister of State who is officially responsible for implementation of the Act shall provide a report which shall review the functioning of the Act and which shall be laid in the Parliamentary Library.

That is not just this Chamber; that provision is mirrored in the Standing Orders of Dáil Éireann. Seanad Standing Order No. 179 mirrors exactly Standing Order No. 204 of the Dáil, which provides:

Twelve months following the enactment of a Bill, save in the case of the Finance Bill and the Appropriation Bill, the member of the Government or Minister of State who is officially responsible for implementation of the Act shall provide a report which shall review the functioning of the Act and which shall be laid in the Parliamentary Library.

If a Minister of the Government tenders any Bill to the Houses of the Oireachtas, unless it is the Finance Bill or the Appropriation Bill, he or she is obliged by the rules of the Oireachtas, adopted separately by each House, to report in one year on the implementation of the Act. In my experience, this is never done. We have, on occasion, included provisions in an Act that it should be reviewed after three years or whatever, but we have never insisted as a matter of basic discipline laid down by the two Houses of the Oireachtas that we get a report in respect of every Bill, except either of those two finance measures, saying how it was implemented and that it has to be done within 12 months of the date of its enactment.

Once this Bill goes through the second guillotine - it must be the most beheaded Bill of all time - gets to the Áras an Uachtarán and is signed into law, which I presume it will be, unless it goes to the Supreme Court in the next number of weeks, the clock will ticking on the Department of justice and every Department to get ready and diary in that in one year's time it will report to both Seanad Éireann and Dáil Éireann as to how the Bill has been implemented. That is the law of the land that is laid down in the procedures of the Oireachtas. It is as binding on a Minister or Department as any other procedure in this House.

It is strange that that is practically unknown as a provision. If it is unknown in this House that that provision exists - when I discovered it, I was a little bit surprised, I have to say – it is no surprise at all that it is ignored all the time by Government. We frequently see amendments being put down asking for such reports on implementation to be tabled and the Government, in each case, defeating such amendments when in fact it is a basic rule and a basic part of the discipline of our Parliament that that reporting process is complied with. What I want to see is that if this Bill becomes law in the next few weeks, one way or another, we will be told in a year's time exactly how it has worked. Was there a detention centre established? How many unaccompanied minors had been affected by it? How many people had been subject to the border procedure during that year and the like? We in this House are not entitled to put down parliamentary questions like Members of Dáil Éireann are, requiring that kind of information as of right, but we are entitled, by the rules of both Houses, to that information to see precisely what effect the measures that have been enacted have had in the year following their enactment.I will say something. This is not just for the Department of justice today. It is for every Department, member of the Government and Minister of State who has functions under legislation. They must account to the Houses one year after they get the law changed for how it is operating as a matter of obligation to the Houses. That is the law of our land and those are the procedures laid down in the Standing Orders of both Houses. Some people may say that is not in statute form but is only in the Standing Orders of the Houses. To that I say that if one tenders a Bill as a member of Government to either House and gets it passed by both Houses, one is doing so on the solemn undertaking and understanding that, one year after its exactment, one will present a report to be laid before each House of the Oireachtas in the parliamentary library, as per Standing Orders, stating precisely how the legislation in question has been implemented. It is not a little frill on top of legislation or an obligation that can be dismissed or ignored, as it has been routinely in the past. Rather, it is an obligation that is a solemn duty on the part of the Minister. It does not apply solely to this Bill because it has controversial provisions. It applies to everything.

I will give the Minister an example. We in this House legislated to make it a criminal offence to pay for sex. We changed the law in order to do that. Whether that was wise, I do not know, but it was done. There was a review process in the legislation, but everyone seems to have ignored the fact that, under that legislation, we were entitled to a report under our own rules of procedure. It is in that spirit that I am tendering this amendment. Does the Government accept it is bound by those Standing Orders or does it not? It is habitually not complying with them. In fact, it is ignoring the obligations under those Standing Orders to either House habitually.

Other Members of the House have put down amendments seeking particular reports on the operation of the Bill in particular regards. This and the other amendment in the group have that effect. The amendment in my name, seconded by Senator Craughwell, is there to insist on our entitlements, namely, that there will be a report one year after the Bill becomes law, if it does, and that the House will be aware of all of the relevant aspects of its operation and will be informed as to the result of its enactment, even if subject to the guillotine.

Last week, 188 amendments were carried, mainly by guillotine. Some 122 Government amendments will be carried this afternoon by the guillotine process. The vast majority of amendments will never have been considered by the House. If a guillotine is imposed in Dáil Éireann, they will never be considered there at all. The courts and President, in considering an Article 26 reference, will assume that this is the will of the Oireachtas. How can the Oireachtas will things to be the law if they are rushed through in the manner I have described and the great majority of Members of both Houses of the Oireachtas have never had the opportunity to even ask a question about any of the amendments that the Government proposes to make to its own Bill? I am only allowed to speak once on the amendment, but I can reply at the end of the debate.

I am serious about this. There has to be a new approach to accountability to the Houses. It is in the Standing Orders of both Houses. This is not the Seanad becoming uppity; it is part of the legislative process. We, as Members of the Oireachtas, must insist on compliance with our own rules, especially when we are confronted with a multiple guillotining in both Houses that is giving rise to the vast majority of 300 amendments never being considered by either House.

Sharon Keogan (Independent)
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I support the amendment, which simply requires that, within 12 months of the enactment, the Minister lays before both Houses a report stating how the Act has functioned. It is reasonable and entirely in keeping with the oversight responsibilities of this House. On Committee Stage, many of us highlighted concerns about the practical operations of the legislation once it left this Chamber and entered the real world. We spoke at length about capacity, transparency and the risk of legislating without clear mechanisms to measure how the core concepts of the Bill would function in practice. I made the point then, and I repeat it now, that no system can operate on abstractions. If we do not monitor and report on its effectiveness, then we are legislating in a vacuum.

I believe the amendment is a natural continuation of those Committee Stage arguments. It builds on a structured requirement for democratic accountability. It ensures that the Minister returns to the House with evidence and a factual assessment of how the Act has performed. It is vital that we in the House and the public at large get a full look into the realities of what is happening at our Border and in our immigration system. For example, I learned that on one occasion during the Ukrainian crisis, 59 unaccompanied minors were brought into Ireland and were assigned at the Border to the impromptu guardianship of adults who were in their group. I was recently informed by the Minister's Department that we did not systematically store or analyse data on no-shows to IPA interviews. These are just two examples of the mountain of work that our asylum and migration systems have to do in terms of gathering, monitoring and reporting data.

This is not an obstructionist measure. It does not slow implementation or bind the hands of the Minister beyond asking for transparency. It honours the principle we discussed repeatedly on Committee Stage, namely, that good legislation requires ongoing scrutiny and the Oireachtas must retain the ability to correct course when necessary. If the Government believes the Bill is robust, then it should welcome the opportunity to demonstrate that through a formal review. If challenges emerge, whether administrative, operational or resource based, then the report gives the Department the space to explain them and gives the House the opportunity to respond. For these reasons, I strongly support the amendment from my colleagues and encourage others to do likewise.

Mark Daly (Fianna Fail)
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Before I call Senator Craughwell, I welcome the guests of Senator Laura Harmon from Cork Boat Club, who are here today for their first time in Leinster House. You are most welcome to Seanad Éireann. I also welcome Darragh Walker to the Gallery, who is carrying out work experience organised by Councillor Catherine Fitzgerald.

Gerard Craughwell (Independent)
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I will not delay on this. This is the first time I have spoken on the Bill. I become deeply concerned when I see any Bill passing through the House with a guillotine associated with it. The point made by my colleague, Senator McDowell, is valid. When the Bill is finally passed, it will be seen as two things. First, it will be the Minister's Bill. Second, it will not have been passed by the will of the Members of the Oireachtas, many of whom will never have had an opportunity to engage in any way on the Bill.This is bad legislation. It is not the way to do business. I fully understand the Minister and I applaud him for the work he is doing in this area but, given that we have 200 amendments, it is wrong in every sense of the word to guillotine the Bill this evening. Members of this House will make it widely known that they are not a party to the Bill. I think that is bad legislation overall. Nothing excuses us not doing the work of Parliament and teasing out every aspect. The Minister was very good the last time we debated the Bill on judicial appointments. This Bill needs more time and I ask him to consider that.

Laura Harmon (Labour)
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I also welcome my guests in the Gallery from the Cork Boat Club, Blackrock, Cork - Paul and Councillor Ciara O'Connor who are here as well.

I agree with colleagues about the need to provide reporting in terms of this legislation. As part of this, I want to speak to amendment No. 272 but before I do that, I want to say that the use of the guillotine so frequently in the Dáil and Seanad is not just disappointing, it is quite alarming. We are here for a reason. As Senator Boyhan often says, we are a revising Chamber. This is part of what the Seanad does.

The Oireachtas in Leinster House is a bicameral Legislature. We have two Chambers for a reason. We would have loved to have had more time to debate all these amendments. It is really unfortunate given that there are over 300 amendments. My name is on 45 of those amendments. I am really dismayed that we may not get to speak to all of them. The heads of the Bill are clear. The Title of the Bill has the word "protection" in it. It is the International Protection Bill.

That leads me to amendment No. 272, which relates to the rights of the child. This amendment calls for a report on the implementation of the Act. It asks that within 12 months of the passing of the Act, and every two years afterwards, the Minister would produce a report on the implementation of the Act regarding the compliance and adherence to the UN Convention on the Rights of the Child. The report should analyse the effects of this Act and include details as to whether the treatment of asylum seekers, international protection applicants and other immigrants is compliant with the UN Convention on the Rights of the Child. This report should be laid before both Houses of the Oireachtas.

When we say the Minister should produce a report, of course we mean the Minister, in conjunction with the resources that he has in his office, and the many experts here in Ireland who monitor human rights, and the rights of children in Ireland and internationally. I saw the Ombudsman for Children, Niall Muldoon, stated in the Irish Examiner today that asylum seekers who are children are going to be hit hardest by this legislation. His comments about immigration are extremely worrying. This is one of the biggest changes to immigration law in Ireland in our recent history. It is extensive broad-ranging legislation and we believe there has to be proper examination of it. The Bill has been rushed through. It should not have been guillotined in the first place.

We did bring other sensible amendments as well. In amendment No. 21 on Committee Stage, which we debated last week, we sought to define the best interests of the child within the legislation because that is not defined. We proposed that part of the broad definition should take into account the child's age and maturity, their identity, gender, sexual orientation, nationality, religion, safety and welfare and development needs, preservation of family relationships, and any particular vulnerabilities that a child might have in any other circumstances pertaining to the child concerned. The Minister responded that would have been too limiting, although they were very broad elements that we sought to include in the legislation. Now we are asking him to please provide a report as to how the legislation would impact on the rights of the child. It is reasonable and sensible to ask that within 12 months, we would seek to review the legislation. There are clear concerns within this Chamber and from the public. People have been emailing us from different organisations who are concerned about child welfare and the detention of children and how that might affect them. We need to safeguard against this. If the legislation is effective and if it safeguards the rights of children then this is not something we should be afraid of providing. It is sensible and certainly is not an onerous thing to do. I urge the Minister to support this amendment.

Nessa Cosgrove (Labour)
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I also wish to speak to this amendment No. 272. As a member of the children's committee, it is very stark to get such concern raised by the Ombudsman for Children, Dr. Niall Muldoon. He has been before the children's committee on a number of occasions, including with staff from his office. We know from reports already that children in asylum seeking and direct provision are probably among the most vulnerable children in the State. They are raising the alarm and saying the Bill has been rushed through the Dáil and that this is our last opportunity in the Seanad to bring this forward before it is guillotined. This office was set up as an independent office to promote and protect the rights of children and young people under 18. That has to count for something.

No one disagrees with the notion that we would have an effective asylum system. No one disputes that. What about the White Paper on ending direct provision? What we were aiming to do was to get rid of direct provision. Unfortunately, given that this Bill is being rushed in, there is a chance that we are going to see more restrictions being made and even more children being at risk of being detained against their will. It is highly concerning that the State is already not able to manage how it deals with unaccompanied minors who present. How are we going to deal with them if they have additional vulnerabilities? We do not know.

We have signed up to the UN Convention on the Rights of the Child and the Bill needs to be debated further. We do not want to go back in our history. There already have been reports. The Ombudsman for Children commissioned a report on direct provision. It spoke about the lack of space and privacy already for children in direct provision and the fact that they did not feel safe here in the country to which they came to asylum and safety. The Ombudsman for Children produced a report stating that this was crisis driven and is threatening the safety and well-being of children. To me, the proposed changes that focus on rapid returns and a new border procedure will mean that children, in particular unaccompanied minors, could be more vulnerable than ever to having their rights breached. I hope the Minister will consider accepting this amendment.

Alice-Mary Higgins (Independent)
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I stand in support of both of these amendments. It is a very clear point in terms of democracy when you have vast areas of what is meant to be our collective decision-making process in the Parliament, including a variety of significant proposals with huge impacts on people's lives, that effectively are being pushed through at the last minute and that are not being allowed a guarantee of debate or proper time for discussion. We have had previous Bills on which the Minister has come in almost a dozen times but yet on this Bill, where again the timeline is June and July not April, it seems that the curtailing of debate is designed to avoid proper scrutiny. A huge number of proposals came through that were not subjected to pre-legislative scrutiny and were not discussed in the Dáil and that have then come through on Committee Stage - we had 70 pages of amendments - and now a large number of amendments have been brought through again on Report Stage. It is not just poor practice; it is abnormal practice. It is not normal, expected or proper parliamentary practice. As others have said, we are bicameral.The Seanad has a mandate and the public have a right, which is crucial. It is not just our mandate and our right to scrutinise it. It is our obligation. The public have an entitlement to have legislation that is going to be impactful scrutinised and properly laid out. As I said before, the decision to guillotine this legislation raises huge questions in terms of how the powers in it may be manifested and how they will be used. We cannot give the benefit of the doubt in respect of the many ambiguous powers that are within this legislation, if the legislation itself is not even being subjected to proper scrutiny and debate. I proposed this morning that this would be adjourned rather than concluded. I believe it was a wrong decision to force through the guillotine in this case.

I also want to speak specifically in support of amendment No. 272, which looks for a report in relation to the legislation and in particular its adherence to the UN Convention on the Rights of the Child. That convention is a fundamental document but it is not just about the UN convention. We also made a collective decision through a referendum not that long ago that the rights of the child should be enshrined in the Irish Constitution. The rights of the child are not just something at the UN level; the State has put the question and been given the message from the entire public of Ireland that the rights of the child are something that should be respected in all points. That is why there is a particular onus on the Government to listen. The ombudsman is the person who is entrusted with reflecting those issues of the rights of the child, which again are not just there in the background but are fundamentally core to Ireland's Constitution and were chosen as a matter of such urgency as to be added to our Constitution by the Irish public. The Ombudsman for Children tells us that they are concerned, if the legislation is passed in its current form, that children seeking asylum in Ireland could be more vulnerable than ever before to breaches of their rights.

I am going to highlight just one of the issues in relation to this. It is an issue which the UN Committee on the Rights of the Child has also highlighted. Age assessments should only be utilised as a measure of last resort when there are serious substantiated doubts about a child's age. That is not the threshold in the Bill. Rather, an age assessment can simply be triggered by any matter that gives rise to a doubt as to the age of an applicant, by any civil servant, garda, immigration officer or even persons contracted under the Act to deliver its purposes or functions. Medical age assessment is a significantly wrong approach and has been found to be so by the UN Committee on Rights of the Child and marked as such by human rights and children's rights bodies. We are very concerned. We will have amendments which we may come to later. The approach to age assessment that is being set out in this Bill is extremely dangerous, damaging and deeply inappropriate. We will later press a specific amendment. That is the kind of issue that could be highlighted in this report, along with the issues we have highlighted otherwise, such as the idea that there would be individuals with responsibility for up to 30 unaccompanied minors, and that this would be the low level of support as children seek to navigate the system.

I want to go back to the ombudsperson because it is really important. They are not just talking about a few inadvertent effects, what if a guardian is not good enough or what if the numbers are wrong, or even the specific issue I mentioned in respect of age assessment. The ombudsman is extremely clear. The fact of this being guillotined in the Seanad was mentioned in the letter as not being in the best interests of the child. Literally, it is not just bad for democracy but it is not in the best interests of the child when legislation which affects children is being guillotined. That in itself was a breach in terms of the responsibility to the best interests of the child. Crucially, they name the fact that this Bill will for the first time in Ireland make it legally possible to detain children who are seeking asylum. This is an abhorrent violation of their rights which can never be considered to be in their best interests. The ombudsman also goes forward to the fact of the system itself, that it a second-tier system. The asylum border procedure has this legal fiction which allows states to expand powers of detention and effectively act as if those who arrived in Ireland are in some limbo, not outside the law, not yet in the asylum-seeking system but in this pre-system, this system that is somehow outside of what your rights should be in terms of seeking asylum. That idea of a legal limbo that you place children into before acknowledging the physical fact that they are in your country and seeking safety - that very premise is in itself a deeply concerning step away from the rights of the child, and not just the rights of the child but of real children, who are real, who will be in Ireland, who are physically within our country and whom we have responsibility for. We are going to be placing them in a legal limbo where they may or may not be getting adequate care, may be subjected to detention and may experience fear and trauma that could be avoided. Those matters are identified by the person responsible for telling the State when it is making a mistake. I urge the Minister to listen to that and accept, at a minimum, an amendment that allows him to review how those mistakes may pan out over the period ahead.

Eileen Flynn (Independent)
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This whole Bill is a shame, to be honest. How could you say you are Minister for justice and believe in justice when we are supporting children to live in these horrible conditions? Direct provision was set up 23 years ago as a temporary solution for refugees. Who do we think we are, putting one set of children above another? I refer to how we are treating children who are already fleeing war, who have already been through so much trauma. We are not listening to the Ombudsman for Children. We might as well get rid of him because what he is saying was not taken on board in here, not by the Minister anyway and not by the Department of justice. An absolute sin. I do not know if the Minister has ever been into a direct provision centre-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Yes.

Eileen Flynn (Independent)
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-----or if he has ever seen the living conditions of the children. We have got thousands of children in this country living in hotels. That is a story for another day - children who are homeless. We have children living in direct provision who have to be in at a certain time, they get certain foods to eat and they have little or no choice in their dinners. They cannot stay back for after-school activities because they have to be in what I would say is the wee prison for a certain time. We cannot stand by this. In 30 years' time the Minister will look back. This is a scandal, an absolute scandal. We cannot come in here with our recommendations or our solutions. Too many times we are told the Opposition has no solutions. We are after putting in hundreds of amendments to this Bill to make it somewhat bearable for these children and for the adults living in direct provision. This is absolutely scandalous and I hope to God that, 30 years down the line, the Minister will look back in horrible regret. You are part of this, Minister, and that is something you need to think about. I am sorry. If it was any other Minister, it would be the same. It is the Department of justice----

Mark Daly (Fianna Fail)
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Sorry Senator, I am allowing latitude in relation to this because it is in relation to reporting, but we should refer to the amendments and to the Bill, not to the Minister.

Eileen Flynn (Independent)
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It is to the Bill. It is to the rights of the child and to justice. These children have no justice, no rights. If I am the only Senator in here who is annoyed because of that, shame on everybody else.

Mark Daly (Fianna Fail)
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Sorry, Senator. All I am trying to do is explain. I am allowing latitude because I realise that we will not get to most of the amendments. It is in relation to the reporting on the Bill itself but I am asking the Senator to try to stick within that.

Eileen Flynn (Independent)
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I am sorry, I was not in any way being disrespectful. It very much relates to amendment No. 172.

Maria McCormack (Sinn Fein)
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I commend Senators McDowell and Boyhan on tabling the amendment. It is so important. We have to acknowledge that the debate on the Bill is being guillotined. We can see the changes that have come in and the number of amendments that have been tabled and that we will not have a chance to go through. It is really worrying that this legislation needs to be rushed through at such a pace. We know the amount of litigation that will result from this. We think about humane detention standards in this regard. All the Senators are asking for in the amendment is a report. I know what the Minister stated, namely that the chief inspector will also supply a report in any event. However, it is also about fairness.

We are accepting so much of this, even though we have clearly put our concerns on record. I know we will not get to some of the amendments on community consultation, which is something I feel strongly about. We should accept this amendment. We could have a smoother process if we engaged with people properly on this. We would not have had the problems in Ireland that we have had if we had engaged properly with the communities in the first place, and if we had transparency in communities, proper liaison and made sure that in the areas where IPAS centres were going in we had proper consultation and proper services to facilitate them. We have put IPAS centres in locations based on profit more than suitability. If we look at it, we did not have doctors or school places. All of these problems have led to the dysfunctionality of the IPAS centres in Ireland and to the entire system not working.

It creates greater confusion when we see the debate being guillotined and he Bill being pushed through in order that it can be returned to the Dáil where the debate will be guillotined again. All the amendment seeks is a report after 12 months. I respect that I am being allowed to speak about our amendment, which we will not get to because of the guillotine. I want the Minister to go back to the point on the report after 12 months. What is the reason for refusing to give us a report on the impacts this is having?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Senators who tabled the amendments and all those who made contributions. I take my responsibility as Minister before both Houses extremely seriously. The way legislation is made in Ireland is that overwhelmingly it is advanced by Ministers who come before the Houses and listen to debates, and it is this House and the Dáil who make the laws. I have a significant responsibility in respect of it since I have the benefit of a Department and a Government majority behind me.

Notwithstanding these advantages, I take my responsibilities extremely seriously. Senators are aware that I have been here quite frequently in respect of legislation. I like to debate legislation. I like to spend time in this House in particular and in the Dáil. The latter is an important part of the legislative process. I get ideas from listening to people in this House. I accept ideas and adopt them when I believe they are good. The process we have in place shows itself to work effectively. Whether it is the defamation Bill, which was completed, and I was here for many days on Committee and Report Stages, or whether it is other legislation that has gone to Committee Stage at the justice committee, I recognise the importance of fully scrutinising legislation. That is why in the Bills that have become law to date, I have gone through the process very methodically. In the context of those which have not yet become law and on which the debate has not been guillotined, I have done the same in order to ensure that I hear a full and considered debate.

The International Protection Bill is a different category of legislation. The reason for that is because of the vast volume of provisions it contains. It is an enormous piece of legislation; we can all agree on that. In effect, what it seeks to do is transpose into Irish law the six or seven directives and regulations we have made in agreement with other members of the European Union that will commence on 12 June. However, it also contains our own provisions that we want to include in order to ensure that we reform asylum law in Ireland for the better. We can all agree that the laws which exist in Ireland in respect of asylum need to be improved. Senators may not believe that this is the mechanism to use to improve them, but we can all agree that they have to be improved.

I published the general scheme of the International Protection Bill last April. Very detailed pre-legislative scrutiny was carried out in respect of the general scheme by the Oireachtas justice committee, many of the members of which are here. During that process, the Bill was being drafted by the Office of the Parliamentary Counsel. As everyone here can appreciate, it is an extraordinary body of work to produce a piece of legislation of this detail, length and complexity. I do not think anyone would argue against the fact that it takes a considerable period to do it.

I wanted to try to ensure that the legislation would come before the Houses of the Oireachtas as quickly as possible. It was only feasible for this to happen at the beginning of this year. It is important to remind Senators again that we did have pre-legislative scrutiny. When the Bill went to the Dáil, we had three days of Second Stage debate. I agree that the Committee Stage debates here and in the Dáil were not as detailed or as extensive as I would have liked. I am more than happy and would like to discuss issues that I did not get to discuss here or in the Dáil, including family reunification - in the context of which there is broad discretion available to Ireland regarding the rules we are introducing - and those relating to other provisions.

It has to be said that I cannot dictate the speed at which we move through amendments in this House or the Lower House. I do not want Senators to think I am trying to avoid scrutiny. I am happy for scrutiny to take place. There is a requirement that the legislation be commenced and up and running by 12 June and be operational by then. Being honest with Senators, as I always am, this puts pressure on me, the Department and the Office of the Parliamentary Counsel to try to ensure we get the Bill in as good a shape as possible to come before the Houses of the Oireachtas. That is why, in terms of pressures, when the Bill was presented to the Dáil, I had to say that further amendments would be introduced in the Seanad on important issues such as legal counselling. We had a very good debate here last week on the issue of legal counselling and what it constitutes. There are debates here today on the rights of the child, and reference has been made to the letter from the Ombudsman for Children. We are having a debate here and we have another three hours when I will be here and want to debate the issues once the amendments come to the floor.

I want to look at the substance of the amendments before us, which seek to ensure there is a report produced. I thank those who tabled the amendments. I also thank Senator McDowell for educating me on Standing Order 179. I had not been aware of this Standing Order prior to him informing me about it last week on Committee Stage. Since then, I have instructed my officials that I want this Standing Order complied with. This means that I want there to be a report completed for this House. If the Bill is enacted sometime in April or May, it will be within a year of that, namely in the first quarter of next year. I have instructed my officials in this regard, and I want to see a report produced to the Seanad as required under Standing Order 179. Similarly, I will do so in respect of the Dáil. It will be the same report. I have no difficulty doing this, and I thank the Senator for bringing the matter to my attention.It may be breached significantly. I was not aware of it when I was a Member of the Oireachtas and before I became a member of the Government. It is obviously a benefit to the Houses of the Oireachtas that this Standing Order exists. I have no doubt that this House and the other should seek to invoke the powers that reside within the Standing Orders by seeking the reports. I will have no difficulty in confirming that I have instructed my officials to prepare a report in accordance with Standing Order 179.

There was a discussion about the rights of children. In respect of the rights of children and all applicants under the legislation, and as I mentioned in respect of the previous amendment, there will be a chief inspector's report as well. The report will be annual and deal with many of the issues of concern set out by Senators here.

Some Senators have said that this Bill is shameful because of the provisions it contains in respect of children. I totally disagree. I ask people to examine the provisions contained within the legislation in respect of children, be they guarantees for minors, set out in section 31, the provisions dealing with the appointment of representatives of unaccompanied minors, set out in Chapter 2 of Part 3, or the provision on the notification to Tusla where a minor is in the custody of a detained person, provided for in section 112. There are provisions throughout this legislation that seek to protect the unique position of minors who come to Ireland seeking international protection.

The issue of unaccompanied minors, which I believe was raised by Senator Higgins, is one of genuine complexity. The Senator asked why we should have age assessments.

Alice-Mary Higgins (Independent)
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For accuracy, I said the medical age assessment is inappropriate and has been marked as such by the UN Committee on the Rights of the Child.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The reason age assessment, no matter how it is conducted, is important is that if a person comes to Ireland and says they are 17 years of age, there is an obligation on the State, if their statement is true, to ensure the person is treated as a child, with all the benefits and protections that come with that under Irish legislation. The reason age assessments are necessary is that it would be a serious issue for child protection if an adult, say one of 20 years of age, were put into a residence reserved exclusively for minors. It is a very difficult position for the State when somebody says they are 17 years of age and there is a dispute about it or doubt over it. The presumption of minority applies but it is perfectly legitimate to have age assessments conducted. In fact, it would be irresponsible of the State if age assessments were not conducted.

Senator Flynn referred to direct provision as though it were a prison. It is not. We provide accommodation to people who come to Ireland seeking international protection. We do it in a much more professional and humane way than other EU countries of which I have experience in this regard. The reason the discussion is no longer about the abolition of direct provision, as some Senators raised and which reflects a debate we were having in 2019 or so, is because the numbers arriving into Ireland have increased so significantly. When having this debate in 2018 and 2019, we were talking about perhaps 4,000 to 5,000 people coming to Ireland each year claiming international protection. The debate at that time was about whether we could improve the standard of accommodation for them and abolish direct provision. I, along with the justice committee of which I was a member, visited many direct provision centres in the Dáil term that ran from 2016 to 2020. The focus then was on improving conditions. After Covid, from 2022 onwards, the numbers increased very significantly: 13,500 in 2022, 13,500 in 2023, 18,500 in 2024, and down to 13,000 last year. The significant number arriving put pressure on the ability to remove direct provision. Abolishing it cannot be achieved at this stage.

With regard to the pressures on the Government when it comes to the provision of suitable accommodation, I hope Senators appreciate it is a significant burden but that the Government is doing as good a job as it can to ensure accommodation is provided.

I fully appreciate the Senators' view that amendments are coming in very late and that their time to debate the legislation is restricted. However, all I ask them to note is that it is not a trend on my part to guillotine legislation. The reason it is being proposed here is the time pressure to ensure the Bill is enacted. Also, the size of, and level of detail in, the Bill meant we could not just arrive, at the beginning, with a finished product with everything in it.

Mark Daly (Fianna Fail)
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Before I call Senator McDowell, it is important to reflect the concerns of Members in relation to the number of amendments introduced. Given the arrival of so many amendments, the Houses of the Oireachtas staff had to work throughout the St. Patrick's Day weekend, late on Monday and beyond to process them. This is not the way staff of the Oireachtas should have to spend their time on legislation coming from the Dáil. I thank the Minister for outlining the time pressures and the Members for raising their concerns on this important legislation but, as Chair of the Seanad, it is important for me to express the very genuine concerns expressed by Members regarding so many amendments arriving so late, which had such an effect on the staff of the Oireachtas.

Michael McDowell (Independent)
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I agree completely with the Cathaoirleach's remarks about the Bills Office. The fact that this document was produced effectively within 24 hours of the conclusion of Committee Stage is a tribute to the hard work, dedication and patriotism of the staff of these Houses. When we in this House complain about the absence of notice on anything, it is always at the back of my mind that there are literally people working until the early hours of the morning to provide us with whatever notice circumstances afford. I fully accept what the Chair saying in relation to that.

The second thing I want to say is that the Minister has rightly said – I want to acknowledge this – that he has devoted his personal time to the debating of this and other legislation of his to a remarkable extent. He has not done what some of his colleagues might have been tempted to do in years gone by, which was to ask a Minister of State to take this or that Stage when it was apparent to everybody in the House that a Minister of State did not have the authority to accept even the principle of an amendment, let alone accept an Opposition amendment. The Minister has been very generous with his time by being present for debates.

The Minister stated that this has to be up and running by 12 June. I do not accept that it has to be up and running by then.To examine one aspect of this - Chapter 6 dealing with asylum border procedures - the Minister has spoken about this. He will not, by 12 June, have an asylum border procedure centre established. The Minister will not do it. With the best will in the world, I have been where he is and I know what you can do and what you cannot do. That will not be fully operational. All of the provisions that would be necessary to operate such a centre just cannot be done or put in place. The centre cannot be chosen before 12 June. We know it will be introduced gradually and in stages. I would wager a fair sum of money that the asylum border procedure centres, which are places where people who are subject to the asylum border procedure are required to remain, will not be there within the next three to five years. This is because of the difficulties involved, such as who will operate them, who will ensure they operate in an orderly fashion and who will maintain order in them? There are all sorts of these questions and I find difficult to see how they could possibly be in operation during this calendar year.

In the course of the debate the other day, there was some discussion on Committee Stage about the decision of the High Court, which dealt with compensation of persons who were inadequately housed at the height of the housing shortage, when tents were being put up around the city here in Dublin on an informal basis. One thing I want to say is, that the judgment of Mr. Justice Cian Ferriter in that matter - and I appreciate the Minister is minded to appeal and is therefore limited in what he can say on the subject - anonymised the two persons to whom damages were given, for good reason. One of the accounts on the record of the High Court stated that one of the persons to whom compensation was given, and I would like this House to know it, was an Indian national who apparently, on the judge's finding, was claiming he was a Christian and had a relationship with a Muslim girl in India. As a result of this, her family or people associated with her had made threats to his safety and he had been forced to leave India. I will not talk about the credibility of having to leave a continent because of a particular threat to you by the members of a different religion but the point that was of huge significance was, that he - Mr. A - went to Europe thereafter, went to the United Kingdom, spent 17 months there and then chose to come to Ireland at a time when we were in the midst of our crisis. The Irish State failed to provide him with proper accommodation and he had to live in a tent. He was compensated. The only point I am making is, we are legislating in the context of obligations to people of his kind but we have to be realistic. If someone chooses, having resided in the United Kingdom for 17 months, to come here and finds we do not have accommodation for him and he is obliged to live in a tent and to suffer on that account - and he did suffer on that account - the idea he can sue the Irish State for damages for failing to provide him with a proper roof and accommodation seems to me to be wrong. I mention that for this reason. If you guillotine legislation through, there are people out there, the hard right, who will exploit the fact this was rubber-stamped through the Oireachtas. That is one of the most important aspects of this. If we rush this legislation through, the hard right will say that this Act was never even properly considered. We owe it to ourselves to take sufficient time with this legislation to dispel the proposition that it was run through the Oireachtas by a series of guillotines with the vast majority of it not being considered at all.

The Minister said in relation to amendment No. 4 that it is his intention to comply with the obligations set out both in the Standing Orders of the Dáil and of the Seanad to make the report required of a Minister. He is not alone in this because as I said earlier it came as a surprise to me that was contained in the Standing Orders of this House. In the circumstance that the Minister is undertaking to report, and I hope it will not be in a cursory way, 12 months after the enactment of this Bill, if it is passed by the Dáil and signed by the President, I want to put on the record of this House that I am taking him at his word. I am also relying on the Department of justice to comply with the Minister's instructions whereby the report not be a laconic couple of pages but will really state how the Act is actually working in all of its aspects. If, for instance, I am right about the border procedure centres not having been established I would like to see that the Department furnishes an explanation as to why it has not been done.

Likewise, Members of this House have raised the question of determining the age of minors. We cannot have a situation where minors can self-identify as being of a particular age in circumstances that lack credibility. The Minister has correctly pointed out that if you put 24- and 25-year-olds who claim to be aged 17 into accommodation with 12-, 15- and 16-year-olds, you are in breach of moral and legal obligations on that account as well. There has to be realism here. The Minister mentioned the pre-legislative scrutiny and I was there for a portion of that. I have to say, I was taken aback by people who said that the law should be that, in every circumstance, a claim of minority should be accepted by the State. That cannot possibly be right and it is not a common-sense thing to do. In the spirit of the Minister stating he will comply with the requirements of the two Houses in the report required by the Standing Order of both Houses, and on the basis that the report, I hope, will not be a laconic, inadequate document but will really deal with the problems and realities of this legislation, it is not my intention to put this amendment to a vote in order to enable other amendments to be considered.The Minister said this is important legislation and that it is very big, which is true no matter what view you take of all its provisions. However, it cannot be the case that the bigger the Bill, the less scrutiny it gets. The Planning and Development Act 2024 was guillotined through as being hugely important and it was twice the size of this. A Leas-Chathaoirligh, you may be interested to know I wanted to see what the President had signed and asked for a copy of the Act as signed into law by the President. I was informed a printed edition would not be available until an Irish translation was done of it. I do not know when that will be done. My office had to get a bound copy of what the President had signed compiled and I was charged €400 for a thing the size of an old phonebook. In the meantime it has been amended on an emergency basis so my bound volume is already out of date. My point is the size of a Bill does not mean it deserves less scrutiny. It deserves more scrutiny the bigger it is because the bigger it is, most likely, the more important it is.

Maria Byrne (Fine Gael)
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Before we move to amendment No. 5, I welcome to the Public Gallery Mr. and Mrs. Brian Dunphy from Blackrock in Cork city. They are guests of our colleague, Senator Conway. They are very welcome and I hope they enjoy their visit. I also acknowledge Deputy Neville was here with some guests as well.

Amendments Nos. 5, 36, 59, 102, 248 and 280 are related and may be discussed together by agreement. Is that agreed? Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The purpose of these technical drafting amendments is to ensure consistency in the references in the Bill to the Data Protection Act 2018 and the general data protection regulation.

Maria Byrne (Fine Gael)
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I welcome Senator Wilson and the Taiwanese representatives who are with him. They are very welcome to the Chamber.

Michael McDowell (Independent)
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I move amendment No. 6:

In page 20, between lines 17 and 18, to insert the following:

“ “Common Travel Area” means the area consisting of the State, the United Kingdom of Great Britain and Northern Ireland and those dependencies in respect of which the nationals of either jurisdiction generally have freedom to travel from one jurisdiction to the other and to reside there without any visa or residence permit;”.

Gerard Craughwell (Independent)
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I second the amendment.

Michael McDowell (Independent)
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It is fairly evident what this is. It provides for a definition of the "common travel area" because the phrase is used in subsequent amendments of mine and of other Members and it should be defined.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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In fairness to the Senator, it is an accurate definition and description of the common travel area but since the term does not exist in the Bill at present, it does not make sense to include it. Obviously if Senator McDowell's subsequent amendments were accepted there would be a purpose to including it, but I regret to announce I will not be supporting those other amendments and so I have to oppose this amendment.

Michael McDowell (Independent)
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I am not a great fan of grouping of amendments but it is not grouped with the subsequent amendment and therefore I am trying to save time. I do not expect the Minister will accept it.

Maria Byrne (Fine Gael)
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Amendment No. 7, in the names of Senators Higgins, Ruane, Flynn and Black, has been ruled out of order.

Eileen Flynn (Independent)
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Can I ask why?

Maria Byrne (Fine Gael)
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It was because it does not arise out of Committee proceedings.

Lynn Ruane (Independent)
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I think it does but there is nothing I can do about it now. We made sure everything we put forward had been discussed on Committee Stage.

Maria Byrne (Fine Gael)
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Amendments Nos. 7, 55 and 57 related to the definition of "document" in the Bill and the retention of such documents. The amendments do not arise out of Committee proceedings and must be ruled out of order in accordance with Standing Order 170.

Maria Byrne (Fine Gael)
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Amendments Nos. 8, 10 and 73 are related and may be discussed together by agreement. Is that agreed? Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Amendments Nos. 8, 10, 73 and indeed 194 define the phrase "international protection guardian" for the purposes of section 2 and amend the Bill to reflect the phrasing inserted into the national vetting bureau Act and the Children First Act.

Maria Byrne (Fine Gael)
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Amendments Nos. 9, 11, 236 and 271 are related and may be discussed together by agreement. Is that agreed? Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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The main amendment in this grouping is amendment No. 271, which proposes the insertion of a new section 274 to provide for the sharing of information by relevant bodies. The purpose of the new section is to make clear provision for the sharing of information, including personal data, by public bodies for the purpose of carrying out functions under the Bill. Provision is made for necessary safeguards. Information may be shared under the new section only to the extent that it is necessary and proportionate and subject to suitable and specific measures being taken to safeguard the fundamental rights and freedoms of data subjects in processing the personal data. Where information is shared under the new section, the relevant body with which it is shared may only use the information for the purpose of the performance by it of its functions and only to the extent necessary and proportionate for that purpose. The proposed new section will enable the Minister for justice to make regulations on information sharing for the purposes of this Bill. Relevant principles and policies to govern the exercise of the regulation-making power are also included. The Minister will be required to have regard to the need to safeguard the fundamental rights and freedoms of data subjects and to specify suitable and specific measures to safeguard these fundamental rights and freedoms of data subjects in the sharing of personal data. Relevant bodies will be permitted to enter data sharing agreements subject to safeguards corresponding to those in the Data Sharing and Governance Act 2019. The sharing of personal data relating to applicants for international protection and beneficiaries of temporary protection is governed by a number of existing enactments. It is clearly stated this new section is not intended to affect the operation of other enactments that permit or require data collection or data sharing.

Amendments Nos. 9, 11 and 236 are consequential on amendment No. 271.

Maria Byrne (Fine Gael)
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Amendments Nos. 12, 13, 19, 38 to 41, inclusive, 67, 68, 72, 74, 97 to 101, inclusive, 116, 119, 121 to 123, inclusive, 131 to 137, inclusive, 163, 164, 167, 168, 171 to 173, inclusive, 175, 179, 184 to 187, inclusive, 194, 198, 217 to 219, inclusive, 225 to 232, inclusive, 238 to 247, inclusive, 256 and 270 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank the Leas-Chathaoirleach for reciting all those amendments. They are technical drafting amendments to correct cross-references and improve the clarity of the text.

Maria Byrne (Fine Gael)
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Amendment No. 15 has been ruled out of order as negatived in committee of the whole Seanad.

Maria Byrne (Fine Gael)
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Amendment No. 16 has been ruled out of order as involving a potential charge on the Revenue.

Maria Byrne (Fine Gael)
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Amendment No. 17 has been ruled out of order as negatived in committee of the whole Seanad.

Maria Byrne (Fine Gael)
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Amendments Nos. 18 and 24 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Patricia Stephenson (Social Democrats)
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I move amendment No. 18:

In page 26, between lines 23 and 24, to insert the following: "(2) Any order or regulation made under this Act shall comply with the European Convention on Human Rights.".

I touched on a few of the points earlier during Senator Boyhan's amendment, but I will reiterate some of the elements. In his response to the contribution I made earlier, the Minister said that to suggest that the signature in December 2025 of the Irish State and the Minister on the political declaration by 27 members of the Council of Europe was somehow partisan or niche, and that it was a mistake to characterise it that way. I did not characterise it that way. I called it "populist and insidious". Some colleagues in the Council of Europe did sign it, but it is important to note who did not sign it. France, Spain, Türkiye and Germany did not sign it. Those four countries alone host approximately 50% of all the refugees, asylum seekers and people under temporary protection among the Council of Europe member states. Those states with the objectively biggest migration challenge are not jumping on the populist bandwagon by signing the joint statement. Indeed, the French ambassador to the Council of Europe described the move by Ireland, among the 27 member states, as insidious.

Last week, the Minister said there were just a handful of cases from other countries that made this signature so important. I emphasise that just a handful of cases from other countries is the reason we are seeking to amend and alter the international human rights system. That beggars belief. That is why I want to see this amendment accepted.

The Minister said earlier, in response to Senator Boyhan, that compliance with the European Convention on Human Rights, ECHR, is already standard practice as part of the Government's policy basis. It has signed up to it. Therefore, I do not understand why we would not include an amendment such as this. Why would we not legislate our commitment to it in this legislation?

Of the 54,000 cases pending before the ECHR, approximately 1.5% relate to immigration. Most of them will be found inadmissible. In the past ten years, the court processed 430,000 applications, of which approximately 2% concerned immigration issues. Of the 54,000 pending cases, only four concern Ireland. We are talking about minuscule issues here.

The Minister implied earlier that the threshold around the issue of inhumane and degrading treatment and torture is too high. He mentioned that the hooded men case did not rest on torture and that the decision made related to inhumane and degrading treatment. I would like all of us in this Chamber to agree that what happened to the hooded men was, in fact, torture. It points to the conservativeness of the court, rather than its liberalness, to be awarding these decisions on low thresholds. It is actually a very high threshold that you are required to meet.

States are central to the ECHR. It is states that are responsible for implementing the convention. It is states that are responsible for executing the judgments of the European Court of Human Rights. It is states that are responsible in the meetings in Strasbourg for supervising the execution of judgments against other states. It is states that are responsible for resourcing the system such that it is capable of managing its workload and delivering positive and efficient outcomes. It is a misdiagnosis to look at the list of unexecuted judgments and say that is a problem for the court. This is because states have not implemented the judgment. It is completely disingenuous to say, for example, that the courts prevent deportations of foreign criminals. The Minister earlier listed a few cases and recommended that I go and look back at them. I shall do that. However, the court is enormously deferential to national systems. That is the truth of it. In a few of the high-profile cases and decisions, the courts were being over-compliant. If a superior court in Ireland, or indeed in Denmark, where we have seen some of these cases, issued a ruling whereby it found a criminal could not be deported because of the ECHR, it is not because of the court in Strasbourg. It is not because of the European Court of Human Rights. In such cases, it is a matter for the Danish or, in our case, the Irish courts. In such cases, the state should develop a proper litigation strategy, challenging such judgments and ensuring ongoing dialogue with Strasbourg in order to ensure harmony between what Strasbourg says and what, for example, the Danish court says. That is it being implemented properly. That is why I am requesting this amendment be accepted.

The Irish signature among the 27-country declaration in December is disturbing. It brings into question our meaningful practise of international law and human rights. I am speaking about this and submitted these amendments because of my fear of the trickle-down effect.

I mentioned earlier that the Labour Government in the UK will not be able to out-Reform the Reform UK party. We cannot out-right the far right. The UK Labour Government, sensibly, wants to stay in the ECHR. It is leading on this and suggesting these amendments, these tweaks, shall we say, of the universality of human rights and tweaking the concept of the universality of human rights. It is a complete misnomer. You cannot do that. It is either an absolute right or it is not. The UK Labour Government's attempts to do that is it pandering to Reform UK. We have seen it in the past. David Cameron's Tory Government did not want Brexit. He wanted to stay in the EU and here we are, so many years later. Brexit was a travesty for this country in terms of the people in the North who wanted to remain in Europe. We and the Government risk engaging in a race to the bottom. It is a race to the bottom on standards of human rights. There was a time when Ireland was a champion of human rights. It was considered that across the world. We led on this, whether that was in the UN or the Council of Europe. When did that change? Was it because of this migration crisis and under the cover of this migration crisis? The idea that we would lower the threshold on what is considered torture and inhumane and degrading treatment is horrifying. I said previously that it is not just horrifying for people who are in the asylum seeker and international protection system. It could be horrifying for any one of us because once you change those human rights frameworks for one group, you change them for everyone.

The ECHR is increasingly deferential. I want to get that on the record. It is increasingly differential to national courts and national decision-making spaces. That is the truth and the simple reality. Any populist call to the contrary is a fallacy and is not rooted in any real data or facts. However, I believe it is a nice soundbite to say that the ECHR is somehow impacting judicial sovereignty or independence in Ireland. It sounds great.

What we are seeing is a politicisation of human rights. Judicial independence of the European Court of Human Rights is fundamental to the rule of law and democracy. Attempts to give political direction to the justice sector are concerning. When it comes to Article 8 and deporting criminals, Article 8 allows for proportionality, unlike Article 3, which does not allow for proportionality. The court has provided detailed criteria to govern expulsions. Adherence to the ECHR does not prevent the deportation of criminals, according to the case law of the court. I want to get that on the record. That is the argument through which we are saying that we should reduce the language and commitment on torture. That is the argument in which we are saying that we should withdraw from components of Article 8 of the ECHR. As I say, Article 8 allows for proportionality. It allows for the deportation of criminals. That exists within the existing case law. Why do we not look to that? The truth is that states have been able to deport criminals under the existing case law of the ECHR.There is no evidence immigration cases are being escalated to the court in high numbers. We cannot say we are maintaining the absoluteness of the ECHR while also narrowing the scope of Article 3. I mentioned the Good Friday Agreement. Have the unintended consequences of changing the ECHR been considered? We could also talk about procedural norms around engaging civil society. Civil society participation is a key pillar of a healthy democracy, as is meaningful debate on legislation and giving time to talk about every single amendment, for that matter. We see a chipping away at the norms of democracy and of civil society engagement. That is an unintended consequence of what is happening with the ECHR. For example, I do not believe the Irish Human Rights and Equality Commission, IHREC, or the Irish Council for Civil Liberties, ICCL - two of our leading human rights bodies, one of which holds a mandate from this State - have been engaged in the attempts to change elements of the universality of our human rights through the ECHR.

The reason I want this amendment and to have the ECHR acknowledged in this legislation is that political engagement with the ECHR is really important. We should see states engage meaningfully with the courts. I do not have a problem with the concept of political declarations. However, the letter signed by nine states - not Ireland - last year had racist undertones. There are other ways the Government could engage to make the court and the ECHR more efficient, for example, the backlog of the courts could be looked at, as could clarity, because the court sometimes introduces concepts that are not very clear. For instance, in the SAS v. France 2014 case, the court introduced the "vivre ensemble" concept. which is still not clear to a lot of people. Consistency is another area. Sometimes, people perceive inconsistency in judgments by the court. At times, the court appears to find differently even in similar cases, for example, in Verein KlimaSeniorinnen Schweiz v.Switzerland where a violation was acknowledged or in Carême v.France where there was no violation. There was a good reason for a different decision but the court did not communicate the distinction or explain the decision clearly to the public. There is a sense of inconsistency and lack of trust due to that. These are ways the work of the court could be strengthened rather than undermining its judicial independence, which is super concerning.

There is a significant margin of appreciation when it comes to the court. Perhaps there have been instances of overinterpretation by national courts but that is the responsibility of national courts, not of the European Court of Human Rights. The court is clear that states have a huge margin of appreciation and are not limited by the convention. What the Minister risked by signing that letter was setting a precedent, in that states, without evidence, get to drive domestic agendas in our international human rights framework. That is worrying. It is also worrying when human rights are conflated with national security. I do not know what that means in practice. If the Government is already meeting the guidelines on the ECHR, why can both of my amendments not be included in this Bill to show our legislative commitment to upholding human rights?

Maria Byrne (Fine Gael)
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There were two groups here from Presentation Secondary School in Clonmel. They were guests of Deputy McGrath.

Alice-Mary Higgins (Independent)
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I second the amendment.

Michael McDowell (Independent)
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I do not agree with Senator Stephenson to some extent and I agree with her in other respects. The joint statement the Minister signed with a number of other countries was designed to bring some degree of common sense and reality to a situation in which overreach by the European Court of Human Rights in Strasbourg had led to major difficulties for individual states in trying to balance national interests, including the right to deport somebody, with other entitlements of the proposed deportees. While Senator Stephenson referred to France, Germany and Spain not signing the statement, they reserved their position by adopting the position taken by the Council of Europe that further talks would take place in respect of the particular issues raised in the joint letter. It was not the Minister's solo run on this issue. The 26 signatories of the letter include the United Kingdom, Denmark, Italy, Albania, Austria, Bulgaria, Croatia, Czechia, Estonia, Finland, Hungary, Iceland, Latvia, Lithuania, Malta, Montenegro, the Netherlands, Norway, Poland, Romania, San Marino, Serbia, Slovakia, Sweden and Ukraine. It is not that the Minister's co-signing of that letter was some watering down of the ECHR. It was meeting the cumulative jurisprudence of the court of human rights in Strasbourg. The point I want to make in distinction to the attitude taken by Senator Stephenson is that there is nothing infallible about that court. It makes mistakes from time to time. It makes egregious mistakes on some rare occasions. I will give an example of an egregious mistake. It held against the Government of Switzerland, at the insistence of a group of old-age pensioners, that their health was damaged in a manner that contravened their personal rights under the convention due to the failure of the Swiss Government to take sufficient climate action policy decisions and implement them. The climate in Switzerland, as far as I am concerned, is not determined by the actions of the Swiss Government; the situation is slightly more complex than that. That kind of legal adventurism by the court shocked many people - that it would say a government of a sovereign state was infringing the convention by reason of its climate policies and that implementation of climate change controls was actionable in Strasbourg. It is activism of that kind that tends to discredit the European Court of Human Rights. Likewise, if governments have a serious difficulty with where advanced - I use that phrase - jurisprudence of the court lands them in relation to how they deal with people regarded by them as a threat to national security, they have every right within the terms of the convention to address that issue. They do not just have to simply stand mute and say that is the state of international human rights law and there is nothing they can do about it. That is not the nature of the convention. The ECHR was a post-Second World War convention. It was designed to create a framework whereby member states undertook to one another to respect what were regarded at that stage as minimum guarantees of human rights, not maximal views of where human rights law could take us at the hands of activist judges.I mentioned earlier, as did Senator Mullen the other day, that there can be occasions when jurisprudence brings us to outcomes that are almost inexplicable to the common sense of ordinary citizens. I am talking about the person to whom I and Senator Mullen made reference, a man who left India because of a dispute and threat to his life or whatever, because he had a relationship as a Christian with a Muslim woman. He convinced himself that the only way he could be safe was to migrate westward from India to avoid the threat to his life and limb from her relatives. He went to England and spent 17 months there. Something happened in his mind at the end of his 17 months in the United Kingdom and he decided to go to Dublin to claim asylum. He arrived in Dublin via Belfast on the open border, exploiting the common travel area, and applied for asylum here. There is no accommodation for him. He is given vouchers for subsistence and is obliged to camp out in a tent supplied to him by a charity. He voluntarily chose to come to Ireland in the circumstances where Ireland was not in a position to offer him a higher standard of accommodation. Yet, if you apply the law of the European Court of Justice in Luxembourg to his situation, as Mr. Justice Ferriter did, you end up in the situation where despite the fact that there was no emergency accommodation available when he opted voluntarily to come to Ireland, the Irish State ends up obliged to compensate him. That defies common sense.

When Ireland, as part of the Good Friday Agreement, enacted legislation requiring interpretation of statutes and actions of official bodies to comply with the ECHR, it was done at a sub-constitutional level because the ECHR is not a sovereign convention binding on Ireland. It is a voluntary adherence to a convention. The Act made it clear, and judgments subsequently made it clear, that the Constitution is the fundamental law of this country and not the ECHR or the judgments of people in Strasbourg. I was Attorney General at the time the Act was formulated. It went as far as it possibly could to say that not merely should the ECHR have an interpretive function and compliance with it should be an obligation on the part of organs of the Irish State other than the courts themselves, the Act said that compliance with the ECHR also required compliance with the judgments of the court of Strasbourg rather than simply the Irish interpretation of what the ECHR actually meant. I just make the point that there is nothing sacrosanct about the European Convention on Human Rights. It is a consensual convention to which the member states voluntarily adhere to the point where they can. The human rights legal community sometimes gets confused about this. It is wrong to accord it some kind of Supreme Court status for Ireland. If the jurisprudence of that court becomes inoperable or creates a serious problem for the member states, then if 38 member states say they have a problem with this, they are entitled to say so. Even France, Germany and Spain noted the official position of the Council of Europe that the issues raised in the letter, to which the Minister was a co-signatory, should be considered.

In the end, it is no dilution of anything to maintain the workability of the ECHR. It is no departure from human rights standards to say that particular judgments and outcomes such as that required by the European Court of Justice in respect of the man from India, do not amount to common sense. Sovereign member states have the right, especially under the European convention, to seek to make sure that its terms as interpreted by the court are compatible with their sovereignty and duty to their own citizens. We should not feel in any sense ashamed or claim it is a dilution of human rights if the vast majority of western liberal democracies that have considered the issue think the court has gone too far. There should be a process whereby they can express that opinion, and their expression of that opinion has some force and changes things rather than simply leading to member states of the convention ignoring its terms and the jurisprudence of the court.

Rónán Mullen (Independent)
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I currently serve on the Irish parliamentary delegation to the Council of Europe along with Senator Stephenson. I have great respect for her and for her concerns. I also serve on the committee on the appointment of judges to the European Court of Human Rights. I have taken a great interest in what has happened with Ireland's position in joining the Danish initiative with 25 other countries to ask in effect for a fresh conversation and rebalancing of the interpretation of the convention by the European Court of Human Rights. Senator McDowell mentioned France, Germany and Spain and I find their position interesting. Some 26 countries out of the 46 now on the Council of Europe, since Russia is no longer a member, have a clear position that there has been overreach by the European Court of Human Rights in its interpretation of the convention in such a way as creates unacceptable difficulties for member states as they seek to protect their citizens and promote the common good according to their role. What is interesting about France, Germany and Spain is that in some of those countries it is not that they are on the other side of the argument as Senator McDowell has said. They are on board with the process. It also reflects possible political differences of opinion in their situations. That is what has prevented some of them at least from signing up to the letter as well. I am not normally one for saying that just because everybody is in favour of something that means it is somehow a good idea. The Minister's position on this has to be examined on its merits.Both he and Ireland are in the right in joining with other countries and seeking to interrogate the way the European Court of Human Rights has functioned in respect of these issues, and to ask those hard questions of the court. This has given the Council of Europe and the bureaucracy relating to it a fit of the vapours for the very good reason that they are anxious to prevent any perception that the authority of the court is somehow relative and that this might somehow give succour to countries in respect of cases where decisions have been made by the court that were very much deserved. I refer here to countries that have genuinely frustrated the cause of democracy, human rights and the rule of law.

The concern with regard to avoiding a perception of relativism or some kind of moral hazard to the effect that certain countries will somehow disregard the common understanding of human rights cannot be turned into some kind of a dogma whereby decisions made by the courts can never be questioned. Courts are sometimes activist, and they sometimes lose their way. It is not just international courts that can lose their way. It is a very important principle of a democracy that there is a separation of powers. When I give talks to students, as I occasionally do, I mention the fact that we can count ourselves fortunate that our judges are independent and that a Taoiseach or a Minister cannot ring up a judge in the middle of the night and say "You had better decide that case this particular way, or else." Sadly, there are people in far too many parts of the world who live under systems whereby there is no separation of powers and where executive power rules all, corrupts the rule of law and frustrates the ability to keep everybody equal before the law. I am aware of all of that.

There has to be respect for the independence of the judicial function. Let nobody say that this means that the judicial function is always perfect and always right. There is an NGO that I have a lot of respect for, namely the European Centre of Law and Justice, which has done a considerable amount of research. It looked, for example, at the way the George Soros Open Society Foundation seemed to have an awful lot of influence in forming human rights activists who ended up, in many cases, as I understand it, on the court. There is a great risk of groupthink in the world of human rights on a range of issues. Sometimes, human rights bodies talk as though the ideas they are promoting were handed down from Mount Sinai and cannot be questioned and are somehow a true and authentic interpretation of the context of human rights. That is very far from being the case.

Some organisations, even in our own country, have feet of clay. Mr. Liam Herrick of the Irish Human Rights and Equality Commission gave the Minister a wallop for signing Ireland up to the letter to which I referred earlier with 26 other countries. Mr. Herrick had an association, at one point at least, with the Irish Council for Civil Liberties. A number of us here pointed out in recent weeks how the latter had misrepresented the state of the law in Ireland in a booklet that was produced for schools around their obligations regarding pronouns and so on in the context of trans issues. What we saw was a kind of bait and switch-----

Eileen Flynn (Independent)
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What do trans issues have to do with the Bill?

Rónán Mullen (Independent)
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----whereby the council held out a certain state of affairs as being an obligation that schools had to use pronouns and suggested that they might be on the wrong side of the law when, in fact, the law is in no way settled on those issues at all. We had an NGO receiving money, I think from the Irish Human Rights and Equality Commission, towards the preparation of this document that misrepresented the law for political purposes. I offer this as an example to show that human rights advocates and human rights academics sometimes like to lead us to believe that a certain state of affairs must apply as a matter of human rights law when, in fact, they are very often pushing their own agenda - an agenda might be shared by practically all of them. That is an example of groupthink;, it is not necessarily an example of correctness.

Eileen Flynn (Independent)
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On a point of order-----

Rónán Mullen (Independent)
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I do not make this point to be controversial, although I know one of my colleagues finds it controversial.

Eileen Flynn (Independent)
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On a point of order, we are already guillotining the debate on the Bill. The Senator is speaking on trans rights; he is not speaking on the Bill.

Rónán Mullen (Independent)
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I regret that fact because we transacted very happily yesterday.

Mark Daly (Fianna Fail)
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Senator Flynn is trying to interject, which she is allowed to do under Standing Orders only if Senator Mullen allows. If he does not want to do it----

Rónán Mullen (Independent)
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I am happy to allow.

Mark Daly (Fianna Fail)
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Senator Flynn has 30 seconds.

Eileen Flynn (Independent)
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Senator Mullen is speaking about trans rights. Earlier, the Cathaoirleach told me to stick to the Bill. This Bill is not about trans rights, so we have gone way off point. It is about children in international protection.

Mark Daly (Fianna Fail)
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I thank the Senator. As already stated, because many of the amendments will not be reached, I am allowing a little latitude. This amendment relates to the human rights element of the European Convention on Human Rights, which is an element relating to identity and other issues. I am being fair to everybody and am giving a lot of latitude because many of the amendments will not be reached. This does relate to human rights as well. People can discuss it in that context.

Rónán Mullen (Independent)
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I thank the Cathaoirleach. I assure Senator Flynn that if I were planning to veer into the issues and the controversies around trans matters, I would be saying an awful lot more than I have been saying on this point. I merely give it as an example as to how human rights bodies have feet of clay,and how they propose ideas as though they are holy writ when, in fact, they are certain people's views of the world.

In the same way, there is considerable reason to think that aspects of the European Court of Human Rights jurisprudence have been shaped in some ways by ideology. Everybody is entitled to their own philosophy, and some people will say that one person's judicial philosophy is another person's ideology. I get that. The fact is that the courts have gone in a particular direction. If we are to have democracies, we cannot set up judges as dictators who can turn previous understandings on their head without any future change being possible. We might as well just appoint judges to run our countries altogether if that was to be the judicial function. It is not the judicial function. It is the role of judges to interpret and apply the law. It is the role of democratically elected governments to secure the common good in their countries according to their lights and according to the desire and the will of the people as expressed. Yes, that is subject to higher duties, and it cannot be that Governments can cause their legislators to legislate for just anything. Yes, there are international understandings about what is necessary in order to promote democracy, human rights and the rule of law.

Where the courts, in the view of the majority of governments of the Council of Europe, are seen to have lost their way ever so slightly, we cannot pretend that this is just about a conversations between governments and courts. Governments want the European Court of Human Rights to reassess its position, not on every issue but on some issues where jurisprudence has made it impossible, in the view of those governments, to secure the common good for the people in their respective jurisdictions. There can be nothing wrong when it comes to democratically elected governments meeting, discussing and identifying issues of concern in decisions that have been made, and, in this case, seeking to get the European Court of Human Rights to reconsider and reassess the situation. There is no point in pretending that this is just governments acting in some kind of consultative way to help the court make up its mind. There is an awful lot more direction involved in this, and that is as it should be.

Mark Daly (Fianna Fail)
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Before I call the next speaker, I welcome those from the men's club in Fermoy. They are here as guests of Deputy Noel McCarthy. Among them is J.J. Bunyan, a fellow Kerry man. If you have a long road to travel, J.J. will keep you entertained. Whether it is from here to Fermoy, Kerry or all the way to America by boat, he will keep you entertained all the way.I thank J.J. for being here and I declare he helped me get my nomination for the first Seanad election I ran in in 2007.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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He has a lot to answer for.

Mark Daly (Fianna Fail)
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Yes, he is the one responsible for that. I thank J.J.

Alice-Mary Higgins (Independent)
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I will be brief because I am conscious of the many other amendments we need to get to but I want to indicate my full support for Senator Stephenson's amendment. The Minister suggested it is a pity if we do not get to everything. It is not a pity; it is a choice. We have spoken of one amendment at length, and what of the others? I did the calculation. What was allowed for was just over one minute per amendment. There is no way, in the way that this has been designed, that all amendments would be got to. We should not contribute to, not greenwashing but democracy-washing, where we suggest it is a little bit unfortunate that the debate ran out. The Minister loves debate so much and loves talking about the issues but time ran out. It is a choice. It is a choice to curtail debate. It is a choice to not allow for it. That is why what Senator Stephenson has done is to focus on some of the fundamental issues. Among the many detailed recommendations people have made, we have recommendations about receipts when people search people's possessions and recommendations about the detail of reception conditions. Those detailed proposals and ideas that people have put forward for making the law better will not be got to. It is appropriate then that we have had a discussion from Senator Stephenson on some of the core of this.

Our human rights law might not have come from Mount Sinai, where others may take their direction while some of us may take direction from the international courts, but it comes from our learning. It comes from the Second World War. It comes from the knowledge of what went before it. The structures we have put in place within Europe and internationally in relation to international law come from an understanding, not from some naivety, "wouldn't it be nice" or an aspiration. They have come from an absolute understanding of the slippery slope of inhumanity and from a fundamental understanding of a quite radical idea which was not the idea under colonialism which many of these western liberal democracies participated in so freely for centuries. It is not the understanding of might is right, powers which exercise such cruelty and Germany's actions in the Second World War. It is not from that kind of understanding. It comes from the understanding - a radical idea - of all humans mattering, of human rights mattering for everybody and that we would set standards of how we treat our fellow humans. That is where the UN piece comes from. Then Europe has set itself those other standards to give leadership on what standards should look like because, of course, Europe has been the centre point of two world wars.

On the European Convention on Human Rights, which also draws on the Geneva Conventions, the Minister may not like individual judgments and I may not like individual Supreme Court judgment rulings or every judgment from the European Court of Justice, but the way one engages with them is through the court systems, navigating them, setting new precedents and making better arguments. One does not come with this suggestion that it may be easier if they diluted their standards, that if the court systems diluted their standards, we may be able to meet them. That is not how things should be approached. We have heard at length of people not liking different judgments. I will not go into the Swiss case. However, let us be clear. The World Health Organization figures indicate that 23% more people die now directly because of climate change and heat. The assumption may be that we would not expect people in Europe to die. Is it that those people were going to die in other parts of the world and we would never have to see them? Is it not annoying that they are coming and taking cases in Europe when we know that that slight cushion of money we have in Europe should affect these directly known, factual consequences of the actions of European governments? That should not touch us because the effects should happen over there and we should not have to hear about it over here. However, what people realise is that the vulnerable in European society, be they older people, younger people or people on the margins, have a lot to lose by the attempts to chip away at our protections under the European Convention on Human Rights. They are making that stand in many cases in solidarity with the others who cannot take those cases.

I passed every single day the men who were living on Lower Mount Street. They were living there as a choice. It was a choice that pandered to the far right. It was a decision based on a strategic messaging that said we like women and children refugees but we do not really like the men that they decided to stop accommodating the men. They made that choice. There was 100 at one time. It is not the case to suggest our poor State with its billions of surplus could not accommodate that when we see states across the world with nothing accommodating hundreds of thousands of refugees and giving them sanitation facilities and state-provided tents, if it is tents, rather than the idea that people could be given a €20 voucher and told, "Good luck in Dublin and, by the way, we need you here in another two days to report again." The fact is it is degrading to say that to somebody, and whether or not you like that individual case, and it was a very cherry-picked example of somebody who was in the UK first, the core principle is that when someone is seeking to exercise their rights under international law, they should be treated with dignity. They may then be unsuccessful in their application - so be it - when somebody is in the process of exercising their rights they should be treated with dignity. I do not think that is too high a bar for a State with the resources Ireland has to set itself. Should it be applied to all the people in Ireland who are homeless who sleep on the streets? Yes, it should. It is not acceptable for anybody. There is this idea of us being somehow unable to meet this standard and Europe is forcing us. We are able to meet it; it is a choice not to do so. Then the idea underneath it, a little subtle line, is that it will make it harder to do performative, competitive cruelty of a race to the bottom along the line of we do not want ourselves to look attractive. We want images of misery that migrants are experiencing around the world. We see that in the United States. We see it is not an accidental effect. Part of the agenda in the United States is to display situations of misery to create unhappiness and fear. That has a purpose. I am not saying that this is necessarily the Minister's intention but when and if we erode the kinds of standards of the European Convention on Human Rights, chip away at them, lower the bar and set the idea that countries should be able to pick and choose their own interpretations of the kinds of concepts we all agreed collectively as humanity, we are on a very slippery slope.

Frankly, so many of the provisions of this legislation are backward steps. They may not be the steps that I have talked about. They may not be what is happening in the United States but it is an architecture that allows for a very worrying erosion of rights. I worry that when we see erosion of rights in practice, the kind of thing that is allowed for here, it will be in breach of the ECHR. That is why having that safety net of a measure of a report that will show that, when we are testing this, we are testing it against that fundamental set of standards, which I do not think is too onerous for Ireland to meet it, is an appropriate safety net for us to have. For those of us who are disappointed to see the legislation guillotined through and who are disappointed that the specific concerns we have raised will not be addressed, at least ensuring ECHR will be measurably tested against the enactment of the Bill is some kind of a safety net and may act as a watchdog or a guard against the dangerous tendencies we have seen both in democratic practice in terms of the Bill and in some of the powers that are allowed for under the legislation.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Senator Stephenson for her amendment and all Senators for their contributions. It has been a very interesting debate and I am going to try to respond to it as much as I can. I will start by looking at the specific amendment. The debate we had went beyond the amendment, but I want to deal with the amendment at the outset. What Senator Stephenson is proposing is that a provision be introduced into section 3 - which is a section that governs orders and regulations I make under the Act – and that provision will provide that any order or regulation made under this Act shall comply with the European Convention on Human Rights. Everything I do as Minister for justice and every order or regulation I make, whether under this legislation if and when it is enacted or any other legislation, must comply with the European Convention on Human Rights. Not only that, it must comply with the charter set up from 2004 and indeed, more importantly, Bunreacht na hÉireann. I am required to act lawfully in everything I do, and that applies to every other Minister as well. The proposed amendment is unnecessary and could also be misleading because it simply states that there should be a requirement that whatever I do or whatever order I make shall comply with the European Convention on Human Rights. It would need to include that it must comply with the Constitution of Ireland and the charter of fundamental rights. I could list every piece of legislation which is relevant to the provisions within this Act and say that it must also comply with the Data Protection Act and all criminal justice legislation. It is unnecessary. It is implicit in everything that is done in legislation, by second statutory instrument or executive order that I must comply with the law. That applies to every Minister and to every office holder. It is unnecessary to put into legislation that the Minister shall comply with the law. It has to be implicitly recognised that I must and am obliged to comply with the law.

The provisions contained within the European Convention on Human Rights are extremely important and they influence what is contained within this legislation, and indeed all legislation. When legislation is being drafted, the charter, Bunreacht na hÉireann and indeed, the ECHR are all fundamental requirements that must be complied with when legislation has been proposed or any orders are being made. For that reason, I will not be supporting the amendment. It is, in my opinion, completely unnecessary.

The Senator did, however, bring the debate on to a more interesting discussion, and I welcome the opportunity to discuss the role of the European Court of Human Rights, the decision made in Strasbourg by 27 member states of the Council of Europe on 10 December to seek the process to get a political declaration, and other issues which were raised subsequently by other Senators. As I said to Senator Stephenson earlier on, Ireland’s commitment to the European Convention on Human Rights is absolute. That remains the case. However, it must also be the case that we recognise the role played by courts. Nobody elected persons to be on courts. Courts are not representative of individuals within societies or of the democratic wishes of persons. They are there to apply the law. They are a very important part of our constitutional architecture and governance. Elected representatives make laws and the courts ensure those laws are applied. For instance, for many years in Ireland, when challenges were made to our restrictive abortion laws, the courts said they could not change them because of what was in the Constitution, namely, the eighth amendment. We got around that by removing the eighth amendment to the Constitution, and obviously the courts were then able to apply different laws and rules. It is very important for the state of democracy that we emphasise and recognise that elected people make the laws and the courts apply those laws. It is not the function of courts to make laws because there is no democratic mandate behind the courts making laws.

I am very proud of the fact that the Irish courts in the 1960s and 1970s did enumerate what was within the Irish Constitution and set out the personal rights enjoyed by citizens of Ireland as a result of what they viewed as being the enumeration of unenumerated rights in our Constitution. That was a very important part of the judicial process. They were not making law; they were giving voice to personal rights that were contained within the Constitution but had not been enumerated at that stage.

I welcome the fact that Senator Stephenson says there is nothing wrong with the political declaration. The purpose of what the 27 member states signed up to on 10 December last was to ensure that there was a political declaration. That was sought because there was concern on the part of member states about how the court was interpreting, in particular, Article 3, and the provision dealing with inhumane and degrading treatment. I gave the example earlier of the hooded men and how that was an example of whether it is torture. The court said it was not torture but it was inhumane and degrading treatment. The reason many member states sought to ensure that we have a political declaration of respective issues is because of how the court was interpreting Article 3 in the context of many issues associated with immigration, and one was the instrumentalisation of borders, which is something that has happened on the eastern part of the Council of Europe, particularly at the Polish border with Belarus. There are issues of real legitimate concern for member states as to how the court is interpreting Article 3. Of course, it is up to member states to decide if they want to put in a political declaration and a political declaration will, of course, be taken account of by the European Court when it comes to interpreting the different articles.

There have been declarations before. There was the Interlaken declaration in 2010 for reform of the backlog in the court. There is nothing unusual or unorthodox about member states deciding they want to come forward with a political declaration in order for it to be used as a travaux préparatoires for the court in interpreting provisions within it. The reason there were specific issues in terms of removal of persons from one country to another was because of a number of decisions of the European court in the area of asylum and deportation of persons. As I mentioned earlier, one of them was the case of Paposhvili v. Belgium, where the Belgian authorities wanted to remove a person who had been convicted of quite serious criminal offences back to the country he came from, which was Georgia. The European court said that would be inhumane and degrading treatment because he would not get the same quality of healthcare treatment in Georgia as he was getting in Belgium, and he was a person who was ill. That is just one example of the type of relevant cases. Another was a case of MSS v. Belgium and Greece, where the Belgians again wanted to remove a person who was in Belgium and had had their asylum application removed, and they wanted to send them back under the Dublin III regulation to Greece. A challenge was brought, saying the conditions in Greece for asylum applicants would be overcrowded and clearly not as good as was the case in Belgium. There also, the European court intervened on the side of the applicant. Other similar cases include Tarakhel v. Switzerland. Those are the type of cases which have created concern among member states in respect of how the court is interpreting Article 3 of the convention, and in particular the definition of inhumane and degrading treatment. All of the states in the Council of Europe, from my assessment of them in December, are committed and want to remain within the European convention. Ireland absolutely is insistent upon complying with our obligations under the convention and ensuring that we remain part of it.It is extremely important to us that the UK similarly stays part of the European convention. We would want to be blind to not be aware of the risks of the UK not being part of the convention due to the efforts of a future British Government. That is why we should recognise and empathise with the position of the current British Government in respect of what it is seeking to do.

That is just some of the overview in respect of the issues at the Council of Europe. It is worthwhile having the debate here. There will be a political declaration in due course. It will probably be agreed in early May. One of the things we repeatedly talk about is democracy and the rule of law. Democracy and the rule of law mean decisions are made by elected people and also that courts ensure that the rights of individuals, be they convention, charter or Irish constitutional rights, are protected. However, it has to be the case that some direction can be given to a court in Europe by way of a political declaration. I am sure if the European court went off on a tangent that was very anti the rights of individuals and its interpretation was very anti the protections we thought existed under the provisions of the convention, we would want to do something to try to put the court back on a pathway by saying what member states meant by those articles.

I welcome the debate. I cannot accept the amendment. It is unnecessary. On Senator Higgins’s points, she seems to think this is part of a co-ordinated campaign to make life unpleasant for asylum applicants. It is not. It is an extremely difficult time and a difficult challenge for governments in Europe to deal with the asylum process, especially because of the chaos happening in the world. However, if you believe in asylum and the right to it, you must believe in an asylum process because if we just say everyone who says they are entitled to asylum gets it, that defeats the whole purpose of it, and why then should we not be honest and have open borders when it comes to where people want to go? We do not have open borders where people can go wherever they want to go. We have rules, and if we want to ensure we can protect asylum, we need to ensure the asylum process itself is a fair but firm process.

Patricia Stephenson (Social Democrats)
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I appreciate why the Minister is saying he has to comply with the ECHR but I do not see why we could not accept the amendments, especially the amendment on reporting. I just think it is a non-argument and we have had that in the Chamber before, though not in relation to justice. I think in the mental health Bill we were told we could not include the UN Convention on the Rights of the Child for some reason. The idea we cannot put the legislation and governing articles the Government says it abides by in its legislation is like double-speak. I do not know why we would not have it in the legislation. There is no clarity on that. It seems it should be a non-issue to accept the amendment if the Government is in fact abiding by the ECHR.

I have a whole messy set of notes here so Members will have to bear with me. To pick up on the Minister’s last point, no one is talking about open borders. No one has said that phrase. That is not anyone’s consideration. The Minister may forgive me, as it might not have been him, but certainly other senior members of the Government have made a comment about getting us in line with the UK to make Ireland an equally hostile environment for people seeking asylum. What we are saying is people have the right to seek asylum, which I assume the Minister agrees with conceptually as well. However, it has been said by members of the Government, though perhaps not by the Minister, that we should have an equally hostile environment to deter people. That has been said and has been implied by the Government.

I was a little mischaracterised in some of the responses. The Minister has said the commitment is absolute but I would argue you cannot have an absolute commitment to the ECHR while also seeking to lower the threshold of non-conditional rights, especially around Article 3. Again, that is double-speak. Up is down, left is right and black is white. You cannot have an absolute commitment while undermining the absolute protections of Article 3.

The Minister talked about democracy and rule of law. I commend those principles but a key element of democracy and rule of law is, of course, the civil society strand, that is, the space for civil society participation and inclusion. The Chiinu process has been utterly uninclusive. Human rights organisations, including the ICCL, which seemed to get some stray bullets in the contributions from other Senators, IHREC and human rights organisations across the Council of Europe have tried, tried and tried again to engage governments around the steering committee for human rights, CDDH, process. There was zero appetite for that engagement, so we cannot be claim to be champions of the rule of law while ignoring one of the fundamental pillars, which is civil society engagement. Within our aid and development work through the Department of foreign affairs, we have programmes on democracy and rule of law in countries in the global south and we expect them to have a metric of effective, meaningful and inclusive civil society engagement, but we are not doing that here. That raises some pretty serious questions about the commitment of the Government in that space.

There seemed to be a sense I was saying we should not have political engagement on the ECHR but I never said that and it was a mischaracterisation as well. Political engagement is incredibly important and that is why I talked about how states were fundamental to the court of human rights. I talked about how states were really important for implementing it and that states should be developing litigation strategies, challenging judgments they do not agree with and ensuring ongoing dialogue with Strasbourg to make sure there is harmony between what it and their domestic courts say. I said that very clearly.

I highlight again that it is disingenuous to say the court is preventing deportations of foreign criminals. There have been cases and the Minister cites them-----

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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If the Senator would let me-----

Patricia Stephenson (Social Democrats)
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There have been cases where that has happened but it has been an overinterpretation by national courts, as I have mentioned before. There is that dialogue and it is ultimately the responsibility of domestic courts to go back and challenge that legislation. Those cases were horrific but deportations on criminal grounds have happened as well under the rulings.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Slowly.

Patricia Stephenson (Social Democrats)
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Deportations under criminal grounds have taken place. Moreover, we have a handful of anomalies that should not have happened where deportations were blocked, but the domestic courts should be going back to the ECHR and having those proper litigation strategies in place when they do not agree with a decision on those things. Article 8, as I mentioned before, is something that can be looked at with proportionality and it is the one that is blocking the deportations, so it is really important to clarify that again.

To pick up on something Senator Mullen said about judges as dictators, that is not anything I am implying. I recognise the relationship between all those things. I recognise the role of elected members, which was mentioned too, in engaging with that. I believe in this idea, which I have mentioned before and which I think the Minister acknowledged, of having proper engagement and political dialogue with the court. That is really important. The Minister said it was not unorthodox but up to this point, the dialogue we have had has only ever been to strengthen it and has never been to weaken protections.

We heard that nothing was sacrosanct when it came to human rights. I actually agree, but I believe nothing is sacrosanct because we can always be increasing and strengthening human rights and can always be giving greater protections to humanity and to all people as equals and as individual equals. My challenge to the narrative that it is not unorthodox to have political dialogue and declaration with it has only ever been done to strengthen rather than to weaken.

I spoke about positive ways Ireland and other states could engage with the court on the question of efficiency, the clarity of judgments and the consistency in communication of judgments so that there is greater trust in what the court is putting out. That is really important. I talked about the margin of appreciation. These principles have been repeatedly reiterated since the early 2010s and the Interlaken process. They rightly focus on the primary role of states through their elected representatives rather than appointed judges in interpreting the convention in light of prevailing domestic circumstances. This scope to interpret, therefore, actually exists. That is the reality of it. I have promoted the idea of dialogue with superior courts. In order for national courts to fulfil their roles as principal interpreters of the ECHR, the European court needs to work ever more closely with national judiciaries and have that to ensure maximum understanding and coherence.There is also a question around transparency. The entire supervision of the execution of judgments is too secretive and exclusive. That could be a way that we could have dialogue with the court to strengthen what is coming out of it. As I mentioned before, there is also participation with civil society.

The ECHR has been amended seven times with additional protocols, but only to extend rights or to add new rights. My point earlier was about the fact that it is unorthodox for this to be the first time in the history of the ECHR to weaken rights. That relates to Article 8, which has a lot of proportionality built into it which would allow for the deportation of criminals, and Article 3, which is an unconditional right. My concern is that we chip away at the integrity of the ECHR for cheap political wins. In times of crisis it is important to go back to where this all came from. Senator Higgins talked about the slippery slope of inhumanity and that might is right. The ECHR was born out of a time when, if you were not a citizen, you had no rights. Your citizenship was the only thing that gave you rights. You did not have human rights as they did not exist. It was only if you were a citizen. The UN Declaration of Human Rights and the ECHR were to give people rights by virtue of being human, after the horror of the Second World War. That is why I am very concerned about attempts to undermine it. That is why I would like to see it built into our legislation.

The Government, like all states, is the custodian of the convention. There is no suggestion coming from me that it should not discuss the convention's system fundamentally. The question is whether we believe in the rule of international law and the existing convention. Do we want to strengthen it or weaken it? Do we want to bolster it in a time of crisis or do we want to undermine it? This is not about shutting down debate around human rights. It is about the effectiveness of the system. It is about honest good faith discussions based on facts and evidence and well-established international law. That is what I see as fundamentally missing from the 27 declaration. This is not about political differences; this is about fundamental human rights systems being undermined for cheap political wins. We use the word "fundamental" for a reason.

Mark Daly (Fianna Fail)
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Amendments Nos. 20 and 273 are related and may be discussed together by agreement. Is that agreed? Agreed.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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Amendment No. 20 is a technical amendment to repeal section 20 of the 2015 Act on the detention of applicants. Following the commencement of this Bill, any applicants being detained under that Act will be detained under Part 5 of this Act. It is therefore necessary to repeal section 20 of the 2015 Act.

Amendment No. 273 is a consequential transitional provision to deal with cases where an applicant is detained under section 20 of the 2015 Act immediately before the commencement of this Bill. It ensures that the detention of such persons is reviewed by a court as soon as practicable.

Mark Daly (Fianna Fail)
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Amendments Nos. 21 and 22 have been ruled out of order.

Nessa Cosgrove (Labour)
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I move amendment No. 23:

In page 28, between lines 16 and 17, to insert the following: “(2) Where an officer of the Minister, pursuant to any enactment or rule of law, performs a function conferred on the Minister by virtue of subsection (1), the officer is independent in the performance of that function.”.

Sharon Keogan (Independent)
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I second the amendment.

Nessa Cosgrove (Labour)
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This is a very simple amendment but it is an important one. It will enshrine the independence of officers in the International Protection Office within the asylum determination process under the Bill. Between the 1996 Refugee Act and the 2015 International Protection Act, an independent refugee commissioner played a key role in our system by examining each case and made binding recommendations to the Minister. From 2015 that process changed, with the recommendations then being made by international protection officers in the Department of justice. The independence of those international protection officers was specified in the Bill and the Supreme Court underlined its importance in line with the 2013 EU asylum procedures directive requirements for impartiality. The EU's new regulation replacing the asylum procedures directive made a similar requirement of impartiality. Clearly, at EU level the situation here has not changed, yet this Bill makes no reference at all to officials when it comes to deciding protection applications. All the power seems to be vested in the Minister as the determining authority. This amounts to an abolition of the independence that was core to the 2015 Bill, and which the Supreme Court endorsed unambiguously in the ASA judgment. It seems as if the Government is intending to treat international protection applications as a normal piece of its departmental business and that all functions will be vested in the Minister but carried out by officials, which means without any statutory independence.

This also means that there is no guarantee that a single person will be considered in deciding on an application case, which is really important. Under this Bill, a case could be treated like any other piece of departmental business and would be sent up the line through the hierarchy of the Department, with various eyes and hands adding to the decision-making process. This is not in line with the spirit of EU law and the Supreme Court's rulings.

International protection applications must be considered and decided by whoever decides on a quasi-judicial basis. I do not know why the Government voted this down in the Dáil but I urge the Minister to reconsider because it is a simple but important fix to make sure the Bill does not run the risk of undermining the independence that has been well established as a necessary cornerstone of a fair and impartial application system.

Mark Daly (Fianna Fail)
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Before I call the next speaker, I welcome Conor Welby and Claire Quan, guests of Senator Shane Curley. They are most welcome. We also have guests of Senator Ollie Crowe from Galway University - Lauren Ormond, who is a daughter of Councillor Peter Ormond from Offaly and Rachel Hoade Scully, a daughter of Councillor Mary Scully. I welcome Adam, Aidan, Darragh, Harry, Jack, Lauren and Rachel. They are all most welcome to Seanad Éireann. I thank them for being here for this debate. I am sure they are proceeding to the other Chamber very shortly.

Sharon Keogan (Independent)
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I rise to talk about amendments Nos. 21 and 22.

Mark Daly (Fianna Fail)
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No. I am sorry but they are out of order.

Sharon Keogan (Independent)
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The amendments I put up my hand to speak on are Nos. 21 and 22.

Mark Daly (Fianna Fail)
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They are out of order.

Sharon Keogan (Independent)
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They are the ones I put up my hand to speak on.

Mark Daly (Fianna Fail)
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I did not see the hand.

Sharon Keogan (Independent)
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I 100% had my hand up.

Mark Daly (Fianna Fail)
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The amendments are out of order.

Sharon Keogan (Independent)
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They are out of order.

Mark Daly (Fianna Fail)
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Yes.

Sharon Keogan (Independent)
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Why are they out of order? They are down to be discussed.

Mark Daly (Fianna Fail)
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They were negatived on Committee Stage.

Sharon Keogan (Independent)
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That is okay. No problem.

Alice-Mary Higgins (Independent)
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I want to make a very short acknowledgement first in relation to this amendment, which talks about those who are performing their functions, as conferred by the Minister. I acknowledge that the Minister has accepted one point that we put forward in relation to the requirement for those officers to identify themselves. That was a good decision. It would be a very worrying thing if we had two classes of immigration officers, with some required to identify themselves and others not, depending on which Act they were performing functions under. It is appropriate and I am glad the Minister has brought that through. It points, however, to the fact that there are a number of other very practical recommendations in relation to the functions of immigration officers, which we are not going to have an opportunity to properly tease out. I worry that that inadvertent consequence might not have been identified. I give credit to Robert Kitt, who is working with us, and others, who identified it, and to the Minister for engaging and putting it forward as a Report Stage amendment. There are a number of other issues which relate to the same point, where the Minister is giving functions to immigration officers, where I am worried about there being a potential for the same two-tier effect. One example of it is in relation to the functions on search. Under the immigration laws, the Minister may set out regulations on how a search is conducted. There are clear measures set out. For somebody who is in the immigration system, the Minister may give clear guidance on how a search may be conducted of a person and their possessions, whereas the equivalent set of regulations does not seem to be provided for in this legislation in relation to persons who are seeking international protection. That is very worrying.If we look at that very wide definition - we had hoped to amend it, but our amendment was ruled out of order - of the kinds of things that can be taken during searches, it could be letters, photographs or currency. Literally, money can be taken. We think of how intensely important photographs are in some cases for those fleeing situations of conflict and war. We think of the pure humanity of this. Maybe the only connection they have back to their family is photographs, but photographs can be taken. There is no provision in relation to this, or none that we can see. Maybe the Minister will correct me. I would be delighted to learn that there are plans in relation to searches which would, for example, set limits on what can be searched, ensure that there is a receipting function where possessions are taken and set a limit on how long these things can be taken for.

That would provide some degree of accountability in respect of immigration officers, who are being given significant powers, such that when they are conducting searches, they will be held to the same standards to which they would be held if they were conducting searches under the Immigration Act. It is the same as in the amendment that the Minister rightly accepted. The Immigration Act provides that immigration officers should have to identify themselves when performing functions. It also provides that those conducting searches be subject to regulations that the Minister may put in place.

I will not go any further. This is an example of why it is so regrettable that less than 90 seconds were allocated in respect of every amendment, including some of the very practical, small ideas on the performance of functions that were mentioned by Senator Cosgrove. There is no opportunity to pick them up. We may have to come back with a large number of fixes that are needed because we are rushing matters at this point or, rather, because the Government has chosen to rush them.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Senator Cosgrove for tabling the amendment and I thank those of her colleagues who co-signed it. Senator Cosgrove is correct in identifying that under the new scheme, international protection officers will not be independent in the performance of their functions. That is correct. There is a change in this legislation, and it is a change that is apparent when we look at the EU directives. The entity that is going to be determining applications at first instance is the Minister. I am the determining authority, and I will be responsible for issuing first-instance decisions. It is different from the provision that operated under section 74 of the 2015 Act. However, just because it is me does not mean that applications will not be considered on their merits and in an independent process. The measures under the directives and regulations do not require the independence of officers who will be performing the functions of the Minister. As a result, I cannot accept the amendment.

I thank Senators Higgins and Ruane for bringing forward the amendment that was discussed earlier, and which I have accepted. There was a divergence between two of the systems. However, I do not think the same applies in respect of searches of applicants. If Senator Higgins looks at section 32, she will see that very detailed provisions are set out in terms of how these searches are to be conducted and in what circumstances they may be permissible. Subsection (7) states:

A search of the applicant’s person ... shall be carried out by a person of the same sex as the applicant and in full respect for the human dignity of the applicant and the applicant’s physical and psychological integrity.

It also sets out that reasons must be given. There is a very detailed provision in section 32 as to how searches may be performed.

Alice-Mary Higgins (Independent)
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I move amendment No. 24:

In page 28, between lines 16 and 17, to insert the following:

“Report on compliance with European Convention on Human Rights

8. (1) Any order or regulation under this Act shall comply with the European Convention on Human Rights. (2) Within 12 months of the passing of this Act, and every two years thereafter, the Minister shall produce a report on the implementation of this Act regarding compatibility with the European Convention on Human Rights, and taking due account of relevant judgments, declarations, decisions and advisory opinions of the European Court of Human Rights.

(3) The report shall analyse the effects of this Act and include details as to whether the treatment of asylum seekers, international protection applicants and other immigrants is compliant with international law and the European Convention on Human Rights.

(4) The report shall be laid before both Houses of the Oireachtas.”.

Nessa Cosgrove (Labour)
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I second the amendment.

Mark Daly (Fianna Fail)
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Amendments Nos. 25, 26, 153, 162 and 193 are related and may be discussed together by agreement. Is that agreed? Agreed.

Chris Andrews (Sinn Fein)
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I move amendment No. 25:

In page 29, after line 30, to insert the following:

“Matters concerning minors

14. The best interests of the child shall be primary consideration in the application of this Act, and the Minister shall have due regard to this principle in respect of all matters concerning minors.”.

Lynn Ruane (Independent)
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I second the amendment.

Chris Andrews (Sinn Fein)
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I move amendment No. 26:

In page 31, between lines 32 and 33, to insert the following: “(14) The best interests of the child shall be a primary consideration in the carrying out of procedures in respect of a minor under this Part, in accordance with Article 14(1) of the Eurodac Regulation.”.

Alice-Mary Higgins (Independent)
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I second the amendment.

Chris Andrews (Sinn Fein)
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This amendment was spoken on briefly by one of my colleagues earlier. It seems reasonable to expect that the interests of the child shall be a primary consideration in the carrying out of procedures in respect of minors under this part in accordance with Article 14(1) of the Eurodac regulation. It is important that the rights of the child are protected. I am interested to know why the Government would not support this amendment.

Mark Daly (Fianna Fail)
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This should have been discussed with amendment No. 25. If the Minister wishes, I will allow him to respond.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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These issues have been taken on board. Section 116 expressly sets out that “The best interests of the child shall be a primary consideration in the carrying out of procedures in respect of a minor under this Part.” There are also other references to the best interests of the child being a primary consideration in the Bill.

Mark Daly (Fianna Fail)
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Amendments Nos. 27 and 28 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Alice-Mary Higgins (Independent)
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I move amendment No. 27:

In page 33, between lines 9 and 10, to insert the following: “(8) Facial image data maintained as part of a record of biometric data taken under this Chapter shall not be used as grounds for detention.”.

Lynn Ruane (Independent)
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I second the amendment.

Alice-Mary Higgins (Independent)
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The placement of these amendments is somewhat imperfect. This is another example of what happens when a guillotine is applied. We have amendments that try to address the same issue elsewhere in the legislation, but we believe they are of such crucial significance that it is important that they are addressed and discussed. I have said again and again that the fact of giving 1.2 minutes per amendment does not allow for best practice, and I believe it will lead to a number of flaws in the legislation. That is why we have had to seek to tackle the same issues in a couple of different ways. We should not have legislation that needs to be front-loaded because we assume that if we try to address a flaw at a later stage of the legislation, we will never get to discuss it.

This amendment relates to the question of how facial image data is being used. My colleague will speak to this as well. When we spoke on Committee Stage about the reports indicating issues and concerns on the huge number of false identifiers that we have seen where facial recognition is being used, and the fact that it has been shown to be far less accurate with different ethnic groups and different skin colours, the Minister suggested that those were almost teething problems, that they are improving and that the reports were five or ten years old. I read into the record the fact that we had heard from the UK that the data regulator there had concerns in this regard as recently as 2024.In 2024, we were hearing of extremely serious concerns about the impact that using that kind of technology could have in terms of reinforcing biases within a system, with those biases having very serious consequences for different people. Even the idea of how saying the reports from five or ten years ago show problems but the situation has improved points to the woeful experiment that was covered in the newspapers seems to be lost, in that immigration advice might be given through some kind of a chatbot. Technology that has been shown to be deeply flawed and is producing new problems all the time should not be allowed to test and improve itself on vulnerable persons. They should not be guinea pigs for an area that has consistently been highlighted as needing far better regulation and tighter restrictions on its use.

The reports from as recently as a few years ago and previously point to the fact that this should not be overused and overrelied on. We talked it through last time that if a person was wrongly identified, there did not seem to be a proper appeal mechanism for them to say they had been falsely identified by these algorithms. The Minister said that it would be relevant when a person's immigration application was considered. What access do people have to actually challenge the interpretation of that? It will simply be a matter of the facial recognition system suggesting who a person is while the person claims this is who they are. Where does the burden of proof sit? How will that be filtered out if we have a pattern of false identification issues?

Earlier, regarding the age assessment of minors, the Minister made the case for why we needed age assessment. What we have spoken to is the idea that how age assessment is being done is a very significant concern. We point to the fact that medical age assessment or, indeed, age assessment processes are being triggered simply by officials who feel that they would like to have it triggered rather than it being an absolute last resort, which is what the UN Convention on the Rights of the Child has said. Our fear is that it is simply becoming standard. I am concerned that this Eurodac system and its facial recognition software might be used on minors. Will the Minister clarify that there are safeguards to ensure that is not the case? I also fear that it might be used by the authorities to suggest that what they consider a match for a person was found on the Eurodac system and they determine a person's age on the basis of that.

I am very concerned about facial recognition being used in general, but particularly given its impacts in relation to certain ethnic groups - those with darker skin tones, who have been found to be disproportionately wrongly identified - and minors. I can come back to the Minister afterwards on these but they are core problems I see in what the Ombudsman for Children has identified as a new system, not the normal system where people were passing this first test, the one where people were effectively committing an offence or were being detained and forced to attend these screening centres. These screening centres may be relying on technology that reinforces biases and has very serious consequences, particularly for certain ethnic groups and minors. Will the Minister assure me that it will not be used as an argument in relation to the question of age assessment?

Mark Daly (Fianna Fail)
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I welcome guests of Senator Joe Flaherty from Longford GAA. They are Derek Fahy, Peter O'Reilly and Paul Rowley. They are here to brief Ministers about plans for a new national sports facility. Thanks for being in Seanad Éireann.

Lynn Ruane (Independent)
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Human rights concerns are constantly being raised about the use of facial recognition in any area, let alone in relation to international protection. We need to remember that other Bills also intersect with this. The digital omnibus regulation is on the way. This will completely debase not only the transparency, but also the datasets on which biometric analysis is used to train AI systems. Coming through an international protection or asylum process, a person is not really going to assert their rights to not have their biometric data or facial recognition data used for identification or profiling purposes. I hope not, but that is what will happen in terms of the level of data. The digital omnibus regulation creates wider exemptions in which biometric analysis can be used. Obviously, that is extremely concerning when we think of what Senator Higgins said about the high risk of the misidentification of black faces and also the dangers to children in terms of what happens to that data. The other legislation that this intersects with matters in terms of people's rights around their data and facial recognition technology.

The recording devices legislation is also en route. Regarding this, we have asked in the justice committee a number of times of An Garda Síochána how the Garda Síochána (Recording Devices) (Amendment) Bill is going to be used as regards facial recognition technology. In the last meeting of the committee, I provided several scenarios to An Garda Síochána and asked if they were what would constitute facial recognition technology in terms of biometric analysis. The Garda, which will have the role of implementing the Bill, cannot confirm how facial recognition technology will be used. There are human rights concerns at a larger scale about how facial recognition is used and how data is stored and used for the training of AI or for the profiling or surveillance of people across not only Ireland, but Europe as well. There is also a concern about how we understand facial recognition to work. If those in the Garda cannot say how recording devices, facial recognition and biometric analysis will be used under the Bill, how are immigration officers, who we do not know who they are, expected to use this legislation in respect of facial recognition technology?

I echo everything that Senator Higgins said. I know that the advocacy bodies have said that facial recognition for age verification should only be used as a last resort. I would suggest that it should not be used at all. If it is used, what happens when that child turns 18? Does the biometric data on the child continue to be stored or is it wiped?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Senators Higgins and Ruane for their amendment. I will start with the specific wording of it. It states, "Facial image data maintained as part of a record of biometric data taken under this Chapter shall not be used as grounds for detention." There is no basis upon which the maintenance of data would be used as a grounds for detention. I will set out the procedure under the Bill. Sections 14 and 15 deal with Eurodac. When somebody comes to Ireland and claims international protection, we tell them that they have to go to a screening centre and, in advance of that, we require to take from them biometric data. This means their fingerprints and facial image data. It is a reasonable requirement on the part of the State that, if somebody is coming in claiming international protection, we take biometric data via fingerprinting as well as facial image technology - photographs - so that we have an image of their face. The reason this is being done is so that it can be put into Eurodac. The reason this legislation is going through and is to be operationalised by 12 June is because Ireland and other European countries have agreed that it is preferable and advantageous to be able to harmonise their resources and rules when it comes to the assessment of asylum applications.It is completely relevant to Ireland in determining whether or not a person is entitled to asylum to know whether or not that person previously claimed asylum in another member state or, if they did not, whether there is data in that member state in respect of them. If their fingerprints indicate that a person who is applying for asylum in Ireland is the same person who applied in Austria previously and gave a different name, that is extremely important.

I note and hear the Senator's concern in respect of facial imaging data, but, in many respects, if we were having this discussion many years ago about fingerprints or DNA there would be concern about the accuracy of those two systems of identification. Facial imaging data is improving and increasing in terms of its quality and its ability to correctly identify people. Many of us use it for the purpose of getting on to our phones or for other provisions. It is an area where it is beneficial for the purpose of identification. We are talking about a different issue here from where people are going to be arrested or investigated because facial recognition technology has identified them as being involved in a criminal act or being at a previous location. This is different. There is a requirement to give the data, and the data is of benefit and of use to the State in identifying the person.

In terms of the specific amendment, the biometric data taken shall not be used as grounds for detention. However, as Members are aware, if somebody does not agree to give their biometric data and refuses to go to a screening centre, they can be detained for the purpose of making sure that is complied with. It is a reasonable request from the State to try to identify who is coming into the country. The alternative to it is that we just accept the identity that a person is giving and that is not a procedure that is going to result in a coherent asylum process.

Senator Higgins also raised the issue about the taking of biometric data from children. If Members look at section 15 (7),it says that biometric data from a minor can only be taken in the presence of an adult family member of the minor or, where the minor is an unaccompanied minor, a provisional representative or a representative person, or an employee of, or a person appointed by, the Child and Family Agency, and data will not be taken from a child under six years of age. A person who is taking the biometric data of a minor shall, before the taking of the biometric data, explain the procedure for the taking of the data to the minor, take the biometric data in a child-friendly and child-sensitive manner, and, at the time of taking the biometric data, have completed appropriate training in relation to the taking of biometric data from minors.

There are procedures clearly set out as to the circumstances when somebody over the age of six and under the age of 18 can have biometric data taken from them and how it should be performed. In terms of the data and the management of that data, that is set out in great detail in section 17 of the Bill in terms of the preservation and maintenance of the data.

Sharon Keogan (Independent)
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I have a point of order while the Minister is on his feet. If an applicant refuses to give their biometric data and the State detains them, how long can they be detained for and what happens to that applicant?

Alice-Mary Higgins (Independent)
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I will let the Minister answer that question in due course. It does point to another question. I have been referring to reports and they include reports from the National Institute of Standards and Technology in the United States, from the University of Essex in the UK and from data protection systems within the UK. The Minister talked about how the technology has been improving as it goes along, but this is the same key point I mentioned in terms of the testing on vulnerable persons or using them as guinea pigs.

On our specific amendments, the Bill as it is set out at the moment has quite wide powers in terms of detention and it does not refer to powers of detention unless an applicant co-operates with the screening centre. The Minister described that scenario. What it actually refers to is detention for the purposes of confirming somebody's identity or nationality. It does not refer to whether an applicant was willing to go a screening centre or to provide biometric data. Again, whether this is a necessary and proportionate test can also be questioned. It actually says for the purposes of confirming somebody's identity or nationality. The Bill provides for scenarios where somebody maybe co-operates and then gets told that the Eurodac system thinks they may be four people already in the system, or that it thinks it is a certain person, and they say they are not. It provides for the detention of that person and the kinds of pressure that come from being in a situation where someone is detained and cannot leave. They are potentially in a room or a screening centre and unable to leave it because there is a dispute about the messages coming from the Eurodac system. We could have a situation where people are detained after they have co-operated, given their biometric data and gone through the system. That could create pressure on people and intimidate them. It is not clear what the weighting of that biometric data is. The Minister says that we should be able to check the system, but what is the weighting given to the data that comes from the Eurodac system? I have spoken to the Minister about this before. He said that it will come up as an applicant goes through the immigration system as normal, but can it be challenged? Can someone appeal a decision? Is the data treated as the sole fact? What rights do people have to interrogate the mechanisms of how it is being assessed? Could we have situations where people are detained having given their information and gone through the Eurodac system because they do not agree with what it has said in relation to them?

In terms of the age assessment piece, the Minister described how the data is to be taken, and we know that the guardians with the 30 children they are meant to be minding will be there. I do not think someone can advocate for the child not do it. However, there is a concern because in the Bill age assessment is triggered by the concerns of an official. There are very broad grounds that can trigger an age assessment. One thing that we are concerned about is that is does not say that the biometric data will solely be just about checking matches with the Eurodac system. Is there a danger of that biometric data being used when officials are deciding what a 21-year-old looks like, or a 16-year-old, or an 18-year-old? The Minister may shake his head, but we do not know. This a new provision that has been brought in. It is a new system using new technologies and we are absolutely entitled to seek assurances as to the potential ways that it might be used. The fact that an age assessment may not just be used as a last resort, as was said, but can be triggered quite broadly under the Bill, I am concerned that biometric data could trigger an age assessment. Will the Minister clarify that as it would be useful? There is a sense that this is a bit of a black box in terms of what is going to happen with the Eurodac system. We all know that it is the compulsory thing that is going to happen to everybody who lands, but we do not know what exactly it will be checked against. Will it just be a list of individual names because one of the things it will check for is nationality? Will it just be around checking if an individual is in the Eurodac system? Will that be its sole purpose? Will it be used to check or assess anything else? What weighting will it be given, not just in the process, but previous to and around the process? Those are the questions that we legitimately have about what is a new system.

Maria Byrne (Fine Gael)
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Before I call the Minister, I welcome a group from UCD Social Democrats, who are guests of Deputy Gibney. They are very welcome. I hope they enjoy their visit.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I will start by answering Senator Keogan's question as to what happens if somebody does not agree to provide their biometric data. That is an offence and they can be brought before the District Court. Ultimately, it will probably be implicitly recognised as a withdrawal of their application. It is very reasonable on the part of the State to tell somebody who has come in to claim asylum that we want to take their fingerprints and photograph and that we want to know their identity. That is a perfectly reasonable request.

Sharon Keogan (Independent)
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If those people continue through the courts, are they removed from the country?

Maria Byrne (Fine Gael)
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We will hear the Minister without interruption.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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To deal with Senator Higgins's point, I should point out that, when I was answering in respect of the management of biometric data, I referred her to section 17. Section 17(2) provides very specific details as to how long the data can be retained. That is set out in that subsection.

The Senator spoke about what the data was used for. The reason people are put through the process of Eurodac screening is to establish their identities. That is the whole purpose of this. The Eurodac system contains the identities of very many people. Its purpose is to see if the identity of the person is consistent with the identity of the person on Eurodac. There are benefits to the person if they say they are Jim O'Callaghan and, when their fingerprints or facial data are entered into the Eurodac system, that system confirms they are in fact the person they allege themselves to be. It is also a matter of concern to the State if their identity is not consistent with who they say they are or if their nationality is not consistent with what they say it is. Central to the process of applying for asylum is the fact that people are fleeing persecution and war. Their nationality and where they are coming from are extremely important in determining the veracity and accuracy of such applications. That is why it is so important for the purposes of evidence to determine where the person is from and who the person is. It is central to the whole application for asylum. The inherent characteristics of the individual are, in many respects, essential to the strength or weakness of their application for asylum.

It is not an onerous obligation. It is for the purpose of establishing a person's identity. The person in question should honestly assert their identity, as the vast majority of asylum applicants do. If they do so and it can be identified that they previously applied for asylum elsewhere or that their narrative elsewhere was different from the narrative they are now providing, that is relevant for the purposes of the determining authority identifying whether their application merits granting or refusal.

Alice-Mary Higgins (Independent)
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I move amendment No. 28:

In page 33, between lines 9 and 10, to insert the following: “(8) Biometric data taken under this Chapter shall not be used as grounds to conduct an age assessment under section 55.”.

Lynn Ruane (Independent)
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I second the amendment.

Maria Byrne (Fine Gael)
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Amendment No. 29 has been ruled out of order, as it does not arise out of Committee Stage proceedings.

Maria Byrne (Fine Gael)
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Amendments Nos. 30, 33 and 58 are related and may be discussed together by agreement.

Alice-Mary Higgins (Independent)
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May I just check the status of amendment No. 29?

Maria Byrne (Fine Gael)
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It was ruled out of order. It does not arise out of Committee Stage proceedings.

Alice-Mary Higgins (Independent)
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I move amendment No. 30:

In page 35, to delete lines 14 to 18.

Eileen Flynn (Independent)
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I second the amendment.

Alice-Mary Higgins (Independent)
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This relates to the same section as amendment No. 29, which has been ruled out of order. When Committee Stage is guillotined and it is made impossible to speak to sections, including sections to which the Government proposed very large amendments at a late stage, we are told that, because these issues did not arise on Committee Stage, they cannot be raised on Report Stage. It again points to a really fundamental undermining of the democratic process when we curtail debate at a key point. I would also say that I did speak to this issue, the issue of healthcare professionals. I did speak about healthcare. It was something that I named. I did not get to speak to my amendments on it because we did not get to speak to approximately 200 amendments, but I did speak about the issue. That is what we have all had to do today. We have had to speak to fundamental issues. That is what Second Stage is for. We should not all have to try to speak to a series of fundamental issues as if we were on a Second Stage debate because we are being precluded from dealing with them in sequence and in proper order.

That was a really important amendment because the healthcare entitlement introduced in section 76 has a lot of gaps. Again, there are questions as to who would be performing the functions of healthcare professionals under this provision. A wide range of individuals are allowed for outside of registered doctors and nurses and there is a very worrying component within section 70 of the Bill, which explicitly excludes persons subject to a deportation order from healthcare entitlements. There is also no question of training in terms of the Department of Health. This is an example of the practicalities of how this works out for the individual human cases. Is a person who needs medication but has been told they are due to be deported to be without medication for the period of time they are waiting? What is the consequence of that for them? For the persons who will have key responsibilities in relation to those who have experienced rape, torture, violence and so on, there are no mechanisms for them to get expertise and training to identify issues.

To get back to what the Minister said and the simple question of an account being different, we know that, in the case of certain crimes and offences that people have experienced, it is a trauma response to give a different account at first, perhaps because they have come from an authoritarian state and are used to guarding and being protective of certain information. The information may then expand or change. They may be seeking to protect others at a given point of contact. You need a whole range of expertise to unpack and engage with the healthcare needs and application process of persons who have experienced significant violence and trauma in the past.

Again, we are not going to get to speak to any of that. There is also the issue of transfers at short notice. We have had examples of heart attacks and pregnant women being moved in their third trimester. We may not come to amendment No. 105, which relates to treatment during transfers or deportation.

Moving on to amendment No. 30, the amendment deletes the subsection that allows a civil servant, immigration officer or garda to issue a direction. The Minister said the international protection office would be getting this information. This is where we are trying to put in a requirement that those who are told they must attend would be informed of that in a language they can reasonably be expected to understand. The Minister correctly pointed out that appropriate language expertise is available at the International Protection Office. Our concern is that the Bill allows for quite a lot of people to give that direction.It does not specify that that direction would be adhered to in the International Protection Office or under the remit of a support structure where language, etc., would be catered for. It allows for civil servants, immigration officers or gardaí to give the direction in a number of situations. Specifically, and this is something that does not fit the narrative we have been given, it relates to a lawfully resident person who is already registered under the Immigration Act. When someone arrives, it is reasonable that we would ask them to go to the screening centre, as we have heard, but the Bill allows for a person already lawfully resident under the Immigration Act, or someone not entering the application process for international protection, to be directed to go to a centre. Those who may be lawfully resident here on, say, a working visa, student visa or another permit, and who may be on their route to citizenship, can be directed to travel to a screening centre also.

The Government has suggested it is only about international protection, but the fact that other kinds of people are included is concerning. This is the kind of thing we have seen in the United States in the form of fishing expeditions, whereby whole groups of people are checked for identity and nationality, even though they have already been through the protection system or another part of the immigration system and are lawfully resident. That is the kind of thing that creates fear and allows for profiling. It allows for a situation whereby immigration officers, potentially private or contracted, can detain anybody who is not an Irish citizen in a screening centre while being checked. What a tool of intimidation that is. We see it in the United States. Parks where families would always have gone on picnics or had birthday parties are now kind of empty at the weekends because people are afraid. People become afraid to be out and, even though lawfully resident, to participate in public life. They feel vulnerable to being snatched or subjected to a process such as that in a screening centre.

Crucially, the grounds are not the public interest. We have heard about balancing things in the public interest, but the grounds on which a legally resident person who is not necessarily an asylum applicant can be detained and required to go to a screening centre, under threat of an offence, are in the interest of public policy; however, public policy is not the same as the public interest. In respect of many laws, we talk about the public interest, where it may apply and where there is precedent. The courts determine it and balance many factors when deciding on it. Public policy is saying, "We want to". It can literally involve the Cabinet saying it has decided something is its new policy. It can change from not liking liquified natural gas to liking it as a matter of public policy. The President in the United States can say he is really worried about Somali people, does not like them and will be very prejudiced against them, effectively wanting them to be taken in and given a hard time.

Public policy can literally be anything. It is a vague, wide-ranging term. It is not law that a government proposes and puts to the test of the Oireachtas, or fast-tracks in the Oireachtas, as in this case, nor is it the public interest, which involves precedent, balance and the courts. Rather, it is potentially the whim of any Minister for justice, although maybe not the current one. A Minister may say a new policy is this or that. These are the grounds on which people can be forced to go to a screening centre.

Section 193 relates to the grounds on which the Minister may decide not to permit family reunification and section 196 relates to the grounds on which the Minister may decide not to issue a travel document. Section 206 relates to the power to disregard an exemption a person may have to being deported, and section 180 to not allowing the submission of evidence to an appeals tribunal. The Minister can decide, on public policy grounds, not to allow family reunification. This is where we find the danger we heard about earlier, related to the idea of chasing the right. If a poll states an extreme right-wing candidate is running in a by-election, does one chase that? Do we come up with and apply a few new, quick, hard public policies that look tough, have them impact on people's lives and say we are changing family reunification, as we see the Bill is doing? Do we have grounds not to issue travel documents and to disregard deportation exemptions? This is an area that really brings the ECHR into question. Section 180 alludes to not allowing the submission of evidence to an appeals tribunal. We can decide the legal safeguard of an appeals tribunal is not in accordance with public policy. Where a lawfully resident individual who is not an applicant for asylum is asked to go to a screening centre and told he or she has been found against because he or she is on Eurodac, can the Minister decline, on public policy grounds, information on how that Eurodac decision or information or opinion was arrived at? What would be the position on consideration by an appeals tribunal? What kind of information does the Minister plan not to allow as evidence by our courts system or an appeals tribunal within the immigration system? These are very discretionary powers and they do not have a clear definition. Public policy can mean anything and this is a serious problem.

Amendment No. 33 is the one I have already spoken about. It relates to a matter we discussed previously, namely, the need to inform a person in danger of committing an offence if they do not go to a screening centre in a language they can understand. The Minister made the point that they would get that if they were being told at the International Protection Office, but I make the point that the Bill allows for them to be told by a large number of individuals, not necessarily at an international protection office.

Maria Byrne (Fine Gael)
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I welcome to the Gallery Senator Mike Kennelly. He is accompanied by the Fine Gael councillors from Kerry: Councillors Bobby O'Connell, Tommy Griffin, Teddy O’Sullivan Casey, Mike Foley, and Aoife Kennelly. They are all very welcome. I hope they enjoy their visit to Leinster House, especially the Seanad.

Lynn Ruane (Independent)
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I will be very brief and will not go over all the same ground that Senator Alice-Mary Higgins did. However, I want to make a point on deportation and the training on and understanding of health. Even without this legislation, currently in Ireland if you receive a deportation order, you will have your access to healthcare, including medication, immediately revoked. A person could be on cancer medication, antipsychotic medication or diabetes medication. When a person goes through the asylum process and receives a deportation order, there is a period of time between receiving it and being deported. At the start of that period, a person's access to healthcare immediately stops. The individual is not allowed to continue with their healthcare, which could be very dangerous for them and, depending on the type of medication, others within their family or surrounding area. There is also a gap in understanding. When in the asylum process, you may not have the right to work but can access healthcare through certain channels. That entitlement is effectively being removed. Within this legislation, we need not only to correct that but also to ensure that if people are on particular medications or in receipt of particular healthcare interventions while in Ireland, these will continue, and that if they are deported on being refused asylum, they will be entitled to their medication until they are re-established.There is a real gap here in terms of treating people with dignity and respect and from a human rights lens, especially in relation to a person's health status.

Eileen Flynn (Independent)
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I will follow on from Senators Ruane and Higgins. This is all related. I am not going to get time to come back in because the debate has to finish by 6 p.m. The Civil Engagement Group's amendments are based on human rights and dignity. The Minister said it was as if Senator Higgins thought there was a movement or campaign to torture refugees. Maybe he used another term but it was something like that. I do not believe that to be the case. For us, the members of the Civil Engagement Group, this is about human rights and equality. Nobody on the street can search me or the Minister. Only a garda can do that. Why is it acceptable for people working in direct provision centres to search another human being? The Minister has not even dealt with that part of the Bill. That takes away a person's dignity, no matter what. With this Bill, today is a sad day for human rights and equality in this country. I say, from the bottom of my heart, that this is a Bill to be ashamed of.

The Minister put words into the mouths of Members of the Opposition earlier and I have to address it. It is part of the amendment. He said we might as well get rid of the borders. We are not crazy and we do not think we should not have legislation on refugees. What we are looking for is basic human rights and equality. The Department is not providing that. I apologise as I do not want to attack the Minister personally; he is doing his job.

The Department of justice is letting down thousands of children in direct provision. Maybe it was because I was born and reared on a halting site but I know exactly what it is like to be that child put on the side of the road and told, "You are not welcome here". I was that child who was put out of places and did not get the same facilities as children from civil society. We will finish talking about this legislation in the next five or ten minutes. This Bill is regrettable. When it comes to human rights and equality, this is probably one of the worst days I have been in here. If the Minister for justice can defend this Bill and say he is giving people more human rights and equality, shame on the Department of justice. That is all I will say.

Patricia Stephenson (Social Democrats)
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Hear, hear.

Eileen Flynn (Independent)
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We are not a crazy bunch that does not want protection for refugees. What we want is to have refugees, when they are here, treated with dignity and respect, not have somebody in a hotel or direct provision centre search another human being. Would the Minister let someone in the Department of justice search him every day when he comes in to do his job? No, he would not. It is not acceptable. Why does he think it is acceptable that people working in direct provision centres can search others? This is a nasty day for human rights and equality in this country if we are going to treat children who ran from fear like this. I have no words. I am going to sit down. This is absolutely scandalous legislation which the Government should be ashamed of. Some day, 30 years down the line, when Billy and Lacy are into politics, they will be looking for a State apology for the people we treated like this. Talk about a scandal.

Maria McCormack (Sinn Fein)
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I will speak to amendment No. 58. I am conscious that we might not get any further but I will be happy if the Minister accepts this important amendment. It states:

In page 44, between lines 9 and 10, to insert the following: “(k) information provided by the applicant regarding any prior immigration permission held in the State, including, where applicable, whether the applicant previously entered or resided in the State on—

(i) a student permission,

(ii) an employment permit [visa] or other work related permission,

(iii) a short stay or long stay [visa] ...

This came about as a result of a reply to a parliamentary question on student visas asked by Matt Carthy. The reply revealed that the Department does not collate any data on the number of people who initially came in on stamp 2 visas and subsequently make an application for international protection. The figures for Britain suggest that approximately 3.5% of those who come in on student visas make an application for international protection. If a similar percentage applied here, that would account for 2,000 applications a year. This amendment simply requires that the State record whether an applicant previously held any immigration permission. That information is essential for managing migration properly.

Understanding prior student work, visit or family-based permissions helps identify patterns, prevents the system's abuse and ensures fair, efficient decision-making grounded in accurate data. This is what the Minister said he is trying to ensure. I am hoping he will reconsider and accept this amendment. If we are going to do this, we need to try to do it right. Just because it is an Opposition amendment does not mean it cannot be accepted. This would only be of benefit, as would be many of the other amendments. I am conscious that we are getting close to time for the guillotine. I ask the Minister to accept amendment No. 58.

Sharon Keogan (Independent)
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I take exceptional opposition to Senator Flynn's outrage. I get that we are all very upset about this Bill and that Senators are very upset about the humanitarian aspects of this Bill. There are many issues I would not be happy with.

Maria Byrne (Fine Gael)
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Senator, please discuss the amendment.

Sharon Keogan (Independent)
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However, the Minister has engaged with this Bill since 2020. He has engaged on Committee Stage in the justice committee. He has engaged with us all, as did the previous Minister. Did I want us to opt in to this Bill? Absolutely not. However, the Minister has been extremely fair. It is a massive Bill, which I will be voting against. What we heard was very personal and targeted and it was unnecessary.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Senators for their contributions. I thank Senators Higgins, Ruane and Flynn for amendment No. 30. I thank Senator McCormack for amendment No. 58. I will deal specifically with amendment No. 30 in the first instance. The purpose of that amendment is to delete section 22(5). Subsection (5) permits gardaí to direct a person, who otherwise is excluded, to attend at a screening centre if the garda, immigration officer or an officer of mine believes it is in the interest of public policy or national security.

I will correct a misunderstanding that I think Senator Higgins has in respect of section 22. I commend Senator Higgins on her knowledge of what is very detailed and complicated legislation. In her submission, Senator Higgins suggested that this could apply to somebody who is not an asylum applicant and that a person who could be in the country on a student visa or some other type of visa could be directed by a garda or an immigration officer to go to a screening centre. That cannot happen. The only way it can happen is if a person who is here, say, on a valid student visa, decides they are going to make an application for asylum. It only applies to an asylum applicant. If somebody has been here already on a student visa, in general, her or she does not have to go to a screening centre. In general, such persons do not have to give their biometric data. However, if it is the case that the officer or garda believes it is in the interest of public policy or national security that that person go to the screening centre, they can issue a direction. It is a very limited provision that operates in subsection (5). It is appropriate that if a garda or an immigration officer believes that it is necessary, on grounds of public policy or national security, for a person to go to a screening centre, that person should do so. The person is an applicant for international protection.

An issue raised by Senator Ruane was in respect of the healthcare provided to international protection applicants. As the Senator will know from section 79, detailed provision is set out in respect of the nature of the healthcare that should be provided to an applicant.It sets out that the Minister for Health shall ensure that an applicant for international protection has access to such healthcare as is necessary. It is set out in considerable detail over approximately two pages.

Senator Ruane raised the point about somebody who goes through the process, fails in their application, is sent a deportation order and does not comply with it and who is sick and whose healthcare comes to a stop. The Irish health system is very sympathetic and empathetic if a person - and I have not encountered this - is in a seriously ill condition. The empathy and sympathy of the health service would come into play in respect of such cases. However, I cannot put into a statutory regime an entitlement for a person who has been served with a deportation order to receive healthcare and-or to receive any other social services to which they are not entitled.

That brings me on to the point raised by Senator Flynn. The Senator criticised the Bill. The Department of justice is not responsible for the Bill. I am responsible for it. In fairness to the officials in the Department, they are just carrying out the political objective of the Minister. This is a Government Bill; it is my Bill. If I instructed the officials to produce a Bill which is extraordinarily restrictive, they would do so. If I instructed them to prepare a Bill which is extraordinarily liberal, they would also do so.

In respect of what Senator Flynn said, everyone comes to the topic of asylum and international protection from their own political perspective. I do so, as does everyone else in this House does as well. It is, however, a complicated and complex issue, particularly at this time we are living in at the beginning of the 21st century. As I have said before, it is very much a defining issue for the first part of the 21st century. It is an issue that, particularly in Ireland, we are grappling with as to how we deal with it. The displacement of people is an extraordinary global issue.

I have to sought to ensure that I take into account, pay respect to and seek to defend the human rights of applicants who are coming here and claiming asylum. That is part of my responsibility. People here are perfectly entitled just to focus on that side of the balancing act. However, as Minister, I also have to take into account the other side of the balancing act. This is not an issue about trying to balance different political views. It is about the impact that significant processing of applications can have on the receiving state. We have seen the impact it has had in Ireland in terms of the pressure to which it gives rise in the context of providing accommodation centres and in terms of the number of applications being processed. It takes a very lengthy period to process applications. That can be unfair to people who can be stuck in Ireland for years while trying to have their applications resolved. I recognise that it can be very unfair on somebody who has been here for years while their application and appeal are being processed and who is then told to leave.

I have tried to balance those two different factors. It is difficult. I have no doubt that I probably have not got the balance right. People on one side of the House will say that I have gone too much in one direction, while those on the other side will say that I have gone too much in the other direction. It is a difficult balancing act, but it is important that there is a balancing act. I cannot just say, "Listen, my objective here is to vindicate and protect the human rights of applicants who come in and that is the sole focus I will have." I cannot do that. There would be no point in having an asylum process in such circumstances because in the context of anyone who comes in and says that they are an asylum applicant, the necessary consequence is that they are entitled to stay. I cannot do that. Similarly, I cannot have a system, which is the case in some European countries, where they simply do not process applications. People just do not go to certain countries because they know that if they do, they will not be able to get their asylum applications processed.

Ireland is probably renowned as being one of the fairer countries in terms of processing asylum applications. It is going to get even more fair after 12 June when this legislation comes into effect. What will happen is that applications will be processed in a much speedier fashion. That has to be to the benefit of everyone. I do not believe that the quality of assessment will decline because of the speed imposed upon it. The Department is already doing a pilot project in respect of it.

People need to know that if they are coming to Ireland and they are claiming asylum that they will have their applications dealt with and adjudicated promptly and fairly. If someone comes to Ireland to claim asylum and is not entitled to it, however, he or she will not get it. We need to be fair and inform people that if they put forward stories that are not accurate and they are not fleeing persecution or war, they will not be allowed to stay in Ireland. If, however, someone is fleeing persecution or war, his or her asylum application will be granted and he or she will be able to stay. We are very generous in respect of this.

The amendment tabled by Senator McCormack gives an indication of the different sides of the political perspective on this issue. The Senator's amendment states that there should be a requirement for applicants to provide information as to whether they previously entered or resided in the State on a student permission or employment permit. We will have that information. If somebody gives their correct identity, we will know whether they have been in the State previously by way of a student permission, an employment permit or a short-stay tourist visa. The Department has a lot of information in respect of these issues. Data is extremely important in respect of dealing with this matter. It is not set down to give people an opportunity to close it.

Lynn Ruane (Independent)
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On a point of information, I wish to correct the record. I will not come back on everything the Minister has said. When I referred to deportations, it was not in the context of people who were not complying with deportation orders. I was referring to cases where the deportation may be scheduled for some date in the future. The justice committee heard evidence from healthcare providers about people arriving into pharmacies, etc., to receive to their medication. It is not that they have not complied; it is that there some people's access to medication has been stopped abruptly. I do not think that is the intention of the State; it is just a gap.

Alice-Mary Higgins (Independent)
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That is an example of the public interest - the Minister did not get to come in on the phrasing in that regard - and public policy being used in that regard. In many cases, it would be in the public interest for persons who are relying on medication to be able to receive it until the point where they leave State, regardless of whether they are entitled to it. It is not a privilege. However, in cases relating to the public interest, it is the interests of the public, our health system and those who may be affected if persons who need medication have it while they are in the State. There is an argument in that regard. That would be if we are applying a public interest frame versus a public policy frame.

We will see how this unfolds. The way it is worded gives rise to some ambiguity. However, I accept the Minister's comments to the effect that he believes that it is only to be applied in the case of those who are applicants. Of course,the question that arises relates to how it is worded in the context of confirming identity and nationality. Is it also to confirm if someone is an applicant? One of the phrases used in this regard relates to someone being deemed to be an applicant. I say this in the context that we are seeing some extraordinary shifts taking place with regard to things that were seen as basic powers. There are powers being granted that we are not going to have the opportunity to discuss. For example, immigration officers and gardaí are being given the power to enter homes and premise without warrants. I have been in the Oireachtas for three terms. Any time the idea of entering a building or a dwelling without a warrant came up, it became something of a constitutional issue. Yet, we are seeing very wide powers being granted that will allow people to enter a premises if they have reasonable cause to suspect that a person who is the subject of a deportation order may be present. Are people going to be accused of sheltering persons in their attics or garages? Any time the idea of entering buildings without warrants has come up previously, it has been the subject of very in-depth debate. This is an example of a significant provision that will be the subject of almost no debate.

The Minister stated that migration is one of the defining issues of the 21st century. International displacement is one of those issues. The fact is that we are going to see an increasing number of wars and military actions and more conflict than ever before. Very large areas of the world are becoming physically uninhabitable as a result of the acceleration of climate change. The crisis lies in conflict and in the failure to take meaningful action in respect of conflict.It is, there is a leaning into it with a rush towards a new arms race that everybody wants in on. There is a failure to deliver on climate because it has dropped to the bottom of the political agenda. The natural outcome, if you make the world unlivable, if you lean into conflict and if you allow military actions, illegal occupations and a sense that might is right, will be displacement, yet that consequence is what is being framed as a crisis. It is a moment, but it is a moment at the beginning of the 21st century. It is a crisis of conscience. The question will be whether we learned the lessons from the 20th century when we moved away from colonialism and put in place human rights instruments, learning about the idea of all human rights? Are we going to forget what we learned in the 20th century and fail to address the challenges of the 21st century, which are the climate crisis, conflict and the undermining of international law, and are we going to instead try to suggest that this small group of approximately 1 million in total in Europe is the problem? It is that some of those impacted have reached our shores in Europe is what is being framed as a crisis. It is our crisis. It is a crisis of conscience that we need to be stepping up to.

Maria Byrne (Fine Gael)
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As it is now 6 p.m., I am required to put the following question in accordance with the order of the Seanad of this day: "That amendment No. 30 is hereby negatived, the Government amendments undisposed of, including those in respect of which the Bill has been recommitted, are hereby made to the Bill, Fourth Stage is hereby completed, the Bill, as amended, is hereby received for final consideration and the Bill is hereby passed." Is that agreed?

Victor Boyhan (Independent)
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Not agreed.