Order of Business. - An Bille um an Triú Leasú is Fiche ar an mBunreacht, 2001: Céim an Choiste agus na Céimeanna Eile. Twenty-third Amendment of the Constitution Bill, 2001: Committee and Remaining Stages.

Before Committee Stage commences, I will deal with a procedural matter relating to Bills to amend the Constitution. The substance of the debate on Committee Stage relates to the wording of the proposed constitutional amendment contained in the Schedule to the Bill. The sections of the Bill are merely technical. Therefore, in accordance with long standing practice, the sections are postponed until consideration of the Schedule has been completed. As I understand there is general agreement to this proposal, I ask the Minister for Foreign Affairs to formally move, in accordance with Standing Order 114, that consideration of sections 1 and 2 of the Bill be postponed until the Schedule has been disposed of.

I move:

"That consideration of sections 1 and 2 of the Bill be postponed until the Schedule has been disposed of."

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.
AN SCEIDEAL.
SCHEDULE.

Tairgim leasú a 1:

I gCuid 1, leathanach 7, i ndiaidh líne 4, an méid seo a leanas a chur isteach:

"2º Ní dhéanann aon fhoráil atá sa Bhunreacht seo aon dlíthe a d'achtaigh, gníomhartha a rinne nó bearta lenar ghlac an Stát de bhíthin riachtanais Reacht na Cúirte Coiriúla Idirnáisiúnta. a chur ó bhail dlí.",

agus

I gCuid 2, leathanach 7, i ndiaidh líne 7, an méid seo a leanas a chur isteach:

"2º No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the Statute of the International Criminal Court.".

I move:

In Part 1, page 6, after line 4, to insert the following:

"2º Ní dhéanann aon fhoráil atá sa Bhunreacht seo aon dlíthe a d'achtaigh, gníomhartha a rinne nó bearta lenar ghlac an Stát de bhíthin riachtanais Reacht na Cúirte Coiriúla Idirnáisiúnta. a chur ó bhail dlí.",

and

In Part 2, Page 6, after line 7, to insert the following:

"2º No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the Statute of the International Criminal Court.".

This amendment involves the inclusion of an additional sub-article. As it stands, the Schedule proposes that the clause "The State may ratify the Rome Statute of the International Criminal Court done at Rome on the 17th day of July, 1998.", be inserted into the Constitution. Amendment No. 1 provides that a further sub-clause which states "No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the Statute of the International Criminal Court.", should be inserted.

At first glance it might appear that my proposal is lawyerly in nature and perhaps that is the case. At the same time, however, we are dealing with the basic law of the State in the form of an amendment to the Constitution. Unfortunately, we are dealing with it in a somewhat hurried fashion. The difficulty I face in agreeing to the time frame proposed by the Government is that while I am enthusiastically in favour of ratifying the Rome Treaty, as Opposition spokesperson I want to see it done properly. It was that concern which led me to table this amendment.

I am pleased that the Chairman of the All- Party Committee on the Constitution, Deputy Brian Lenihan, is present. He is aware that a view emerged at meetings of said committee that there is an absolute need to take proper care and spend adequate time reflecting on how to amend the Constitution. We are running contrary to that view in respect of this Bill.

Arising out of my enthusiasm to see the Statute of the International Criminal Court ratified, I was moved to draft a Bill similar to that before us and I was obliged to consider the mechanics of what would be necessary to ensure that the provisions of the statute would be taken on board in a proper manner. When the Government produced this legislation, I discovered it followed the text of the Bill I introduced but that it excluded the provision set out in amendment No. 1. There may be good reasons for that and I am anxious to hear the Minister's comments in that regard.

When I drafted my Bill, I took advice from a respected senior counsel and his assistants. When considering the wording contained in the Constitution we must also consider why there is a need to amendment the Constitution. The basic issue is that this House should ratify the Rome Statute to establish the international criminal court. The Bill does not ratify the statute, however, it will amend the Constitution to enable us to ratify the statute. Why is it necessary to amend the Constitution? I have not seen the Attorney General's advice, but yesterday the Minister stated that because Article 34.1 of the Constitution is phrased in a particular way we must amend the Constitution. The article in question provides that "Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution. . . ".

I accept the Attorney General's advice that because of the wording used in Article 34 it is necessary to amend the Constitution to enable us to give jurisdiction to the international criminal court. It should be borne in mind, however, that apart from granting that jurisdiction we will also, as the Taoiseach made clear, introduce legislation and adopt administrative measures to enable us to ratify the statute. As we have not seen that legislation I cannot judge its constitutionality, although I gather it may be akin to the International War Crimes Tribunals Act. As regards the administrative measures, I can only go on what the Taoiseach said, namely, that we need administrative measures. However, I do not know what they are.

If we examine what was done when we undertook other international obligations, we ensured there would not be a problem by including a provision akin to the clause I am suggesting we should include for the International Criminal Court. We had to make provision in our Constitution for the Treaty of Rome, which set up the Common Market, and subsequently for the treaties amending it to become a member of the European Economic Community and to ratify the European treaty on European Union which was signed at Maastricht and the Treaty of Amster dam which amended the treaty on European Union. We also included a provision which states that no provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities. There is precedent in the Constitution for such a proposal.

We do not have much time because of the Government's schedule to properly reflect on this proposal. We are ratifying a statute which sets up an International Criminal Court. The name implies that people will be subject to international criminal law. They may have charges of genocide or other such crimes levelled against them. We must be sure that what we do is watertight. The Minister might say I am adopting a belt and braces approach and perhaps that is true. I am not a constitutional expert but an Opposition spokesperson making a constructive suggestion on how to not only improve the Bill, but to make it watertight. I tabled this amendment in a genuine effort to be constructive in the short time available to us to pass this Bill in the House.

Having listened to Deputy Jim O'Keeffe, I can see a strong case for the wording of the suggested referendum to be co-terminous with the suggested legislation which would arise on ratification. However, he might want to elaborate on some aspects of his amendment which are interesting. The remit of the new court cannot be regarded as an extension of the Irish legal system. It involves a transfer of jurisdiction. There is the principle of the acceptability of the transfer of jurisdiction to a new institution for which the jurisprudence has been debated. The applied form of that jurisprudence will probably take place in the legislation but it is circumscribed by the terms of establishment of the court which, for example, allow a seven year derogation in relation to certain rights of defence and arrest for member countries which ratify on the basis of times of war or crimes committed on their territory. We have been assured by the Minister, although it is not in legislative form, that Ireland will not exercise that derogation from the general principles.

I want clarification on this issue. I support Deputy Jim O'Keeffe on the principle that these matters would be clearer if the necessary legislation was available at the same time as the consultation with the public is taking place. I also see a problem in so far as the amendment suggests that no provision of this Constitution "invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the Statute of the International Criminal Court". I am not sure my non-legal interpretation of the statute is in sufficient finite form if one wants precision in relation to the constitutional amendment. One could perhaps secure the best precision by a simple assent to ratify. If, however, one was to go further and say that anything that might be con cluded in an entity which is still evolving, for example, acts of regression which are still a matter of debate, I am not sure one would not create a further problem. I welcomed the assurance we were not operating a caveat in terms of years and its application. The best position for us all to take is one in which the court is as strong as possible. We discussed that yesterday and there is unanimity on it.

I am also worried about another issue. What type of question will be put to the public in the referendum? Is it a simple permission to ratify or a permission to ratify with the understanding that there is a transfer of jurisdiction which, in some respects, is not closed? The Minister might refer to that in his reply as it is important. A principle of our foreign policy, with which I disagree to some extent, is that we do not ratify in advance of legislation being in place. Different Governments, including those of which I was a member, have always argued that until all the required legislation is in place for compliance, one does not ratify. That is a principle and a decision of the Government. However, it is an excessively conservative view. There are exceptions around the world which would prove me wrong where it is the most cynical act to ratify and then to ignore the implications of what one is doing. It is a high moral position but it creates a certain tardiness in relation to achieving the result.

Where does that leave us? Is this a significant departure from that policy? It is a legitimate argument for the Minister to say it is the type of risk one must take. However, it is not as much a risk as an act of trust in how the court will shape itself and evolve. Its jurisprudence is being challenged by other countries but I do not have a difficulty with it. I am a little worried, having seen Deputy Jim O'Keeffe's amendment, at the degree of imprecision which might be sown in the public mind as it answers a question on whether it should ratify it. My advice to the public is unequivocal; we should vote "yes".

It would have been better if the accompanying legislation had been co-terminous with the amendment to the Constitution. It is important in relation to the administrative procedures. We discussed yesterday how to deal with those responsible for atrocities of one kind or another. However, we did not spend as much time discussing defence, which is a legitimate legal concern. These procedures will need to be specified in relation to the movement of a person from this jurisdiction to the remit of the court. The relationship, for example, of a national prosecutor to the prosecutor the court might bring into existence and the resources and procedures which will follow must also be specified. The phrase used in the drafting of the speeches is as clever as one would expect. What is meant by compatibility? That question is probably answered in the specified administrative procedures. I would like clarification from both Deputy O'Keeffe and the Minister. There may be a downside to the amendment, which may create an atmosphere of imprecision.

I support the traditional policy that we only ratify where we have sincere intent to implement. That is the point of departure in our State practice on ratification. There are so many states around the world that ratify treaties with abandon and do not proceed to take the steps to secure their effective implementation in their own legal system. It is good that Ireland has always had this policy. While it can be frustrating for practising politicians because of the delay it causes in the implementation of measures, on balance it is a sensible policy.

Deputy Higgins also raised a question about the accompanying legislation. Given that we will have a referendum on this, people will want to know what they are voting for. However, the accompanying legislation here would be the Rome statute and the legislation to implement this measure will be a relatively short provision which would contain as a schedule the entire Rome statute. In effect, the legislation is before the people. All that is not before the people are the domestic legislative arrangements providing that the Rome statute shall now be part of the law of the State. I have no difficulty with this referendum on the accompanying legislation because the substance of it is already before the people. The same is true of the referendum on the Nice Treaty.

However, the substantive amendment before us is a very interesting one. I do not question the spirit in which it has been put forward by the principle Opposition spokesperson, but I have very considerable reservations about it. I do not want those reservations to be taken as a criticism of the spirit in which it has been put forward. I appreciate the reason it was put forward. It was suggested by way of analogy with the existing provision in relation to our membership of the European Union. It is a very far reaching amendment because in its terms it provides that no provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the Statute of the International Criminal Court.

I am not clear whether, under the Rome statute, the International Criminal Court will have power to enact any law. Where the wording envisages laws being enacted by the International Court, I would have thought the law was already defined in the Rome treaty. That is the substantive law that we are importing. There is no fresh legislation that has to be protected.

The effect of this amendment is to remove from all constitutional scrutiny any such law, although I question whether any such law might exist. In a more serious way, it would also exempt from any constitutional control, acts done or measures adopted by the State which are necessitated by the statute.

It is envisaged in the statute that some investigations will be carried out by the domestic enforcement agencies in particular states. For example, the Garda Síochána could be called upon to make investigations into a major war criminal who could be in hiding in this jurisdiction. Far be it from me to protect the rights of international war criminals, but were this amendment pressed it would mean that such a person would not have any right to invoke the normal protections under the Constitution that any other suspect under investigation is entitled to invoke.

This is a very far reaching amendment. I am not aware that this type of amendment was inserted when we ratified the British Irish Agreement. We did not exempt the effects of that agreement in our own legal system from all Constitutional control. If we were to adopt this amendment, we would exempt any consequential effects, within this jurisdiction from any constitutional scrutiny. We did that for the European Community legislation because when we joined the EEC in January 1973, we accepted a very wide ranging corpus of law that involved not just treaties but treaties that conferred law making and enforcement powers on institutions. These treaties had already been interpreted in 1973 as meaning that the Community was a new unique legal order, which intervened in a direct way in the legal system of each member state of the European Community.

This treaty is in the Rome statute so it is not a statute of the same character as the European treaty. In order to observe our obligations under the Rome treaties, it was necessary for us to give that degree of additional protection to the effects of those treaties in our own legal system. If that had not been done at the time there was the danger that constitutional grounds could have been invoked to invalidate Community legislation and a conflict would have arisen between the Irish legal order and the Community legal order. I do not believe we are in the same position on this treaty.

There is a further point, which I mentioned in the debate on the Nice Treaty. We are mistaken in the view that that clause in our European obligations is the central clause which permits the participation by the State in the European institutions. The authority, given by the people to permit the State to ratify the Rome treaties and since then the Maastrict, Amsterdam and Nice arrangements, is what imports the legislation into the State. That is what provides the constitutional protection.

When the Supreme Court considered the Single European Act, under the Crotty case, it did not rule the provisions on qualified majority voting and creating additional competences for the European Union infringed the Constitution. The Single European Act was not a necessitated obligation; it was a fresh international obligation. Nevertheless the Supreme Court said that it was within the overall intention of the people when they authorised us to join the European Community that we could enter into an amending treaty of this character.

The wording put forward by the Minister is clear and enables the people to give a general authorisation to the State to implement not just the Rome statute but any necessary amendments to the Rome statute in the future which fall within the overall intention or essential character of what the Rome statute represents now. The wording is sufficient to cover not only the obligations in the existing Rome statute but amending obligations that may be required from time to time. This may become a very busy tribunal if a very large number of international war criminals and offenders against human rights are brought to book. We may have to increase the number of judges and an amending statute would be required for that. I do not believe that would require a fresh referendum. The authority conferred here is sufficient to enable the State to implement this treaty and to uphold its international obligations.

I understand the spirit in which Deputy O'Keeffe has put forward his amendment, but to take the further step advocated by him could entail some constitutional danger. We would then be telling the people not alone are we looking for authority to establish this court and to transfer judicial power to it, we are also providing that all of the effects of this court in the domestic legal order are entirely immune from scrutiny on constitutional grounds. When the Garda act on foot of this court, they are not obliged to respect the constitutional provisions relating to the liberty of the citizen or the inviolability of the dwelling place; they are not obliged to respect the constitutional provisions regarding the admission and obtaining of evidence. That would be a very far-reaching step. We took that step in regard to the European Communities because the obligations were so far-reaching that we had to prevent the possibility of a collision between our domestic legal system and the Community legal system. We had to establish natural justice and fundamental rights there on a Community basis. We accepted that our tradition on fundamental rights and due process would not apply to the Community legal order. We agreed to fight that battle in Brussels also.

It is not necessary to go that far in relation to this Statute. While I accept that the defence of the rights of the potential international war criminal is not a very popular proposition, nevertheless it would be open to misrepresentation if we included a provision of this character in a referendum. It could lead people to draw the conclusion that we are looking for very broad powers which are not required by the necessity of the case. Deputy O'Keeffe has raised a very interesting point. The phrase regarding the Acts which are necessitated has haunted our whole interpretation of the other provision and what it means. I am delighted he tabled this amendment which has provided us with the opportunity of looking at that issue again. I am not sure we have dispelled public confusion on that issue yet.

It is a matter one must weigh up on the scales. On balance, it is a legitimate point to raise but we would be better, in terms of clarity of the proposal, to leave it as it stands.

I, too, understand Deputy O'Keeffe's motivation in tabling this amendment. It is right and proper that we ventilate this issue to ensure we find the best way forward. Deputies Lenihan and Michael D. Higgins have made very relevant points on this amendment which lead me to believe it would not be helpful to include it for a number of reasons.

We are all conscious that a constitutional amendment is a serious matter. It is important that we get the wording of any such amendment right. We have given Deputy O'Keeffe's amendment very careful consideration. He indicated his intention to take this approach during discussion of the Private Members' Bill and we have had some time to consider this issue and its implications. The proposed wording is clearly based on Article 29.4.7º of the Constitution, which was adopted in a totally different context – our membership of the European Union and of the Community. What is known as the "necessitated by" formula was deemed necessary to import the very large European Community acquis into Irish law. As has been said, the European Community is a legislative community and as such EU directives have to be given legal force in Irish law and European law has supremacy over domestic law. Such a formula would not therefore be appropriate here. As the history of Article 29.4.7º has shown, it would invite constitutional challenge and therefore has the potential to hinder the State in the execution of its obligations under the Statute.

The author of the "necessitated by" formula in its original manifestation was former Taoiseach Garret FitzGerald. It is a matter of regret to him that he put forward this proposal given the jurisprudence which has developed around this formula in terms of its interpretation by the Supreme Court in Crotty and other cases. While the intent and motivation behind the tabling of this amendment is understandable, I take it that Deputy O'Keeffe is seeking to include an explicit indication in Irish law that we are pro-actively anxious to ensure we meet our obligations under the statute. The jurisprudence which has built up around the "necessitated by" formula, could lead to greater confusion than clarity. Were it to be adopted, it would also invite a debate on the referendum which would clutter and render more difficult in a complex way the basic issue, the incorporation of the Rome Statute into our constitutional law. It creates a line of argument which is not central in terms of people's understanding of the issues and would create a distraction by those who would seek to confuse the debate. Such a debate would not be necessary in practical terms.

I appreciate the reason Deputy O'Keeffe tabled this amendment but I am advised that the enabling provision is sufficient because in enabling the State to ratify the statute it is implicit that the State may enact such laws and do whatever is needed to fulfil its obligations. An additional provision is not necessary as this issue is encompassed in the first provision. I have received very strong and clear advice in that regard. That is not to suggest that an argument cannot be made for a "necessitated by" formula, an execution type wording formula or an "in consequence of" formula which, for those who are particularly familiar with the jurisprudence which has arisen in our constitutional law around those issues, is something that has been the subject of considerable debate.

The ICC is complementary to the domestic court. More precisely, the ICC may intervene in the following circumstances: where there has been a total or substantial collapse of or unavailability of the domestic judicial system – not something we hope to see in this jurisdiction; where domestic proceedings are being conducted for the purpose of shielding the accused from criminal responsibility; or, where there has been an unjustified delay in domestic proceedings which is inconsistent with the intention to bring the person concerned to justice. Under Article 19 of the Statute, it is for the International Criminal Court to decide whether it is competent to intervene. The main involvement which the State will have in this court will be to provide assistance under Part IX of the Statute regarding the surrender of persons charged, evidence gathering and so on. Deputy O'Keeffe's concerns lie in the practical area of the operation of the jurisdiction of the International Criminal Court hence his wish to render explicit, through the insertion of this amendment, our intent to meet our obligations under the statute.

We must decide whether we include a simple insertion in the Constitution permitting the State to ratify the Statute as was done regarding Article 29.4.8º in respect of the Luxembourg Agreement or whether we, in addition, provide that no provision in the Constitution invalidates laws enacted, Acts done or measures adopted by the State which are necessitated by the statute – that is known as the "necessitated by" formula. After full consideration, and the Government acts on its legal advice, it is considered that the amendment should include only the single provision that is before the House, that is, that the State may ratify the Rome Statute of the International Criminal Court done at Rome on 17 July 1990.

The view is that any "necessitated by" formula is neither necessary nor appropriate to enable the State to comply with its international obligations under this statute. That is the basic point. The "necessitated by" formula was deemed necessary to import a very large EECacquis in 1972. It is a legislative Community with directives and regulations, those have to be given legal force in Irish law, and European law has supremacy over the domestic law. Using such a formula in this circumstance, as Deputy Lenihan has indicated, may fetter challenges to the implementation of the statute obligations, especially where it involves a contravention of a constitutional right in a matter not required by the statute.

It is important to recognise that while we hold no brief for war criminals, a person would have recourse to our domestic judicial system. It is an issue to which we would be prepared to accede on the basis that, while we incorporate willingly the international criminal court, there is a human rights perspective and a recourse to judicial review or challenge. We must do this in a way which is legitimate within that framework, while not providing in the Constitution a further amendment which would invite constitutional challenge. This is because the jurisprudence has been so complex and argumentative that it would be used as a means of delay and not in a proper fashion. That is a distinction which we must take into account without compromising the integrity of the State position in enthusiastically adopting the statute, and making our agencies and officers available to co-operate in all circumstances with the prosecutor or the court in any given set of circumstances.

That is the Government response to this amendment. I thank Deputy O'Keeffe for putting down the amendment. His is a legitimate point of view and one that should be raised in the House. For the reasons given and on the advice I have received, I ask the Deputy not to put the question but that is a matter for him. Deputy O'Keeffe's provision would not protect implementing legislation as this legislation would be passed before the State ratifies the Rome statute. It would, however, afford constitutional protection to legislation passed after the State becomes part of the statute where such legislation is necessitated by the statute. The broad provision that we are adopting allows for the incorporation of any subsequent amendment as well. This explicit further amendment is not required.

The Minister summed up the difference between us when he referred to the fact that I wanted to make explicit what he says is implicit in the single article that we are putting before the people. I may be accused of a belt and braces approach, but surely it is better to have explicit what the Minister says is implicit. We should consider what is going to happen. Deputy Brian Lenihan outlined the position of the war criminal who may be brought before the international criminal court and who will be dealt with in Ireland first. I accept the Deputy was not sympathising with any such war criminal but wanted to make sure that his or her rights would be fully respected. My concern is that if such a person is in the dock here, his or her lawyers will be looking carefully for a legal loophole. This area of the Bill is a loophole unless my amendment is included.

Deputy Brian Lenihan mentioned that a simple statute with the Treaty of Rome and the Schedule would be sufficient. Unfortunately, on a series of Dáil questions which I have tabled, that is not the response I have been getting. One reply from the Minister for Justice, Equality and Law Reform last November said that the Rome statute was a very complex instrument. It would require long and careful consideration to establish the precise legislative provisions required to ratify the statute. Nothing has emerged. Deputy Michael Higgins also referred to the fact that we do not have the supporting legislation before us, so we do not know. The Minister for Justice, Equality and Law Reform went on to say that even a cursory examination of the statute would give an idea of the complex issues to be dealt with.

This is another Minister talking about the complexity of the legislation required and he referred to the fact that there could be similarities with the International War Crimes Tribunals Act, 1998. The Minister, Deputy O'Donoghue, added that there will also be differences because the statute is a more complicated and comprehensive instrument.

The Government is a very broad church.

Indeed, and we are not referring to yesterday.

Mr. Hayes:

So we have come to learn.

This is not an exact science.

In a situation where there will be legislation which the Minister for Justice, Equality and Law Reform says is very complicated, and a situation where the Taoiseach says there will be administrative measures – what they are or how many there are I do not know – to underpin ratification of the statute, our job is to ensure that what has to be done will be fully covered by the Constitution. To go back to an earlier point made by Deputy Michael D. Higgins on the danger of imprecision, I fully accept that. My approach is quite the contrary. If we rely on the single provision proposed by the Government as giving the implicit constitutional power to introduce any necessary legislation and any necessary measures, then we are taking a leap in the dark.

If we were to make it explicit that any laws enacted or measures necessitated by the statute and adopted by the State are covered constitutionally, that would meet the precise objective to which we all aspire. We all want to ensure the court will be successful and will not be subject to constitutional challenge by any party called before it. The argument boils down to an explicitversus implicit approach.

We cannot easily return to the people on this issue if we get this wrong. I appreciate the point made about the words "necessitated by" and the difficulties which have arisen in regard to recent EU treaties. It is regrettable that wording was not given further consideration at the time; perhaps an Opposition spokesperson could have raised the issues I am now raising or the Supreme Court could have taken an different interpretation. However, I must accept our laws.

I do not envisage a new statute being introduced in regard to the International Criminal Court. Even if the words "necessitated by" were used, problems would not arise as a further statute is unlikely to be introduced. If such a statute were introduced, it could be necessary to hold another referendum. Changes and additions may be made to the existing statute. As Deputy Higgins pointed out, "aggression" may be added to its terms as it will be possible to make additions to the court's jurisdictional powers. Provision is also made for further conferences which may give rise to some expansion of the court's jurisdiction. These matters are already provided for in the statute's 128 articles.

I do not see any problem with the use of the words "necessitated by" although I may be proved wrong. If anything, those words may be too limiting and I should perhaps develop my amendment further. I am not convinced by the arguments against this provision. It would put us in a far stronger position to make explicit in the Constitution what the Minister suggests is implicit. If that is what it boils down to, it is surely better to be explicit.

It does not boil down to that.

Deputy O'Keeffe has come closer to the kernel of the issue on this occasion. Two issues arise from his contribution, one of which is the question of any further amendments to the Rome Statute. On the authority of the Crotty case, once the people enact the formula proposed by the Minister, the State will have authority to negotiate technical amendments to the Rome Statute and any amendments so negotiated will not require a new referendum. Indeed, were the formula proposed by Deputy O'Keeffe to be adopted, doubts could arise as to whether the State could do that. If changes were to be negotiated to the statute which would effect a fundamental change in its character, that would require a new referendum on the wording proposed by the Minister.

The principal issue addressed by Deputy O'Keeffe related to the "necessitated by the obligations" formula and whether it should be transposed into this context. The Minister for Justice, Equality and Law Reform stated that this implementing legislation involves complex, far-reaching questions. There is no doubt but that the Rome Statute will be a schedule to the legislation so what are the far-reaching issues which must be addressed? One is a simple provision stating that the statute is now part of the State's domestic law. As domestic authorities will be required to assist in the statute's enforcement, provisions would also be included to confer powers of search, arrest, entry etc. on the Garda as required. We are free to enact such provisions at this stage without making any constitutional amendment but if we do so and confer standard police powers on the Garda in regard to the investigation of new international offences and if we adopt the formula proposed by Deputy O'Keeffe, the exercise of those powers, which would be described in Acts of the Oireachtas, would be completely removed from constitutional provision. The formula he proposes states that "nothing in this Constitution may be invoked to invalidate". That effectively means we would be empowered to pass statutes conferring standard police powers which would be entirely removed from constitutional invalidation. That would be a very far-reaching step to propose to the people in the context of a measure which does not strictly oblige us to do hold a referendum. We would then be inviting the people to empower the Oireachtas not alone to implement the Rome Statute and any ancillary domestic legislation required but to entirely remove that legislation from constitutional control. I am not sure it would assist the public debate if we had to explain and justify such a proposition. That is my core objection to this proposal.

Former Taoiseach Garret FitzGerald, a then Opposition Deputy, proposed this formula at the time of the original decision to join the European Community and it has been misconstrued time and again during public discussion on the matter as implying that every fresh obligation into which we enter on the international plane requires a constitutional referendum. That is not what it means. It means that the obligations we undertake at any given point in time in the EU are immune from constitutional challenge. That would result in all of the measures taken to implement this statute being entirely removed from constitutional scrutiny. The question arises as to whether the court itself would be comfortable with that position or whether it expects the individual investigating authorities in particular states to entirely remove their standard domestic protections from the exercise of police powers in their jurisdictions. This is a far-reaching question and not one we should visit on the people on this occasion.

I listened carefully to the contributions made on this interesting amendment tabled by Deputy O'Keeffe. We are grateful to him for doing so as the amendment has facilitated a debate on a somewhat neglected principle of constitutional amendment. If Deputy Lenihan is correct in assuming that members of the public are aware of the matter about which they are being consulted, that is a strong argument for a short piece of legislation to which the statute would be appended as a schedule. Such legislation would allow Ireland to contribute to the court, draw up procedures for nominating judges etc. It would be possible to subsequently introduce or amend legislation in regard to the role of the Garda, the Army etc.

I do not see any merit whatsoever in the argument advanced by the Minister for Justice, Equality and Law Reform to the effect that this is such a complex matter than one cannot see the shape of the legislation until such time as one addresses all of the issues involved. There is a down-side to that argument, namely that it does not sustain Deputy Lenihan's position with which I agree. If the position he advances were the one on offer, I would not have any difficulty with it. Members of the public would know the full facts of the matter they were being asked to ratify and would be apprised of the certainties and uncertainties involved. I cannot understand why that approach is not adopted. As I listened to the reply given to Deputy O'Keeffe by the Minister, Deputy O'Donoghue, I began to think this will not be so wearisome in relation to how it works that the principles of the international court are almost being contravened by the consideration of how it would impact on our system. I said in my opening contribution that I share Deputy Lenihan's concern regarding the position of any citizen before the law in relation to certainty. I have a difficulty with the amendment in relation to certain words. Perhaps Deputy Lenihan is construing it too far when he suggests one is speaking about laws generated by the Statute of the International Criminal Court. I presume these are laws that are in response to obligations it is assumed would arise following the constitutional adoption. Leaving that aside, there is a real problem with the interpretation of the phrase "necessitated by the Statute of the International Criminal Court". With whom would one have this discussion? The problem about the Rome Statute, given its 50 year evolution from 1948, assisted by Trinidad and Tobago in the 1980s, including the meetings in Rome and the changes sought and so on, is with whom would one initiate the argument as to what constitutes necessity in relation to any provision of the statute? I am not a lawyer but, looking at it from outside as spokesman on foreign affairs, I would have to ask is this court an institution of the United Nations? If it is an institution of the United Nations, there is a law in place in relation to our United Nations obligations, which could handle some powers of investigation. However, this is not the case either in terms of its funding or operation.

Leaving aside matters raised on Second Stage, one of the difficulties that arises in relation to the future of this court is that of political abuse. This has already been revealed by those who have chosen not just to delay signing but refused to ratify. If that is the case, one is better off without the amendment. On balance, the ideal position is to put a simple proposal to voters, that is, permission to ratify and a clear indication of what is being ratified. On the practical arrangements in relation to the text which will be put to the public and the setting up of the referendum commission, if the commission is to do a summary on what the Minister, Deputy O'Donoghue, says is so complex that it baffles even his great brain, one wishes the commission well. Would it not assist everyone if the legislation was published before the voting takes place? In that case, one could refer to the published legislation, which would be a good way to run the referendum. I cannot understand why that case is not accepted by Government, even if it means delaying the date for the referendum.

Some 27 countries had ratified in January – perhaps it is now 30 – while 60 countries need to ratify for the provision to come into effect. We are not holding up anything internationally by treating it in a particular way. If the referendum is held on the basis suggested here, it is inviting the public to harbour fears. Perhaps Deputy O'Keeffe disagrees with me. This creates further fears in the public's mind which may not be real. I am certain they are not real in that nothing by way of the constitutional screen shall stand before any action or requirement of a court whose procedures have not been seen. I worry about that aspect for another reason.

Deputy O'Keeffe's amendment seems to take away the constitutional screen. It is a principled position which will allow the court to be strong and have no impediment in its way. Those accused of breaches should not seek refuge in the tickets of the law, so to speak. However, the tickets are our tickets. It is interesting that as the court is interpreted in the different countries that have signed up and ratified, they have an evolved jurisprudence which is based on certain principles of certainty which are very old. These relate not just to what one is accused of, but to process. That argument is one of the few decent pieces of the liberal agenda which was not distorted by those who came later and ruined it by applying it to economics. The principle of certainty is a good one and the Constitution gives expression to that. On balance, if we are in the unsatisfactory position of not having the legislation available before the date of the referendum, it would be better to put a simple suggestion to the people rather than an elaborated one. Therefore, I find it difficult to support the amendment.

In my attempt to be magnanimous, perhaps Deputy O'Keeffe misinterpreted my position as saying that this is an explicit and implicit interpretation of the same thing. That is not the case. My basic point was that of the principle or formula which was deemed to be necessary in 1973, and about which its author now has grave doubts. This primarily related to the importation of a body of law to be incorporated into domestic policy. That is not the situation here. A better analogy would be how we incorporated the patents issue, which is what we are doing here. A more secondary proposition is that the full extent and effect of the Article 29.4.7º formula is not completely certain. In other words, what will be made explicit is not simply showing our approval to assist in every way possible. There is a jurisprudence which has arisen out of the necessitated formula which leads to uncertainty in terms of full extent and effect as it would apply here. Such a formula might permit more than is necessary for the State to comply with its international obligations.

This view is based on the substance of the Rome Statute which is likely to involve powers of compulsion and surrendering of Irish citizens abroad for extremely serious crimes, which is a theoretical possibility. Such powers of compulsion notoriously involve risks of infringement of fundamental rights. The suspect can challenge the admissibility of illegally obtained evidence at the International Criminal Court. The statute contains comprehensive and due process requirements. No doubt the rules of procedure will spell out further such requirement when they come into force. In so far as the State is implementing obligations under the statute, the statute should not give permission to diverge from constitutional norms except in so far as that is required by the statute. This is, if you like, the perspective that has been incorporated. The need to be seen to fully comply is, of course, important in terms of our international reputation. The need to accord to citizens, or to anybody in this territory who may be sought, the normal constitutional rights domestically, as would be available in the procedures were they to go direct to the international criminal court, is another consideration. We must determine the best way of including those legal principles or legal concerns in a way that is pragmatic, clear and certain and in a way which does not mean that, in our attempt to show our explicit enthusiasm for this concept, we end up giving permission to diverge from constitutional norms, except in so far as required by the statute. That is the issue when it is all boiled down. For the reasons I have given in my previous contribution, we take this view. The strong legal advice is as I have given.

The European patents agreement, which provides for referring a matter, for example, to the ECJ and for an appeals court, required a constitutional amendment and we are proceeding on this basis in the same way. The idea of ceding sovereignty to the court on these issues, as set out in statute, is what is involved here. That is a closer analogy in terms of how one would constitutionally give expression to that in our Constitution than is the case necessitated by formula which really belongs to the importation of thisacquis in the EU which is a much broader issue.

Treaties will enjoy the presumption of constitutionality and if they are enacted in legislation, they will certainly do so. This was stated in the Supreme Court in the Crottyv. An Taoiseach case. It has not been normal in the case of other international agreements to enact any constitutional amendment or to give any protection to them above what is available under the law. It is notoriously difficult to predict the facts which may give rise to an allegation of unfairness amounting to unconstitutionality. If a particular treaty were to impact on the rights of an individ ual as to deprive him or her to a serious extent of a constitutional right, it seems hardly unreasonable that they should be able to invoke the provisions of the Constitution. Such cases are, in any event, extremely rare – we know that. We are having a discussion, if you like, on the principle of the matter.

The problem arising, as I have said, from membership of the European Communities was different. I do not know if there is anything more I can say about it other than that we have tossed it around. It is good that we have ventilated this argument and have had a discussion on it. I am grateful to the Deputy for raising it. For the reasons I have given, I am not in a position to accept the amendment.

It seems there is an honest difference of view on what may be seen by many to be an esoteric point, although I do not believe it is. It is a basic constitutional point. I would like to cover a few of the issues raised in these last contributions. I understand Deputy Higgins's point that he wants things to be precise. Precision and certainty are very important in the law, but precision and certainty are in the Rome statute – in the 128 Articles setting up the international criminal court. We are adopting every one of those Articles – no more and no less. That is my starting point.

I have looked through the document and, on the face of it, it looks like very heavy, complex stuff but, in fact, it makes a lot of sense and is very well put together. It is a product of years of work on the part of the negotiating bodies. I want us to adopt it exactly as it is – no more and no less. To do that, we must amend our Constitution. That is where I have to point out my major difference with Deputy Lenihan, in particular. He argued his point well but he is entirely wrong in the point he made. He said that if my amendment is accepted, the exercise of the powers would be entirely removed from constitutional invalidation. I say exactly the opposite. If my amendment is not accepted, the approach could be then constitutionally suspect and that is where I have a difference with Deputy Lenihan. We leave open the road to constitutional challenge unless we provide that laws enacted, which have been necessitated by the Rome statute, are constitutionally watertight. That is the reason for the amendment. I listened very carefully to the contributions and all were well made, but I cannot accept the argument from the Government benches.

There is one further point and it arose in the references to the Crotty decision and the need for the amendments to the Rome Treaty, and to Maastricht and Amsterdam, to be made by way of referenda. I do not see that situation arise in relation to the Rome statute and the international criminal court because there is specific provision within the statute. Article 121 covers the position in regard to amendments. If we adopt the Rome statute, we adopt Article 121 which provides for amendments and the procedure by which amendments will be made. In that situation, we are not moving into a Maastricht, Amsterdam and Nice situation and a Crotty type decision. We adopt the statute in its entirety, including the provision for amendments in Article 121.

On that basis, there is an honest difference of view on this. It was important to raise this point. I am not convinced by the Government arguments that this provision should not be included. I do not think there is any danger of the public being confused. I will have words with the Minister about a glorious proposal in regard to the Nice Treaty and the way that is phrased but that is for another day. The political will is there to adopt the Rome statute. We want to see the international criminal court set up and to be in a position to ratify it. Above all, we want to ensure that once it is ratified and set up it will be effective and that it will not be open to constitutional challenge here. To ensure that it is constitutionally watertight, my amendment should be accepted.

Cuireadh an leasú.

Amendment put.

Barnes, Monica.Bradford, Paul.Browne, John (Carlow-Kilkenny).Bruton, Richard.Burke, Ulick.Carey, Donal.Clune, Deirdre.Connaughton, Paul.Crawford, Seymour.Creed, Michael.Deasy, Austin.Durkan, Bernard.Farrelly, John.Finucane, Michael.Fitzgerald, Frances.Flanagan, Charles.Gormley, John.

Hayes, Brian.Higgins, Jim.Kenny, Enda.McCormack, Pádraic.McGahon, Brendan.McGinley, Dinny.McGrath, Paul.Mitchell, Gay.Naughten, Denis.Neville, Dan.Noonan, Michael.O'Keeffe, Jim.Perry, John.Reynolds, Gerard.Ring, Michael. Stanton, David.

Níl

Ahern, Bertie.Ahern, Dermot.Ahern, Michael.Andrews, David.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brennan, Séamus.Briscoe, Ben.Callely, Ivor.Coughlan, Mary.Cowen, Brian.Cullen, Martin.Daly, Brendan.Davern, Noel.de Valera, Síle.Dennehy, John.Doherty, Seán.Ellis, John.Fleming, Seán.Flood, Chris.Fox, Mildred.Gildea, Thomas.Hanafin, Mary.Haughey, Seán.Jacob, Joe.Keaveney, Cecilia.Kenneally, Brendan.Killeen, Tony.

Kirk, Séamus.Kitt, Michael P.Kitt, Tom.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McDaid, James.McGuinness, John J.Martin, Micheál.Moffatt, Thomas.Molloy, Robert.Moloney, John.Moynihan, Michael.Ó Cuív, Éamon.O'Donnell, Liz.O'Hanlon, Rory.O'Keeffe, Batt.O'Keeffe, Ned.O'Malley, Desmond.Power, Seán.Roche, Dick.Ryan, Eoin.Smith, Brendan.Smith, Michael.Treacy, Noel.Wallace, Dan.Wallace, Mary.Walsh, Joe.Woods, Michael.Wright, G. V.

Tellers: Tá, Deputies Bradford and Hayes; Níl, Deputies S. Brennan and Power.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.
Tairgeadh an cheist: "Gurb é an Sceideal an Sceideal a ghabann leis an mBille."
Question proposed: "That the Schedule be the Schedule to the Bill."

The Irish version of the Schedule states "Tig leis an Stát Reacht na Róimhe den Chúirt Choirúil Idirnáisiúnta, a rinneadh sa Róimh" while the English translation is "The State may ratify the Rome Statue of the International Criminal Court done at Rome". The usual translation of "a rinneadh" in Schedules of this nature refers to "made". What is the reason for this infelicitous transition from "made" to "done" in the text?

Mr. Hayes:

Dublin parlance.

I understand it is the usual way of transposition.

It is not a matter of great import, but it is not as general or usual as the Minister may think if he examines other statutes. I recommend a more felicitous translation in the future from the first language.

I note the Deputy's comments.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.