Dáil Éireann debate -
Tuesday, 4 May 1993

Vol. 430 No. 2

Private Members' Business. - Refugee Protection Bill, 1993: Second Stage.

Mr. Shatter

I move:

"That the Bill be now read a Second Time."

Article 14 of the Universal Declaration of Human Rights of 10 December, 1948 states that "everyone has a right to seek and enjoy in other countries asylum from persecution". This State is a party to that Convention.

The United Nations Convention relating to the status of refugees completed in Geneva on 25 July 1951 and the Protocol to that Convention completed in New York on 31 January 1967 detail the specific procedures to be applied by the signatories to that Convention to applications for political to applicants. protections to be afforded to applocants. This State became a signatory to the Geneva Convention on 29 November 1956 and to the Protocol on 6 November 1968.

Despite our international obligations and our accession to the Protocol and Convention we have at no stage enacted legislation to reflect their provisions in our domestic statute law. The basic legislation that applies to non-national seeking to enter this State, who are not citizens of any other European Community member state, is contained in the Aliens Act, 1935 and in a labyrinthine series of statutory instruments made under that Act since it came into force. A substantial number of these have over the years been repealed or rendered irrelevant. From my own research, however, there appear to be in the region of 20 statutory instruments still in force addressing a variety of issues that fall under the regime of the 1935 Act. The 1935 Act pre-dated both the United Nations Declaration of Human Rights and the Geneva Convention.

During the past decade substantial concern has been expressed about the manner in which we in this State treat the small number of persons who arrive at points of entry to the State and claim political asylum. In Shannon Airport, in particular, prior to the major political changes which have seen a series of independent states emerging from the ashes of the former Soviet Union, there were numerous reports of passengers on Aeroflot planes seeking asylum and finding themselves bundled back on board planes without any opportunity fully and properly to present their case to be allowed to remain in Ireland. It seemed at the time that this State was more concerned with ensuring use by Aeroflot of Shannon Airport and the economic benefits derived from that than with protecting the individual human rights of the small number of individuals who sought to stay here to escape from a politically oppressive regime.

Agitation in the early eighties for greater protection for asylum seekers resulted in the then Fine Gael-Labour Coalition Government having discussions with the representative of the United Nations High Commission on Refugees then based in London and by a letter of 15 December 1985 agreeing by way of administrative procedure to incorporate within our practices procedures for the determination of refugee status and asylum applications in Ireland which were designed to reflect our international obligations under the Geneva Convention.

The United Nations High Commission was anxious at the time to see legislation enacted in Ireland but the view of the then Government was that the very limited number of asylum applications received in this country did not warrant legislative action incorporating the relevant procedures, as the commissioner had proposed in a letter on 24 April 1985. Nevertheless, the steps taken by the then Government were a major advance on the position up to then. It confirmed in writing certain basic guidelines that it was intended would be followed which sought to ensure that most of our obligations under the Convention were complied with.

It is now over seven years since these procedures were agreed with the United Nations Irish Commission on Refugees. It is the unanimous view of those who have worked to assist persons who have sought refugee status and political asylum in this country that the current situation is unsatisfactory and that there is a need for legislation which would fully implement in domestic law our international obligations under the Geneva Convention and which would not only incorporate the procedures agreed by the Government in December 1985 but which would also fill a number of the gaps left by these procedures. A number of examples could be given of how, in practice, we have failed to comply with our international legal obligations and of the need for more stringent statutory provisions to protect the civil and human rights of those who seek asylum here.

In October 1990 a young Chinese student who had joined the huge demonstration for democracy in China arrived in Ireland having escaped arrest, having been accused of treason and having been tortured. Instead of being treated humanely when he arrived in this State seeking political asylum, he was immediately detained and spent seven months in Mountjoy Prison. He was finally released from prison on 20 May 1991 by order of the High Court. Subsequent to his release the Minister for Justice determined that he did not qualify for recognition as a refugee and we have been given no public explanation about this decision. Only yesterday, 3 May 1993, he was forced to bring an application before the High Court challenging the decision made by the Minister. That case is now before the House Court for determination.

In November 1990, on a Friday, four Sri Lankans arrived and sought political asylum. By the following Tuesday they had been deported. On the same day two more Sri Lankans arrived only to be deported two days later, despite the civil difficulties and the political unrest in their country. Within one week the Department of Justice had returned them to India without taking any action to ensure that they would not be sent to Sri Lanka from India or to ensure their continued safety would be guaranteed.

Last summer, at a time when we agreed to admit to this country a number of Bosnian refugees — a relatively small number compared to the number admitted in other European Community member states — a lone refugee from Yugoslavia who was not part of the main group arrived unannounced and sought political asylum. Before any reasonable consideration had been given to his application he was bundled back on a plane and flown to Paris. Subsequently, the Government had to agree to his return to Ireland and to his being given permission to remain here when the full details of his story became known.

Last November there were extraordinary scenes in Shannon Airport when a large number of Kurdish refugees were physically forced back on a plane flying to Canada. Access to them by individuals concerned about their plight who wished to ensure they had access to legal help was denied by officials at Shannon Airport and they were forced out of the country before their position could be independently clarified. I can tell the House that on the evening in question I made a number of telephone calls to Shannon Airport to try to ascertain the position and I was finally allowed to talk to someone in authority after the plane had taken off from the airport.

The unsatisfactory manner in which we have dealt with applications for political asylum during the past five years has given rise to a series of court cases which would not have arisen if the individuals concerned had felt that they had been given a proper opportunity clearly and fairly to state their case and to have their applications determined. Although the courts have stated in recent cases that the procedures the State agreed to with the United Nations High Commission on Refugees in 1985 will be regarded as enforceable against the State, it is clear that some of those who come here seeking political asylum are not informed of the procedures and they are not applied in their cases. Indeed, few have any real opportunity to seek to vindicate their rights before the courts when those rights are not respected. Those who seek asylum should not be required to go to court to avail of the protections which this State is already obliged to extend to them under international law.

It is also clear that in a number of respects present procedures even when properly applied are inadequate. For example, decisions are made in secret and no written details are published about the manner in which the Convention principles are applied in individual cases. There is no reason such information could not be made available while preserving the anonymity of the individual where necessary either for his protection or the protection of members of his family if they remain living within the country from which that person has sought to flee.

No details are published of the country of origin of persons who are either granted asylum or who have had their applications for asylum turned down and there is no independent right of appeal. These and a number of other defects are addressed in the Bill I have brought before the House.

It is true to say also there is obsessive secrecy within the Department of Justice which applies to all its dealings in this area. Political responsibility for the manner in which the Department of Justice deals with applications rests with the Minister of the day. It is not the officials who are to blame for the inadequacies of the procedures but the Minister, who has political responsibility for ensuring that matters are properly dealt with. An example of the obsessive secrecy that applies and the belief that no information should be made available to the public is again reflected in a parliamentary question which I put to the Minister today and to which I received a written reply. This simple straightforward question did not in any particular respect endanger our national security. This is how I put my question:

To ask the Minister for Justice the current status of the families residing in this State who came from Bosnia in 1992; whether any of them have applied for refugee status and political asylum; and whether, if such applications are made, political asylum will be granted.

I understand there are in the region of 170 people approximately who are members of families that came from Bosnia. I do not think my question puts their lives at risk. It is not such a matter of great secrecy that a Member of this House should not be told that none of them has sought asylum, all have sought asylum, or should they seek asylum they will be granted it. What reply did I get from the Department? The reply states:

Persons from the former Yugoslavia admitted to the State in accordance with the Government decision of last year were granted temporary protection status with the full righs of refugees.

Temporary protection status is not a concept I fully understand but it is a concept manufactured to provide for the situation. If it protects the rights of those who come from Bosnia and gives them protection, I have no quibble with it but I do not know from the reply whether any of those persons want to remain here permanently as opposed to temporarily. The reply further states:

Every application for refugee status or political asylum is considered on an individual basis in accordance with the procedures in this area agreed in 1985 with the United Nations High Commissioner for Refugees. It is not the practice in accordance with the spirit of those agreed procedures to disclose publicly whether or not identifiable persons have applied for political asylum.

There is nothing in the United Nations High Commission procedures, as agreed, that runs counter to providing basic information in the context of a known group of people who have been given temporary sanctuary in Ireland as to whether some of them have sought political asylum. Presumably, the political situation they came from is well known to all of us. I think we are entitled to a more detailed reply; we are entitled to know if any of those families have sought to reside here permanently and sought political asylum. On the basis they are coming from the same political background, of ethnic and violent friction which puts their lives sufficiently at risk to bring them to Ireland one does not need a great deal of imagination to draw a conclusion that all those people properly fall within the status of political refugees who are entitled to political asylum if they seek it. It should not be a matter of secrecy.

The number of people who seek asylum in this State annually is not large compared to the numbers who seek asylum in most other member states. In fact, it is extremely small. In 1988 there were 49 applicants; in 1989 36; in 1990 62; in 1991 31 and in 1992 38. In 1988 two applications for political asylum were granted and in the years 1989-92 one application was granted. A small number of applicants, as far as I am aware, although not granted political asylum have been allowed to remain in the State but the majority of those who sought political asylum were, I understand, required to leave. We do not know the criteria applied in determining whether any of their cases were valid. We do not know from which country most of these people come or why it was determined that they did not quality for political asylum.

On 23 March 1993 there were 53 applicants awaiting decision and this number included 20 applications received in 1993. One could speculate that those 20 may include some of the Bosnian refugees who came here to escape from the conflict in their country, but I do not know. It should not be a secret if it does include those families. Although the number who seek political asylum in Ireland is small, we have under the Geneva Convention an international obligation to respect the human dignity of each such applicant and to ensure that not only is each applicant's legal rights protected but they are each treated in a humanitarian way and with respect. At present the fate of the asylum seeker is very much in the hands of the individual official with whom he or she first comes in contact at the point of entry and the manner in which each applicant is treated is not open to public scrutiny. There is a growing and widespread concern that many of those who seek political asylum in this State are not properly treated, their rights are not respected, and the spirit of the Geneva Convention is not applied.

In Amnesty International's report of 7 November 1991 entitled "Europe: Human Rights and the Need for a Fair Asylum Policy", in reviewing the practices and procedures and the laws enforced in a variety of EC member states it states in regard to Ireland:

Amnesty International believes that the asylum proceedings in Ireland are entirely inadequate to identify all those in need of protection. The fact that in practice few asylum seekers actually seek protection in Ireland, compared with the numbers seeking asylum in other EC member States, does not diminish the need for deficiencies in the asylum procedures to be addressed without delay.

Amnesty, the Irish Refugee Council, the Irish Commission for Justice and Peace, have all clearly stated the need to ensure that all necessary protections are afforded to those who claim political asylum in this State. Last summer, Amnesty and Young Fine Gael joined together in a campaign to reform our laws and procedures and Fine Gael in its election programme for Government committed my party to introducing the legislation that is now before this House. The public's unease at the manner in which we deal with asylum applications is also reflected in the Fianna Fáil and Labour Programme for Government, 1993-1997, which states:

Our policy towards treatment of refugees, asylum seekers and immigrants will meet the highest international standards. Procedures will be introduced to guarantee rights of hearings, appeal, access to legal advice and access to the Courts.

During Question Time on 17 February 1993, I sought to explore what was intended by this passage in the programme. I was concerned that it was simply a cosmetic gesture in the direction of those concerned about this area and that there was no substantive new measures intended by the present Coalition Government. Moreover, it was clear that this provision in the programme was couched in terms which ensured that matters relating to asylum would continue to be dealt with by ministerial diktat emerging from the Department of Justice and that there was no commitment of any nature to the introduction of the reforming legislation that is so badly needed. The Minister's reply illustrated clearly that the Government parties had no real substantive proposals that they intended taking arising out of what is stated in the programme and no real thought had been given by them to the measures it might take. In response to my question asking the Minister "the new procedures, if any, she proposes introducing to guarantee rights of hearing, appeal, access to legal advice and access to the courts for refugees and asylum seekers", she simply responded by stating that she would be taking whatever action may be appropriate in order to meet these commitments. The rest of the reply confined itself to detailing the 1985 arrangements previously mentioned. I regret that it is the junior Minister in the Department of Justice who has been sent into the House again this evening. The Minister is absent again.

Miss Harney

The Minister of State at the Department of Justice has taken every Bill in the House.

Mr. Shatter

The Minister is again absent for an important debate on legislation. The form in this Government seems to be that the senior Minister stands in front of the camera for photo opportunities and appears on RTE news bulletins when she feels there is a need for personal publicity. The junior Minister is sent into the House to do the legislative work and on occasions to do the dirty work on the Minister's behalf which she feels may not go down well.

Mr. M. McDowell

She never responds to a debate or allows herself to be interrupted in this House. This is a shame.

Mr. Shatter

The fact that the Minister is not here to reply to this debate is indicative of the seriousness with which she treats the commitment given in the Programme for Government. Her absence is regrettable. Subsequent to the Minister's reply, Fine Gael published this Bill on 18 March last. It is the result of substantial work undertaken in Fine Gael and of extensive consultation with many of those who work in this area.

We deliberately delayed processing the Bill through the House for a period of almost two months following its publication so as to afford time to Government to consider its detailed provisions in the hope that Second Stage could be agreed without contention. I am pleased to note, despite the fact that there is no member of the Labour Party present for the debate, that in the intervening period at the Labour Party Conference a motion was unanimously passed in the name of the Rathfarnham Dublin-South branch of the Labour Party — Rathfarnham is part of the constituency which I represent — stating:

Conference calls on the Government to protect refugees in Ireland by legislating to incorporate into Irish law the 1951 Geneva Convention and its 1968 Protocol, including specifically such safeguards as access to legal advice, access to interpretation, the right to substantive appeal and the establishment of an independent and expert body to consider each case.

This Bill provides the legislative vehicle whereby the Labour Party in Government can implement the wishes of conference as expressed four weeks ago. I hope I am wrong in my suspicions that the absence of the Minister for Justice and the fact that there is not a single Labour Deputy present for this debate bodes ill. I suspect their absence indicates that the Government will be stating to the House that it opposes this measure. I hope the Minister of State at the Department of Justice will prove me wrong in that regard. If such an attitude is taken it is clear that the Government parties will be effectively betraying the commitment given in the Programme for Government and the Labour Party will be showing the political two fingers to the motion passed at conference.

Under the terms of the Bill a refugee is defined as "a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (i) is outside of the country of his nationality and is unable or, owing to such fear, is unwilling to return to it, or (ii) not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to that country". This definition derives directly from the Geneva Convention.

The Bill, if enacted, will ensure that every person who seeks recognition as a refugee and who seeks asylum will, first, have the right to access to legal advice and representation and access to an interpreter, and will be informed of such rights; second, it ensures that a person who seeks asylum will be notified of all information obtained by the Minister for Justice with regard to an application made and will be afforded a reasonable opportunity to respond to such information; third, it ensures that a person who seeks asylum will be interviewed by an official who is familiar with the provisions of the United Nations Convention and the State's obligations under that convention; fourth, it guarantees that a person who seeks asylum will be entitled to communicate independently with the United Nations High Commission on Refugees and will be advised in writing of the decision reached and the reasons for the decision, and finally it provides for a right of appeal to a newly established refugee appeals tribunal.

In determination of applications for refugee status and asylum the Minister for Justice, under the legislation, will have the following obligations. No asylum seeker can be removed from the State without being given an opportunity to properly present his case. Every application received will have to be examined in accordance with the State's obligations under the United Nations Convention and the Minister will be required to seek the views of the United Nations High Commission on Refugees and the Minister for Foreign Affairs in respect of all applications received. In determining applications received the Minister will have to take into account not only the views expressed by the applicant and the communications received from the United Nations High Commission and the Minister for Foreign Affairs but also views expressed by other bodies and organisations including Amnesty International and the Irish Refugee Council, to whom I pay tribute for their outstanding voluntary work in this area. Where the United Nations Convention does not apply, under the legislation it will be open to the Minister on humanitarian grounds to grant refugee status and asylum to an applicant.

Under the Bill an applicant who is dissatisfied with a decision reached will, within a period of 21 days from receipt of notification of such decision, be entitled to appeal to the refugee tribunal. This independent tribunal will fully hear the case made by the applicant and the decision will be final subject to an appeal to the High Court on a question of law. Appeal hearings before the tribunal will be in public unless an applicant requests that they be held in private, in which case such request will be granted. While it is desirable that decisions made by the tribunal be transparent, it is recognised that it may be necessary that such hearings be held in private so as to ensure that nothing said could place at risk an applicant's life or the lives of family members or friends who remain in the applicant's country of origin.

The tribunal will be required to publish an annual report detailing its work and the decisions made by it. This provision will ensure a degree of transparency about the decision-making process so that Members of this House and the general public will see how the legislation is working and the manner in which we are complying with our international obligations.

I wish to refer briefly to each of the sections in the Bill. Section 1 details the Title to the Bill. Section 2 provides that the Bill will come into operation six months after its enactment. Section 3 is the definition section. It contains the definition of refugee already referred to, which corresponds exactly with the definition contained in the Geneva Convention. Section 4 deals with applications for recognition of refugee status and for asylum and provides that any person who is within the State or who arrives at the frontiers of the State may apply to the Minister for Justice to be recognised as a refugee and to be granted asylum. This section provides that an appeal may be made against a decision of the Minister to a refugee appeals tribunal.

Subsections (3) and (4) of section 4 detail certain circumstances in which a Minister may refuse to determine an application for asylum and are in accord with the provisions of the Geneva Convention. Primarily the Minister may decline to determine an application in circumstances where there is another state in which the applicant may apply for recognition as a refugee whose laws and practices comply fully with the requirements of the Geneva Convention and with which the applicant has closer connections than with this State and where there are no special circumstances requiring the Minister to consider and determine the application. The Minister may also decline to process an application where a final determination has yet to be made on an application for asylum by a person to such state or where the applicant has been refused recognition as a refugee in such state.

Section 5 requires the Minister for Justice, prior to determining an application for asylum, to seek the views of the United Nations High Commission on Refugees and of the Minister for Foreign Affairs. This makes part of our statute law the procedure that is supposed to be applied under the arrangements agreed with the High Commission on Refugees in 1985. Prior to making a decision the Minister must also have regard to communications received, as previously mentioned, not only from the High Commission on Refugees and the Minister for Foreign Affairs but also from any other body or organisation. This allows for non-governmental organisations such as Amnesty International, the Irish Refugee Council, the Commission on Justice and Peace or any other body to make submissions to the Minister with regard to the decision to be made on an application for refugee status and asylum.

Section 6 provides that every person who seeks recognition as a refugee and who seeks asylum shall be entitled to access to legal advice and representation and, where necessary, a right of access to an interpreter. Moreover, it requires that every such person be informed of their rights in this regard. Section 7 provides that every person recognised as a refugee must be granted asylum. Section 8 prohibits the Minister or any person acting on the Minister's behalf from deporting or removing from the State or returning any person to any other state where "their life or freedom would be threatened" on account of their race, religion, nationality, membership of a particular social group or political opinion. Nor can such person be removed to a third state unless the Minister is satisfied that that state will not so deal with them.

Section 9 details a number of circumstances in which a person will cease to be a refugee and cease to be entitled to political asylum — for example, where a person previously granted asylum voluntarily returns to his or her country of origin.

Section 10 excludes certain persons from entitlement to protection as a refugee and to a grant of political asylum. For example, refugee status will not be extended to a person who has committed a war crime, or a crime against humanity or who has committed a crime of genocide within the meaning of the Genocide Act, 1973.

Section 11 provides for the making of regulations by the Minister for Justice for the "making, consideration and determination of applications" under the Bill. While conferring on the Minister a general power to make regulations, the section specifically requires that regulations be made to provide for the following matters: (a) the immediate notification to the Minister by immigration officers of the making of an application; (b) the interviewing of all applicants by an appropriate person familiar with the provisions of the Convention and the State's obligations thereunder; (c) the representation of applicants at such interviews by a solicitor and the provision of the services of an independent and competent interpreter where necessary; (d) notification to all applicants of their right to legal representation, access to an interpreter and of their right to appeal against any determination made; (e) notification to all applicants of information obtained by or on behalf of the Minister with regard to an application made and to afford reasonable time to the applicant to respond to such information; (f) notification to all applicants of their right to independently contact the Commission; (g) the communication in writing of the determination to the applicant and the giving of reasons for a determination to him and, in the event of an application being refused, the giving of this notification to the applicant of his right to appeal under the Bill and the manner in which that right may be exercised.

Section 11 also recognises the importance of the United Nations High Commissioner for Refugees Handbook on procedures and criteria for determining refugee status by requiring that nothing contained in any regulations made under the Act shall contravene its provisions. This is important so as to ensure that we fully comply with our international obligations and it is also a further step towards ensuring an international uniformity of approach for asylum applications.

In this context, it is worth noting that the European Parliament on 5 November 1992 in a report of the Committee of Civil Liberties and Internal Affairs on the harmonisation within the European Communities of Asylum Law and Policies, the rapporteur of which was Mr. Patrick Cooney, MEP, a former Minister for Justice in this State, noted that the interpretation of the definition of a refugee in the Convention, which coincides with the definition contained in this Bill, has given rise in practice to difficulties, in particular because the terms "well founded" and "persecution" can mean many things. It is important, the report states, that "the interpretation within the members states of the EC be as consistent as possible, for consistency in this regard has to be fundamental to any process of harmonisation". The report emphasises the need for a consistent interpretation of qualifications for refugee status and recommends "that in order to achieve this consistency, member states should have recourse to the UNHCR handbook on procedures and criteria which deals comprehensively with this very difficult point." Organisations such as Amnesty International and the Irish Council for Refugees have emphasised to me the importance of making reference to the handbook in this legislation. That reference is now contained therein.

Section 12 provides that nothing contained in the Aliens Act, 1935, or in any of the orders made under the Act shall be taken to require or to authorise any action which contravenes this State's obligation under the Convention and that in the event of any conflict between the terms of any order made by the Minister for Justice under section 11 of this Bill and an order made under the 1935 Act, the order made under this Bill shall have priority.

Section 13 establishes the Refugee Appeal Tribunal and provides that it shall "be independent in the exercise of its functions". Under section 14, an applicant who is dissatisfied with a ministerial determination that he or she be refused recognition as a refugee and be granted asylum is given 21 days from the date of notification of a decision made to lodge an appeal.

Section 15 provides for the full hearing of a case on appeal before the tribunal. It allows the tribunal to take into account additional matters raised by an applicant that were not raised in the original application. The decision of the tribunal is final, subject to an appeal to the High Court on a question of law.

Section 16 details the powers of the tribunal. It may make one of the following orders: (a) it may disallow the applicant's appeal; (b) it may allow the appeal and declare that the applicant is a refugee within the meaning of the Bill; (c) notwithstanding the disallowing of an appeal, it may direct the Minister not to remove or deport the applicant to any specific country or countries stated by it; (d) notwithstanding the disallowing of an appeal, it may recommend that the Minister give an applicant humanitarian leave to enter and remain in the State for a specified period of time or indefinitely or until a specific condition or specific conditions are fulfilled; (e) having regard to the significance of any matters submitted for its consideration by the applicant which were not available for consideration by the Minister, it may decline to determine the appeal and, in that case, refer the application back to the Minister for determination. An appeal would still be allowed from the ultimate decision made by the Minister. The Minister is required under the Bill to comply with a determination made by the tribunal.

The schedule to the Bill provides for the establishment of the tribunal which is to have a chairman and a vice-chairman who must be a practising barrister or solicitor of not less than ten years standing and four ordinary members. The members are appointed by the Minister for Justice and the provisions relating to such appointments are similar to those that apply to the appointment of members of the Employment Appeals Tribunal. It is provided that the tribunal when sitting is to be composed of the chairman or vice-chairman and two ordinary members of the tribunal and the tribunal can sit in two separate divisions if necessary.

It is empowered to take evidence on oath to require persons to attend before it as witnesses and the Minister is empowered to make regulations as to the manner in which the tribunal is to exercise its functions. The tribunal is required to submit an annual report to the Minister which report is to be published and laid before both Houses of the Oireachtas, so that there is clear public knowledge as to how we are administering the Bill and complying with our international legal obligations.

I have now completed outlining the general structure of the Bill. The need for this legislation is, I believe, widely recognised. It is my hope that this Bill will receive the same constructive response from the Government that resulted in two earlier Private Members' Bills tabled by me passing through the Oireachtas and being enacted into law. I refer in this instance to the Judicial Separation and Family Law Reform Act, 1989 and the Adoption Act, 1991 which allowed for the recognition of foreign adoptions. If those Bills had not been published as Private Members' Bills and had not been accepted by Government, the legislation that they have put on our Statute Book would still not have formed part of our law today.

The Refugee Protection Bill, 1993, is brought before this House by me on behalf of the Fine Gael Party not as a party politically contentious piece of legislation but as a constructive measure designed to ensure that those who seek refugee status in Ireland and claim political asylum are treated with dignity and humanity and that their rights under international law are fully respected.

I am specifically asking the Minister of State at the Department of Justice that the Government would not, by way of knee-jerk reaction, automatically oppose this measure simply because it comes from the Opposition side of the House. I ask the Government to agree to its successful passage through Second Stage without contention and to its move to Committee Stage before the newly established Select Committee on Legislation and Security for a detailed examination. If the Government agrees to us so proceeding I would, of course, be happy to take on board any constructive amendments that may be proposed to the Bill by the Minister so as to ensure its effectiveness. If the Government so deals with the matter we will be seen to be clearly on the road to copperfastening Dáil reform and allowing this House to act truly as a legislative Assembly.

If the Government simply opposes the measure on the usual trite grounds that it is looking into the issue itself and listing a number of theoretical defects in the Bill, it will undermine entirely the credibility of the claim made in Government statements that it wants to bring about political change and allow Members of this House to act truly as legislators. I hope my premonitions that arise from the absence of the Minister for Justice and the absence of a single Labour Deputy in the House prove to be wrong. I hope the Minister of State, Deputy O'Dea, will tell us this evening that the Government accept in principle the intent of this Bill, that it will not be opposed on Wednesday week and that we can proceed to a constructive Committee Stage in the Select Committee on Legislation and Security and that we can, effectively, have this legislation enacted before we adjourn for the summer recess.

Mr. Foley

I wish to share my time with my colleague, Deputy Ó Cuív.

An Ceann Comhairle

Is that satisfactory? Agreed.

Mr. Foley

At the outset, I wish to say that the Private Member's Bill put forward by Deputy Shatter reminds me a little of the curate's egg; it may honestly be described as being good in spots. But good in spots is not good enough. For this reason I am opposed to this Bill and I look to the Minister for Justice, in consultation with her Government colleagues, to make whatever proposals she considers may be essential in the area of consideration of applications for refugee status or political asylum.

When people think of refugees the images that come to mind are those of people who are fleeing war zones, such as those who are the victims of ethnic cleansing in the former Yugoslavia. Everybody on all sides of the House can sympathise with the truck loads of people, often women and young children, who are moved from one part of Bosnia to a safer area where they are surrounded by people of their own ethnic origin. It is regrettable that those people feel they have to flee their homes, but it is understandable that they should want to do so.

Mr. Carey

On a point of order, I would like to elicit some information. It is usual practice for the Minister to reply to the opening speech by the Deputy who introduces a Bill. This is the first time I have seen someone other than the Miniter reply. Deputy Foley is a good friend of mine——

An Ceann Comhairle

The Chair calls Members as they offer. The Chair cannot compel any Member to speak if he or she does not want to. Deputy Foley, please, without interruption.

Mr. Carey

The Deputy may have some of my time.

An Ceann Comhairle

There is a time limit on this debate and it is wrong to interrupt in this fashion.

Mr. Carey

The point of order I raised with regard to——

An Ceann Comhairle

It is not a point of order. The Deputy will resume his seat. Let us not waste precious time.

Mr. M. McDowell

I wish to make a genuine point of order. I understand the rules of this House prohibit the reading of a script. That is the ruling of the Chair of this House and it is provided in Standing Orders that a Deputy may not use a script and, at the very least, when a script is used on an occasion like this, it should be circulated.

An Ceann Comhairle

The Chair takes the view that if a Deputy is reading from extended notes——

Minister of State at the Department of Justice (Mr. O'Dea)

On all sides.

An Ceann Comhairle

——the Chair were to take a contrary point of view it may well have the effect of disadvantaging many Members of this House. Let the Deputy in possession proceed.

Mr. M. McDowell

Maybe we should change the Standing Orders.

Mr. Foley

It is regrettable that those people feel they have to flee their homes but it is understandable that they should want to do so. Overall, it is something which attracts a great deal of sympathy and rightly so.

The Geneva Convention on the Status of Refugees, that is the 1951 Convention as amended by the 1967 New York Protocol, gives special protection to a person who flees his or her own country on the basis of well-founded fear of persecution for reasons of race, religion, nationality or membership of a particular social group or political opinion. That description, which is set out in the first article of the Convention, is to all intents and purposes a definition of a refugee. Successive Irish Governments have lived up to the obligations imposed on them by the Convention. The principal vehicle used by various Governments to implement that policy has been an agreement entered into in 1985 between the Department of Justice and the United Nations High Commission for Refugees.

That agreement was entered into between the London Office of the United Nations Commission for Refugees and the Department of Justice to deal with the small numbers of asylum seekers who come here each year. This formal agreement, which has been held by the courts to be legally binding on the Government, was introduced in 1985 by the then Minister for Justice, Deputy Michael Noonan, who represents Limerick East and a member of Deputy Shatter's party. The agreement was welcomed by all parties interested in this area as a well-balanced and fair procedure which would ensure the safety of the genuine refugee.

We must ask why did the then Minister, Deputy Noonan, consider that an agreement between the United Nations High Commission for Refugees and the Department of Justice was the most appropriate way of introducing arrangements for considering applications for political asylum? Why did he not take the line that Deputy Shatter is now taking which is to the effect that legislation is essential. The answer to that, as I understand it, is that Deputy Noonan considered that the number of applications was so small and the method of considering them — to see whether such applicants fitted the definition of a refugee as set out in Article 1 of the Geneva Convention — was so clear that legislation was unnecessary and would be bureaucratic and too heavy-handed for the approach that was needed. Deputy Noonan was right in this approach to the question at the time, an approach which was seen as fair and far-sighted. The numbers of persons applying in Ireland for refugee status since the agreement was introduced has not increased significantly. We are still receiving approximately 40-45 applications per year. In other words, very little has changed since 1985 and the reasoning behind this formal agreement between the United Nations High Commission for Refugees and the Department of Justice is still as clear and as sound today. That is why the Bill before the House is in the nature of a sledge hammer being used to crack a nut. It is, in short, unnecessary.

The Bill would also appear to be deficient because it appears to have been drafted without account being taken of the international obligations which will be placed on us when the Dublin Convention is ratified. The Dublin Convention on Asylum, or to give it its full title, the Convention Determining the State Responsible for Examining Applications for Asylum lodged in one of the member states of the European Communities, is an important convention which was signed by the member states of the Community during Ireland's presidency of the Community in the first half of 1990. In that regard I place on record our appreciation of the successful work carried out by Deputy Ray Burke during our presidency, in having the Convention signed in Dublin Castle.

That Convention is currently in the course of ratification by the Twelve member states. It is expected that it will come into effect next year. It will impose on us and on the other member states an obligation to consider which of the Twelve will consider applications for refugee status from third country nationals. Its provisions are complex and have regard for the principles of international law. It goes way beyond the simple provision in section 4 of the Bill before the House. In this regard, the Bill can only be described as deficient.

When I said earlier that the Bill was good in some respects I was referring to those provisions which are lifted more or less from the agreement between the United Nations High Commission for Refugees and the Department of Justice. That agreement is very specific. It provides, for instance, that immigration officers should be provided with written guidelines which indicate that persons should not be returned to a country to which they are unable or unwilling to go, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a social group or political opinion, nor should they be returned to a country where their personal safety might be seriously threatened as a result of the prevailing political situation.

The agreement provides also that such individuals will not be refused entry or removed until they have been given an opportunity to express their case fully, until their application for political asylum has been examined and a decision reached. Furthermore, the asylum application must be examined by the Department in accordance with the 1951 Geneva Convention and 1967 Protocol on the Status of Refugees. I have outlined already a definition of a refugee as described in Article 1 of the Convention. Moreover, the examination of the application by the Department shall not preclude the taking into account of humanitarian considerations that might justify the grant of leave to remain in the State. I would like to place on record that while the vast majority of applications for refugee status under the Convention are refused because they do not qualify under the terms of the Convention, a considerable proportion of the applicants are, nevertheless, allowed remain here for humanitarian reasons and they are very often processed for naturalisation as Irish Citizens in due course in the normal way.

The agreement between the United Nations High Commission for Refugees and the Department of Justice provides that applicants for political asylum will be given the necessary facilities for submitting their cases to the Department. If applicants are not proficient in English the services of a competent interpreter will be made available when they are being interviewed. They must be informed of the procedure to be followed and are always given the opportunity to contact a representative of the United Nations High Commission for Refugees or a local representative of their choice. All applicants are given this information in a language which they understand. In addition, all applicants are interviewed in person and interviews are conducted to the greatest extent possible by officials of the Department who understand asylum procedures and the application of refugee criteria and who are as well-informed as possible on the human rights position in the country of origin. Of course, applicants' legal representatives may be present and represent their clients at such interviews.

In all cases the United Nations High Commissioner for Refugees Office in London is consulted for their views on whether the application falls within the terms of the Convention and this is quite right. The United Nations High Commission for Refugees does not have an office in Dublin because the number of asylum seekers applying here would not warrant one. The idea of referring each application to their London Office is very satisfactory because of all the people in the world, they are amongst the best able to decide who does or does not qualify under the Geneva Convention for refugee status. Indeed the UNHCR has been given a special supervisory role under the Geneva Convention to ensure that countries comply with its terms. We are very pleased that they have undertaken to examine each application on our behalf. They are the acknowledged experts in the field and keep themselves well informed of the human rights position in the country of origin of asylum.

Here I would like to place on the record of the House the fact that no Minister for Justice has ever disagreed with the views of the United Nations High Commission for Refugees as to whether a particular individual qualifies for refugee status. The factual position is that less than 5 per cent of applicants meet the criteria set out in the Convention.

I have set out the procedures that exist for considering asylum applications. I am satisfied that it has worked well in dealing with the number of persons who apply here for refugee status. I do not see the Bill as essential. I am not in favour of supporting it.

Éamon Ó Cuív

Tá áthas orm an deis seo a fháil chun labhairt ar an mBille seo ach creidim go bhfuil bunlocht amháin air. Tuigim, ar ndóigh, go bhfuil fonn ar an Teachta Shatter dídeanaithe a chosaint, agus tá mé go mór ar a shon sin ach tá locht ar an mBille seo sa mhéid, de réir mar a thuigimse an scéal, go mbraitheann an Roinn Dlí agus Cirt go mór ar an United High Commission for Refugees le haghaidh comhairle agus cinnithe a dhéanamh, maidir le dídeanaithe atá ag iarraidh fanacht sa tír seo. Má ghlactar leis gurb é siúd is fearr, gur féidir leo cinnithe a dhéanamh i gcásanna mar seo, b'aisteach an rud é sinne dream éigin a chur os a gceann siadsan, is é sin, coiste achomhairc chun go bhféadfaí athbhreithniú a dhéanamh ar chinneadh a bheadh déanta ag dream a aithnimid a bheith ceaptha——

(Interruptions.)

——glacaim leis go rachfar i gcomhairle leo, ach ó thaobh an achomhairc de, i gcás go ndéanann siad moladh, nach ceart duine a ligean isteach sa tír, tá an Teachta ag rá go mba cheadmhach achomharc a dhéanamh in aghaidh an bhreithiúnais sin chuig an tribunal seo. Cuireann sé sin iontas orm. Má tá sé de nós glacadh leis an gcomhairle atá á cur ar fáil acu siúd, ba cheart cloí leis an nós sin agus gan cur ina gcead siadsan sa tír seo nuair atáimid a mhaíomh gurb é bunús an Bhille ná feidhm a thabhairt do na coinbhinsin éagsúla atá á gcur i bhfeidhm go héifeachtach sa tír seo cheana féin. Creidim go bhfuil an Bille seo, go bunúsach, lochtach, agus go bhfuil casadh á chur sa scéal nach bhfuil gá leis. B'fhearr dúinn athbhreithniú a dhénamh. Tuigtear dom go bhfuil an t-Aire ag dul do seo sa chaoi go bhfeidhmeofar na cleachtais i dtaobh dídeanaithe, go bunúsach de réir chomhairle an UNHCR.

Cé ar cheart, agus cé nár cheart ligean isteach sa tír seo? Caithfimid bheith ansoiléir gur ag caint ar dhídeanaithe atáimid, dream go mba chontúirt dóibh dá gcuirfí ar ais iad go dtí a dtír dhúchais féin. Mar sin, is é an rud is bunasaí a chaithfear a phlé ná an bhfuil an chontúirt sin ann? Má ghlacaimid leis gurb amhlaidh an scéal, caithfear glacadh leis freisin go bhfuil breithiúnais mhíchearta á ndéanamh ag an United Nations High Commission nuair a bhíonn siad ag tabhairt comhairle don Rialtas anseo. Mar a dúirt an Teachta Broughan, ní raibh cás ar bith riamh ann go ndeachthas in aghaidh na comhairle a thug siad.

Maidir le cosaintí eile atá á gcur isteach sa Bhille, dá mba rud é nach raibh na seirbhísí aistriúcháin á gcur ar fáil, ná na cosaintí agus comhairle éifeachtach dlí, cheapfainn go mbeadh cás ann le cosaint dlí a chur ar fáil do dhaoine. Ach is é fírinne an scéil go bhfuil na háiseanna seo á gcur ar fáil, chomh fada agus is féidir, agus, mar sin, níl aon ghá le iad a chur isteach sa dlí. Chomh maith leis sin bheifí ag baint de sholúbthacht an chórais. Is é an cheist a chaithfear a thógáil ná, an bhfuil daoine á gcoinneáil amach as an tír seo, dídeanaithe atá i gcontúirt d'uireasa an Bhille seo? Má tá, caithfidh go bhfuil an chomhairle atá á tabhairt ag an United Nations High Commission lochtach. Is ionann sin agus a rá go bhfuil an breithiúnas a thabharfadh muide níos cirte ná breithiúnas na heagraíochta idirnáisiúnta a bhfuil de chúram orthu na ceisteanna seo a phlé. Go praiticiúil tá na coinbhinsin á gcur i bhfeidhm, mar a dúirt an t-Aire. Government policy on political asylum is and has been in accordance with our international commitment arising under the 1951 United Nations Convention on the Status of Refugees as amended by the 1967 New York Protocol. A procedure was agreed in 1985 with the UN High Commissioner for refugees, providing the administrative structure for dealing with applications for refugee status.

Anois, is léir ón méid sin go bhfuil na córais riaracháin a leag na coinbhinsin sin síos á chur i bhfeidhm anseo, agus is léir mar sin, go gcaithfidh go gcreideann an Teachta a chuir an Bille seo faoi bhráid an Tí go bhfuil na coinbhinsin sin lochtach agus nach bhfuil dóthain cosanta iontu do dhídeanaithe. Ar eagla go mbeadh míthuiscint ann faoin uimhir daoine atá i gceist sa rud seo ar fad agus cá mhéad cás a thagann faoi bhráid an Aire chuile bhliain, nó faoi bhráid na Roinne, táimid ag caint go bunúsach faoi thart ar ceathracha duine. Sin an líon daoine atá i gceist.

Tá contúirt ann in fhoclaíocht an Bhille go mbeadh muid ag tabhairt ceart dlíthiúl do chuile dhuine a thiocfadh isteach sa tír seo, dídean a lorg. Tá an baol ann go bhféadfadh daoine as éadan an chosaint seo a lorg agus teacht tríd an chóras seo, an t-achomharc. Bheadh an oiread sin daoine ag teacht isteach faoin gcóras sin, go bhféadfadh dhá rud tarlú: go gcuirfí moill ar chásanna fíordhídeanaithe nó go séanfaí cearta d'fhíordhídeanaithe dá bharr. Ar an taobh eile den scéal, bheadh míúsáid á baint as an gcóras ag daoine nach fíordhídeanaithe iad. Sin é an fáth gur chuir mé an oiread sin béime ar an ngné seo. D'fhéadfadh an liosta éirí chomh fada sin i ngeall ar an méid forálacha a bheadh anseo — an córas achomhairc agus mar sin de — go mbeadh cearta bunaidh bainte amach ag daoine sa tír seo faoin am go dtiocfadh a gcuid cásanna go dtí an t-achomharc——

(Interruptions).

An Leas-Cheann Comhairle

The Deputy in possession without interruption, please.

Éamon Ó Cuív

Níl aon tagairt, ar ndóigh, a Leas-Cheann Comhairle, don cheist sin sa Bhille seo. Níl aon tagairt do céard a dhéanfaí leis na daoine seo ar fad dá dtiocfadh siad isteach. Níl aon fhreagra ar an cheist sin, sa Bhille agus mar sin, is ag cur leis an bhfadhb áirithe sin a bheadh sé——

(Interruptions.)

Bheadh an córas nua sa Bhille níos fadalaí ná an córas atá ann i láthair na huaire agus an fad is atá an breithiúnas á dhéanamh ar an gcás, níl aon rud ráite faoi cén áit a gcoinneofaí na daoine seo ar fad — chaithfí iad a choinneáil áit éigin de réir an chórais atá á leagan amach anseo. Tháinig 750,000 duine isteach i dtíortha an Chomhphobail le blianta. Dá mba rud é gur thosaigh chuile dhuine acusan ag lorg cearta dídeanaithe, cá gcuirfeá ansin iad? Níl aon soláthar sa Bhille dá leithéid.

Creidim féin gurb éard an rud a chaithfimid a dhéanamh agus is minic é seo ráite — b'fhéidir go bhfuil tionchar mhuintir Chonamara, dream atá thar a bheith praticiúil, ag dul i gcion orm thar na blianta-seachas a thuilleadh dlíthe a scr-íobh, nó fad a chur leis an gcóras ná iomlán chothrom na Féinne a thabhairt do na fíordhídeanaithe a thagann isteach sa tír, seo. Caithfimid córas a leagan amach nach mbeidh aon spreagadh ann do dhaoine nach dídeanaithe iad bheith ar lorg cosanta nó fanacht sa tír seo. Freisin, caithfimid cinntiú go gcloífear leis na coinbhinsin idirnáisiunta atá ann ionas nach mbeidh muid ag leagan amach córais a bheadh os a cheann sin. Sin an dá rud go gcaithfimid a dhéanamh agus sin an dá rud ar theip glan ar an mBille seo a dhéanamh. Ní aon mhaitheas é structúr a chur ar fáil a bheadh ag teacht salach ar chinneadh a bheadh á dhéanamh ag an dream idirnáisiúnta atá ag plé leis an gceist seo agus, mar sin, ní bheimis amach anseo ag glacadh leis na coinbhinsin a bhfuil an Teachta, atá ag cur an Bhille seo faoi bhráid na Dála, ag iarraidh a gcosaint. Mar sin, creidim gurb é an bealach is fearr chun an chuibhis seo ná breathnú as an nua ar na córais riaracháin a bhaineann leis an cheist seo ar fad, féachaint le cinneadh sciobtha a dhéanamh. Ba cheart dúinn rudaí eile atá luaite sa Bhille a scrúdú, mar shampla, daoine aistriúcháin, lucht dlí, féachaint le comhairle den uile chineál a chur ar dhídeanaithe. Sin é an chéad rud, agus an dara rud ná leanúint linn ag cur i bhfeidhm na socruithe idirnáisiúnta atá déanta.

Creidim, má dhéanaimid é sin, agus má dhéanann an t-Aire an t-athbhreith-niú sin, gur féidir linn fóirithint níos fearr ar dhídeanaithe, dream go mbeadh an-bhá agamsa leo, ná mar a d'fhéadfadh muid trí Bhille a thabhairt isteach a dhéanfadh an scéal ag deireadh an lae níos measa don fhíordhream dídeanach atá ar lorg dídine sa tír seo.

Mr. M. McDowell

I must say that tonight's debate is a shameful passage in the recent history of this House. I use those words not with an undue sense of exaggeration because we come here with important legislation proposed by a private Member of this House and it does not even get the courtesy of a ministerial reply. It does get the attention of two backbenchers speaking on behalf of the Government, one of whom clearly used a script supplied to him by the Department of Justice. The other availed of our national language to express views — to which I will return — which are unacceptable in any modern democracy and which, veiled in our national language, may not get the currency which they deserve. I was listening carefully and I understood what he said. The logic of what he said should be brought out in sharp detail.

Mr. L. Fitzgerald

Expressions about the use of the Irish language are unacceptable.

Mr. M. McDowell

The gentlemen opposite may disagree — I can see them shaking their heads — but I will continue because the shameful attitude of the Government tonight must be exposed.

Éamon Ó Cuiv

——droch-mheas caillte——

Mr. M. McDowell

This Bill put forward by Deputy Shatter is designed to bring some form of order and administrative law into a very important aspect of Irish public policy, the way in which we deal with people who come to our shores and our airports seeking protection from this State in accordance with international law. The Bill seeks to put a legal system in place to protect those individual's rights in accordance with our obligations under international law.

The Deputies opposite who have spoken have upheld the past practice here of a totally unreviewable administrative practice which, in effect, is denying people ordinary basic human rights. Those Deputies who have contributed to this debate do not understand what they are dealing with. What about the Libyan student who spent two years in prison here awaiting a determination of his status and awaiting deportation because the Irish Government was not in a position to put him back from whence he came? What about the Chinese student, to whom Deputy Shatter referred, who spent seven months in Mountjoy jail because his only crime was to come to this shore without a visa and to invoke the protection of this country against political persecution in Peking? What does Deputy Ó Cuív think or care about such a person? That person spent seven months in Mountjoy jail in circumstances where criminals in Ireland are being let go to make room for people like him. Has the Deputy any idea of the shame he brings on us?

Mr. Shatter

He does not even accept it.

Mr. M. McDowell

These people are committed to our jails by officials who do not even have to get a court order to do it. Moreover, they are not even told that they have a right to see a lawyer to get them out of jail. They spend weeks and months in our prisons without any entitlement to legal aid or review or appeal from the decision which put them there in the first place. The Deputies opposite who have spoken according to supplied scripts agus trí Ghaeilge have never seen the people they are talking about. While they are doing the Minister's dirty work tonight they are ignoring the reality that a young Chinese student spent seven months in Mountjoy jail because he had the cheek to come to this country and ask to be considered as a refugee. I wonder what kind of political tradition is represented by the Deputies who think that is all right. I suggest that tonight is one of shame for them.

(Interruptions.)

Mr. M. McDowell

Deputy Ó Cuív had his opportunity and he was as obscure as he wanted to be, now he will have to listen.

Mr. Shatter

Why have the Deputies opposite tried to do the Minister's dirty work on the basis of ignorance?

An Leas-Cheann Comhairle

Deputy McDowell to continue without interruption.

Mr. Shatter

Where are their Labour colleagues? They will be delighted with the Deputies' performance tonight.

Mr. M. McDowell

Deputy Ó Cuív told this House go raibh contúirt ann maidir le daoine nach dídeanaithe iad, míúsáid a bhaint as cosaint atá ar fáil sa Bhille seo. He said that people who came to this country who were not really refugees could abuse the protections Deputy Shatter was offering to them in this Bill. It is important that this House should understand that, although he disguised it by not using the ordinary vernacular of many people here. He said this Bill offers safeguards that some people who are not genuine refugees could abuse, according to him it was a fundamental defect in the Bill that a safeguard could be abused. What a scandalously low view of international law that represents. One does not give anybody any rights because those people who are not entitled to them might abuse them.

Éamon Ó Cuív

It is clear that the Deputy did not understand what I said.

Mr. M. McDowell

I understood precisely what the Deputy said and the record will show that I am quoting him fairly. The Deputy also went on to say that nobody in Ireland was denied refugee status if the United Nations High Commissioner of Refugees thought that he should be accorded it. That totally departs from reality because people are regularly put back on flights without any knowledge of their entitlements under international law. It may be that Deputy Ó Cuív and Deputy Foley think that people who come here from Bosnia and Sri Lanka have read up their UN Convention, that they know the words they should invoke, that they know their legal rights when they arrive at Shannon, understand international law and are fully conversant with their rights. However, everyone of us knows that that is far from being the reality and that people have been bundled back onto planes. The incident to which Deputy Shatter referred where the Kurdish refugees were herded aboard a plane to get them out of the country before they could have any access to anybody who was in any way well disposed towards them underlines precisely why it is necessary to have a system of law as opposed to simple administrative discretion to deal with these people.

Someone who comes to this country and asks for refugee status is entitled to some basic rights under international human law and one of them is that he deals with somebody who is capable of representing his case to the people who are about to make the decision about him. That involves a right to see a lawyer immediately to make his argument to the administrative tribunal of whatever kind that is to make the decision about him. That right, if it exists at all, exists only on paper. The reality is that an officer of the Department of Justice, using powers under the Aliens Act, is entitled to make a decision about that person and commit him to jail without any judicial interference whatsoever. Deputies may disagree with that, but that is the fact. People are lodged in Mountjoy and put into our prisons at the behest of the officials of the Department of Justice, and they are not granted access of an immediate kind to any judicial authority before a decision of that kind is made in respect of them.

(Interruptions.)

Mr. M. McDowell

I did not catch that. I am saying to the Deputy that everybody in Mountjoy has a right to go to the High Court for habeas corpus, but is it not amazing that a Libyan student did it after two years, that a Chinese student did it after seven months, and that nobody tried to vindicate their rights in the interim?

(Interruptions.)

Mr. M. McDowell

I will come to the Deputy's point in a moment but if the Deputy is suggesting that everything is hunky-dory——

(Interruptions.)

Mr. M. McDowell

If the Deputy insists on barracking me, he may do so, but I would suggest that he do it outside.

An Leas-Cheann Comhairle

The Deputy in possession must be allowed to continue without further interruption.

Mr. M. McDowell

I am willing to confront humbug wherever I see it and in whatever language it comes, because humbug it is. We have heard here a speech prepared by the Department of Justice to defend the indefensible and we have heard another Deputy in this House announce an appalling proposition, that is, that rights should not be accorded to non-Irish people because people may abuse any legal defences we put in their way. That is what is being put forward as a proposition in this House. That is unacceptable as a rule of practice; it is unacceptable as a way of vindicating people's human rights.

(Interruptions.)

Mr. Shatter

On a point of order — I do not want to interrupt Deputy McDowell who is well able to take care of himself — but if Deputy O Cuív's thesis was correct, his grandfather never would have introduced the Constitution, in case by extending the provisions of that Constitution it might be abused by citizens or by non-citizens of this State.

Mr. L. Fitzgerald

On a point of order, is it right and proper for Deputy Shatter to constantly provoke the public gallery into applause?

An Leas-Cheann Comhairle

As Deputy Shatter well knows he did not raise a point of order. Please continue, Deputy McDowell.

Mr. M. McDowell

I will surprise Deputy Ó Cuív by telling him that in one respect I agree with him. There is one aspect of Deputy Shatter's Bill that could be improved and would be improved on if it came to Committee Stage. The Bill should include a firm guarantee that nobody would be imprisoned without a judicial order and that nobody would be remanded in custody, effectively by departmental fiat.

Éamon Ó Cuív

Níl se sin ainn.

Mr. M. McDowell

I know it is not in the Bill but I am suggesting that it could well be put into the Bill.

(Interruptions.)

An Leas-Cheann Comhairle

Deputy Ó Cuív, I must ask you now to refrain from interrupting.

Mr. M. McDowell

The Deputy is clearly unaware of a stage in this House's legislative process called the Committee Stage. If he sees any defect in a Bill which he agrees with in principle, he or any other Member of this House is free to table an amendment to deal with it and it is precisely on that basis that we should operate. This notion of hunting through the Bill — which happens in every Department whenever a Private Members' Bill is tabled — to look for something wrong in it and saying that it cannot be given a Second Reading and cannot go through Committee Stage for the purpose of improving it is entirely spurious. Again and again some poor benighted civil servant is put to hunting through every Bill to find some defect in it so that somebody can stand up and say go bhfuil sé lochtadh bunúsach, to use the Deputy's phrase. The fact that the Bill is "defective" is the great put down.

This Government stated in its joint Programme for Government that our policy on the treatment of refugees, asylum seekers and immigrants will meet the highest international standards and that procedures will be introduced — not that they are in place — to guarantee rights of hearing, appeal, access to legal advice and access to the courts. These are the defences, na cosantaí, that the Deputy said would be abused and therefore must be denied. These are precisely what this Government has promised and they now, through the medium of a back bencher, say that they have no intention of delivering on that commitment because people may abuse those rights when they are presented. That is what the Deputy said and if the Deputy would only read his own Government's Programme for Government he would realise that his speech not only subverts what is in that programme but flagrantly contradicts the spirit of it.

Éamon Ó Cuív

The longer the Deputy goes on the more he shows that he did not understand a word I said from beginning to end.

Mr. M. McDowell

I understood perfectly what the Deputy said.

Éamon Ó Cuív

The Deputy has mistranslated what I said and the gallery are getting a total misrepresentation.

Mr. M. McDowell

That is the Deputy's problem.

An Leas-Cheann Comhairle

I must ask you now to refrain from further interruption.

Mr. M. McDowell

Deputy Shatter signalled well in advance his intention to introduce this Bill. He stated very clearly in public that it was his intention to put in place a set of procedures which would guarantee the rights of persons coming to Ireland seeking refugee status. I hope he will take it amiss when I say he has done the minimum that would be necessary to vindicate their rights by putting in place a form of appeleate system which has been promised by the Government and some system of access through the medium of an appeal on a point of law to the High Court. His Bill is meritorious in every respect in so far as it amounts to a vindication of the promise made by the Government to deliver new rights to people who are seeking asylum in our country. His Bill would prevent the kind of abuses of which he spoke — the summary rejection of people who claim refugee status, their being put onto aeroplanes and hustled out of the country before they can have adequate access to people who might be in a position to help them, people who might by sympathetic to their point of view. Instead of that, what both of the backbench contributions from the Government seem to ask this House to accept as preferable is a system of administrative decision by nameless officials who are not accountable to this House.

The Aliens Act, 1935, was introduced in very different times. It was introduced even before the Constitution, about which Deputy Shatter spoke a few moments ago. In my view that Act is illegal and unconstitutional because in many respects it leaves the Minister with an unfettered discretion in relation to aliens and lays down no legislative policy to be followed. We discovered recently that legislative measures which give Ministers virtually untrammelled powers to deal with either individuals or classes of individuals, such as was given to the Minister for Justice under the Aliens Act, have been struck down by our courts. At some time in the future the Aliens Act will come a cropper. A High Court judge will state that the statute and labyrinthine series of orders made under that Act are infirm because they all amount to an abdication by this House of its obligation to uphold the rights of the individuals concerned and entrusts unlimited legislative powers in the Minister for Justice to exercise in regard to aliens.

I welcome the Bill and the Progressive Democrats support it. At present, persons who arrive in Ireland seeking refugee status are at the mercy of Department of Justice officials who can, without any court order, intervention of any kind or court supervision, commit such people to prison for indefinite periods. That is what is happening at present and that is what the two Deputies defended. In one case which came before the courts recently, to which Deputy Shatter referred, a Chinese national who claimed refugee status under the UN Convention on the basis that he was likely to be subjected to persecution because he took part in the Tiananman Square demonstrations was held for seven months in Mountjoy Prison while this State considered his application.

I do not have to remind Deputies opposite that while he was occupying a prison space, others who were convicted of crimes by our courts were released early. Guilty people went free while an innocent person was kept in jail. That was done because a departmental official thought it possible to commit that man to prison for an indefinite period until such time as lawyers who got in contact with him through voluntary organisations vindicated his rights. Deputy Harney told me this evening that a Libyan has recently spent almost two years in prison awaiting deportation by the Irish State.

Those people have the same rights as any person in Deputy Ó Cuív's constituency. They have a right not to be deprived of their liberty except in accordance with the law. What law gives a departmental official the right to say that while he or she considers a refugee's position the person must remain indefinitely in a penal institution? Why do we not have a holding centre or a system of bail for such people? All those things could be provided under the provisions of this Bill by an amendment——

Éamon Ó Cuív

They are not.

Mr. M. McDowell

——tabled by the Deputy on Committee Stage. None of the difficulties with our present law constitutes a good reason for refusing to act now to vindicate basic human rights.

Éamon Ó Cuív

We should do it properly.

Mr. M. McDowell

I suggest to both Deputies who contributed on behalf of the Government that their contributions ignore basic human and constitutional rights and, as a matter of basic constitutional law, the right to liberty is not only confined to Irish citizens but given to all people who fall within the jurisdiction of the Irish courts. Those rights were not vindicated by recent decisions of the Minister for Justice of officials of that Department who do not have a right to deprive others of their liberty or subject them to an indefinite term in jail. That is what happens and the Deputy does not know what he is talking about. I have met and spoken to people who have spend seven months in jail. The Deputy is full of wind and sound but knows nothing of the facts.

My final comment in regard to the way in which the Government has responded to this Bill this evening relates to the absence of ministerial response. I must say that the Minister of State, Deputy O'Dea, is assiduous in participating in the affairs of this House——

Miss Harney

Hear, hear.

Mr. M. McDowell

——and in his interplay with other Deputies, in debating matters with other Deputies, in listening to their points of view and, in general, in participating as a responsible Member of this Legislature. I must say that in his favour.

However, it is noteworthy that nobody from the Department of Justice, with ministerial responsibility, would stand up and respond to Deputy Shatter's speech without advance notice. If I may use the phrase without undue harshness on the two Deputies who came in here to respond, a sandbagging operation was done so that the Minister or Minister of State could come back with a more considered response at a later stage. The Minister of State, in particular, does not deserve the sharp end of my tongue on this matter but his senior Minister does. On every occasion she has come before this House she has single handedly delivered set piece speeches without any interruption. She never gives way to another Member of the House. She never takes a point from the other side of the House, but studiously ignores every interruption, remark or comment in the course of her parliamentary duties. She buries her head in her script and bashes on as if nothing said in this House could possibly affect how she should behave. I have noticed that on a number of debates in this House. She does not even take Committee Stages of her Bills in case she would be forced to discuss any measure on a rational basis with a member of the Opposition.

That is not a proper way for a Minister of our Government to treat this House. As Members of the Oireachtas we are entitled to put forward points of view to the Government during debates and to have adequate responses to those points during the course of debate by members of the Government. The two Ministers in the Department of Justice, especially the Minister of State, Deputy O'Dea, pay great service to this House, but a Minister should not come in here and supply a script stating that that is his or her attitude and we can like it or lump it. We are entitled to have a genuine debate in this House. We have had some interplay of ideas across the House tonight, not with the people making the decisions but with their proxies who have been sent in here to keep the debate on the boil, as it were, until such time as they can deal with it more decisively at a later stage.

We are dealing with a matter of fundamental human rights. We are great at lecturing the rest of the world about departures from human rights when it suits us. We are great at pointing out abuses in Central America, South Africa and Central Europe. We are the first to point out what is wrong with the way the rest of the world is run. We are great at saying we have some unique role to play in the manner in which Irish foreign policy is conducted through the auspices of the United Nations, but the United Nations set in place a convention in relation to the treatment of refugees. Whatever about the theory of ministerial co-operation with the Commissioner of the United Nations in relation to refugees, the facts are very different. The fact is that this country does not vindicate the rights of refugees adequately and, in effect, unreviewable decisions are being made as a matter of course in regard to people seeking refugee status here. Moreover, the statistic that was trotted out here by Deputy Foley that only 5 per cent of applicants are found to be genuine is not to the point. The figure may be 5 per cent or 10 per cent, but the relevant issue is whether any individual is included in that 5 per cent and by what criteria he or she is found to be included or excluded. That is the crucial issue, and no amount of bluster and hot air in this House can take away from one fundamental fact, that is, when it comes to according people basic constitutional protections under our Constitution, and as a matter of international law, one must establish fair procedures, one must be willing to set down some system by which a decision made can be reviewed at a time when someone can do something about it if is wrong.

An Ceann Comhairle

Will the Deputy please move the adjournment of the debate?

Mr. M. McDowell

I should have indicated at the beginning of my contribution that I wish to share my time with Deputy O'Donnell.

An Ceann Comhairle

I am sure that is satisfactory.

Debate adjourned.