Dáil Éireann debate -
Wednesday, 26 Jun 2002

Vol. 553 No. 6

Treaty of Amsterdam: Motions.

Minister for Justice, Equality and Law Reform (Mr. McDowell)

I move:

That Dáil Eireann approves the exercise by the State of the option, provided by Article 3 of the Fourth Protocol set out in the Treaty of Amsterdam, to notify the President of the Council that it wishes to take part in the adoption and application of the following proposed measure:

a proposal for a Council Decision concerning the signing of the Agreement between the European Community and the Government of the Special Administrative Region of the People's Republic of China on the re-admission of persons residing without authorisation,

a copy of which measure was laid before Dáil Éireann on 21st May, 2002.

I will first refer to some of the remarks which were made on the Order of Business regarding the sequence of events that has led to four matters concerning the EU being dealt with this morning. As will become apparent in the course of this morning's proceedings, the four particular measures which are different from one another fall to be discussed today in circumstances of urgency which were not of my creation. Deputy Quinn rightly stated that we should be in a position to give adequate scrutiny to matters involving family law, particularly when dealing with two matters which arise later on the Order Paper. Those are sentiments with which I agree entirely. The position I was faced with, which Members will appreciate, is that if we did not opt into the discussion and drafting process for those measures before a date in August, we would be prevented from participating in the discussion process in its entirety. Therefore, the dilemma I found myself faced with was that I had to choose between opting out of the discussions because there was not enough parliamentary time to pass the two motions which are before the House, or allow other people to decide the substance of the proposals and give Ireland an opt-in or opt-out choice at the end of the process, or to give this House an opportunity to give Ireland the option to participate in the discussion and formulation stage of the two measures which come later this morning.

On balance, I thought it more democratic, though unsatisfactory, to give the House the opportunity to look at the substance of what is being discussed regarding those matters, even though I accept that adequate notice was not given to the House and that the amount of time allowed to consider these matters has been curtailed. As the Taoiseach said, it would be more satisfactory if a committee of the House was up and running and able to scrutinise European instruments and proposals, rather than having a debate which is necessarily more formal and less detailed than might otherwise be the case.

I ask Members to accept that I am not trying to trample over the House. I was faced with a dilemma, particularly regarding the two later measures, that we would not play any part in their negotiation because the House had not had adequate opportunity to consider whether it really wanted to be part of the negotiations. On balance, I thought it was fairer to afford the opportunity to consider an opt-in at this stage rather than at a later stage.

I thank the House for making time available to discuss the exercise by the State of the option under the Fourth Protocol to the Treaty of Amsterdam on a proposal for a Council decision concerning the signing and conclusion of a re-admission agreement between the European Community and the Government of the Hong Kong Special Administrative Region of the People's Republic of China. I favour the scrutiny role of the Oireachtas in matters such as this.

The subject of this agreement which is the re-admission of persons residing without authorisation, falls under Article 63 of the treaty establishing the European Community. This is part of Title IV of the treaty which was added by the Treaty of Amsterdam in 1999. Title IV deals with measures in the area of visas, asylum, immigration and other policies related to the free movement of persons. The Amsterdam treaty conferred powers on the Community in the field of re-admission.

The application of Title IV to Ireland is subject to the provisions of the Fourth Protocol to the Treaty of Amsterdam. Ireland is not automatically a participant in measures under Title IV unless we exercise an option provided for in the protocol. Under the terms of the protocol we have three months from the date a proposal is presented to the Council to exercise the option to take part in the adoption of the proposed measure. We may also exercise the option at any time after a measure has been adopted by the Council. Article 29.4.6º of the Constitution provides that, in order to exercise the option, the prior approval of both Houses of the Oireachtas must be obtained. It is with a view to seeking this approval that I am before the House.

There are two Council decisions proposed and therefore there are two motions before the House. One decision concerns the signing of the agreement and the other concerns the conclusion of the agreement by the Council. As the subject matter of both proposals is the same, I propose to deal with both of these matters together. The two motions may be discussed separately if Members wish.

Re-admission agreements are a significant feature of international co-operation in the field of immigration. Indeed a re-admission and return policy is recognised internationally as an integral and vital element in the fight against illegal immigration. Ireland has been aware of the need for such agreements and in recent years has negotiated a number of bilateral re-admission agreements. To date such bilateral re-admission agreements have been signed with Romania, Poland, Nigeria and Bulgaria.

The proposed Community re-admission agreement with the Hong Kong Special Administrative Region which is before the House is the first such agreement to be negotiated to a conclusion by the European Commission on behalf of all member states. The exercise of the option will allow Ireland to be a party to the agreement.

Community re-admission agreements form part of the European Union's broader aim of developing a balanced, coherent and common approach towards immigration and asylum. Apart from Hong Kong, to date the European Commission has been authorised to negotiate re-admission agreements with Russia, Morocco, Pakistan and Sri Lanka and the Special Administrative Region of Macau. The re-admission agreement with Hong Kong will be the first to enter into force.

I fully support the view that the return and re-admission of third country nationals who are illegally resident in the EU must be an integral part of our common immigration and asylum policy. Re-admission agreements involve reciprocal undertakings by the European Union and third country partners to co-operate over the return of illegal residents to their country of origin. This is not simply one way traffic. The EU is adopting the same obligations as the Hong Kong Special Administrative Region. The comprehensive approach which has been put forward focuses on the adoption of common procedures for the legal admission of third country nationals. However, the European Commission has emphasised that these policies must be accompanied by measures to combat illegal migration and, in particular, smuggling and trafficking of human beings and the return of persons who are illegally present in the EU.

In its recent publication entitled Communication on the Common Policy on Illegal Immigration, the European Commission has underlined that the return and re-admission of third country nationals who are illegally resident in the EU must be an integral part of the common policy.

I will now outline the principal features of this agreement. It should be noted that the re-admis sion obligations set out in the agreement are drawn up in a fully reciprocal way. Article 2 states that Hong Kong shall re-admit its permanent residents and former permanent residents provided that they are validly shown to be so.

Article 3 states that Hong Kong shall readmit persons of another jurisdiction under certain specified circumstances. The obligation to readmit persons of another jurisdiction arises where, at the time of entry into a member state, such persons held a valid visa or residence authorisation issued by Hong Kong or, having entered the territory of Hong Kong, they proceeded to enter unlawfully the territory of a member state.

Article 4 deals with the re-admission by member states of the Community of their own nationals. Proof of nationality or former nationality is required. If necessary, member states will be required to issue a travel document. Article 5 provides that a member state shall re-admit persons of another jurisdiction in specified circumstances and shall provide, as necessary, a travel document.

Articles 6 to 11 contains the necessary technical provisions regarding the re-admission procedure – re-admission application, means of evidence, time limits, etc. Articles 12 and 13 concern transit operations.

Articles 14 to 16 contain the necessary rules on costs, data protection and the non-affectation of other international rights and obligations applicable to the parties.

Article 17 states that a re-admission committee shall be set up to, among other things, monitor the application of the agreement and implementation procedures.

Article 18 empowers member states to conclude bilateral implementing protocols with Hong Kong. The relationship between such implementing protocols and the agreement is clarified in Article 19.

Articles 20 to 22 contain the necessary rules on entry into force, duration, termination and the legal status of the annex to the agreement.

Ireland has a long history of legal migration from Hong Kong and China in general and the numbers of people coming here have been increasing in recent years. There were almost 12,000 Chinese nationals resident in the State in 2001, almost double the number in 2000. The number from Hong Kong was of the order of 500 in 2001. Chinese nationals come here mainly as workers and students and make a significant input to the economy. In this regard, it should be noted almost 1,000 work permits were issued in respect of Chinese nationals in 2001. I should point out that 80% of foreigners resident in Ireland hold work permits. Sometimes media coverage of this issue fails to reflect that fact.

In recognition of the significant number of Chinese nationals who seek to enter the State, my Department has recently posted visa processing staff to the Irish Embassy in Beijing. This will improve the service being provided to Chinese nationals who wish to come to Ireland.

The existence of the proposed re-admission agreement with the Special Administrative Region of Hong Kong is not expected to have any significant effect in Ireland where the incidence of illegal immigration from the region is low. It should be noted that the existence of a re-admission agreement does not affect the consideration of the merits of any claim from an individual for leave to remain in the State. Neither does it affect the human or constitutional rights of individuals or any apprehended violations of those matters either; it is purely facilitative. In any individual case where deportation is being considered, the provisions of section 3(6) of the Immigration Act, 1999, will apply. That section sets out a range of factors which the Minister must consider before a deportation order is made. The return of an asylum seeker would also be subject to the provisions of section 5 of the Refugee Act, 1996, as regards the prohibition of refoulement or the return of the person to possible persecution.

I commend this motion to the House. The development of return policy, of which re-admission agreements form an important part, is a vital element in the development of a common immigration and asylum policy at European level.

Mr. Deasy

I wish to share time with Deputy Jim O'Keeffe.

I do not have a great difficulty with the substance of this motion. As far as the procedures to which the Minister referred are concerned, I am mindful that the motion was foisted upon him. From his tone, it appears he is not happy about the way the schedule was put together at short notice and then issued to the Opposition. Members on this side of the House are operating, to a certain extent, on a need to know basis. However, regardless of what the Minister said, it would not do any harm if prior consultation took place.

When a motion of this kind is placed before the House, Opposition spokespersons would be grateful if they were contacted by the Department and informed about its meaning in layman's terms. We could have avoided the necessity to call two votes and also the song and dance and posturing which marks what happens in this House. I ask the Minister not to assume that I am going to make a song and dance about something that is so technical in nature. If we had been contacted about the motion beforehand, we could have reached an agreement and saved time. Again, I do not have any difficulty with the substance of the motion.

Mr. J. O'Keeffe

The basic point that arises involves the technical aspects of this matter. There must be a better way of dealing with these provisions. The Treaty of Amsterdam required that there would have to be prior approval, from both the Dáil and Seanad, to enable us to opt in. As Deputy Deasy stated, it is a question of putting in place a better procedure for the future. The Minister should give consideration to that and he should hold discussions with the Opposition parties about it in order that matters of this nature are not sprung upon us. I accept that the Minister is operating within the bounds of a tight timetable and had to draw up a Cabinet memorandum and seek Government approval. There is a further problem in that the Spanish want the matter dealt with before the end of their Presidency, which occurs at the end of the month. There is pressure from all sides. We must have a reasoned discussion with regard to how we can put a better procedure in place for the future.

The substance of the matter involves Hong Kong, which has major problems in terms of the need to deport illegal immigrants from mainland China. As far as I can see, we are not dealing with the denial of human rights or persecution of people in Hong Kong because the rush is from mainland China into that territory. We do not really have a problem vis-à-vis the arrival here of significant numbers of illegal immigrants from Hong Kong.

If we had time available, we could discuss the overall situation in China and Hong Kong but there is no scope for that at this stage. In the meantime, let us agree to seek a better way for dealing with motions of this kind in the future.

Mr. Rabbitte

The Minister said that the need for urgency here is not of his creation and I accept that. He also stated that he has no wish to trample on the rights of the House and I entirely accept that comment at face value. However, I wish to make the point that the first occasion we saw the minimal papers on these measures was yesterday afternoon. Irrespective of the circumstances in which the Minister finds himself, the papers relating to these regulations could have been transferred to the spokespersons long before now.

There may be no difference between the parties in the House on the substance of the measures, but the issues involved are not trivial. There is a great deal of interest among members of the public about immigration. We must consider this matter in the context of its emergence from the Council itself. The entire Council process is amazing. From experience during our last Presidency, I can state that it was unusual to find oneself at a Council meeting having only the night before been briefed on fairly major matters. As president of two Councils, I was very fortunate that my officials and the permanent representation in Brussels at the time were of such high calibre. However, it really is extraordinary that an organisation called COREPER, in other words bureaucrats, which is a term I do not use disparagingly, decides a great many of these matters and the Council takes place behind closed doors. If one was to carry out a vox populi on the streets for a full week, one would not find a single person who had ever heard of COREPER. That is not an ideal situation and in terms of measures which emerge from this process, the least we ought to have is an opportunity to discuss them here. I note the Minister's comments on the future and the fact that committees will have an opportunity to discuss these matters.

I was intrigued by the notes from the Minister's office dealing with the agreement between Hong Kong, on the one hand, and the European Union, on behalf of all the member states, on the other hand, notably the delicately phrased issue of "persons residing without authorisation". The fact that I had not heard this phrase before shows it is very bad to be out of the loop for a long time as one does not keep up with the jargon.

The specific matter which caught my eye, on which I would like to hear the Minister's views, relates to Article 63(3)(b) which is the one which provides that the Council shall adopt measures on general immigration policies and so on. It contains a specific reference to the Council meeting held on 27 and 28 May 1999 and to the fact that “it concluded that re-admission agreements would constitute a valuable instrument of an active expulsion policy.” I can understand why re-admission agreements ought to be a sensible prerequisite of policy in this area, but what exactly is meant by “would constitute a valuable instrument of an active expulsion policy”? Does it mean that once such bilateral agreements are in place, one proceeds with the expulsion mechanism in terms of illegally resident immigrants?

Like Deputy Jim O'Keeffe, I would have liked an opportunity to raise the wider question of human rights on the Chinese mainland. Could any of the people so repatriated ultimately end up there and if so, are there any safeguards or guarantees built in in terms of the human rights of people in these circumstances? As Deputy Jim O'Keeffe stated, it is not an issue we can discuss in any detail here given the time provided. However, I am curious about whether repatriation to Hong Kong means only that or also involves the wider mainland.

We have had parliamentary questions and debates on the treatment of the Falun Gong, which gives me an opportunity to mention the recent decision by a member of the Garda Síochána to write to Members of the House about the issue. I was somewhat surprised and a little puzzled that the letters never reached most Members. The garda in question appeared to be acting as an interested citizen who, for whatever reason, had developed an interest in the Falun Gong issue and chose to communicate with Members. I am puzzled as to why action should have been taken not to facilitate the transfer of these letters to the Members to whom they were directed.

On the substance of the agreement, my party has no objection to facilitating the required opt-in here in respect of this title and is agreeable to it.

Mr. Boyle

I wish to share my time with Deputy Joe Higgins. The Minister stated that the order before us is purely facilitative and on face value that can be accepted. However, in its philosophical tone, a re-admission agreement is an acceptance on the part of those who are promoting it and have the highest vested interests in ensuring it is reached that there are people in its jurisdiction who should not be there and should return to the country from which they came. One can dress that up in any kind of legal vernacular one chooses, but that is the crude truth at the heart of a re-admission agreement. On those terms the Green Party is very concerned about entering into re-admission agreements, the motivations behind them and their subsequent use.

Independently, we have entered into re-admission agreements with Romania, Poland, Nigeria and Bulgaria. Ironically, we support three of these countries in their efforts to join the European Union as part of the enlargement process. The terms of a possible accession agreement will mean that the citizens of one of these states, Poland, will not have the right of freedom of movement in terms of the labour market if it becomes a member of the European Union. There is, therefore, a double standard at play.

In addition, while we, as an independent nation, choose to use our sovereignty to enter into individual agreements with countries with whose citizens we appear to have a difficulty in terms of our immigration policy, by entering into a European Union agreement we are deciding that the importance of any agreement we may have with the Hong Kong administrative area does not rate with that of agreements we have already entered into, that this is a national interest we are willing to forego and that the arrangement which will exist between the administrative area of Hong Kong and the People's Republic of China on its behalf will be with the European Union, not this country. We should be concerned on those grounds because it is a further diminution and dilution of our sovereignty.

The history of migration between Hong Kong and Ireland has been largely successful. The people of Hong Kong are industrious, entrepreneurial and successful and I cannot think of grounds for using a re-admission agreement to ask them to return to a situation which, as other speakers highlighted, is fraught with danger. We must also acknowledge that Hong Kong is not and was not a democracy, either as part of the "two systems, one country" policy of the People's Republic of China or as a British colony before that. If there are grounds for seeking asylum on political and human rights grounds, the people of Hong Kong have them, particularly as the changeover from British colony to becoming part of the People's Republic of China was handled so shabbily for many of its citizens. We should reinforce the historical relationship between our peoples to make sure the people of Hong Kong do not fall foul of further poor decisions.

In saying that, it should also be highlighted that Hong Kong, particularly as a British colony – I am not sure of the current position – has a very shabby record as a centre of net immigration. Its record of holding people fleeing Vietnam in large detention centres is appalling. I would like us to have had the opportunity for a wider debate arguing those histories and putting question marks over the types of relationships we are willing to enter into, not as an independent sovereign nation but as part of a bigger political unit. We should take time to ask questions and oppose such measures until a better system is put in place for dealing with situations such as this.

Mr. J. Higgins

This is a shameful proposal from an Irish Government. It is incredible that the Government is proposing involuntary repatriation of people to Hong Kong, which is now a province of China. What is proposed is involuntary repatriation to a dictatorship. China is a brutal Stalinist regime where human rights are not just routinely not respected but actively trampled on on a daily basis. There are thousands of political prisoners and many are tortured, killed or executed without proper judicial procedure. This is the regime with which the Government proposes to deal in this agreement.

Religious persecution is a daily fact of life. The Falun Gong is only the most recent example of how this regime will not tolerate any dissent or intellectual disagreement which might threaten its grip. Dai Dong Xue, a Chinese national living in Ireland who has been a supporter of the Falun Gong, is being refused the right to visit China for urgent family reasons. The Chinese authorities will not renew her passport.

Workers' rights are routinely trampled on. Free trade unions are not allowed. In recent weeks dozens of workers have been imprisoned in the Heilongjiang province because they protested against unemployment, unpaid wages and official corruption in the oil fields in that region. The rights of ethnic minorities are routinely repressed in a most brutal fashion. Amnesty International has often referred to Hong Kong's own deplorable record on human rights. Practitioners of Falun Gong have been put on trial in Hong Kong itself.

It is incredible that the Irish Government is supporting a procedure of involuntary repatriation to this dictatorship. The new hard line by Ministers for Justice, Equality and Law Reform, including the new Minister who would fancy himself as an intellectual and a liberal, would support this measure. Even if no one was repatriated from this jurisdiction this measure, by implication, would support what the other member states are attempting to do and would give moral support to any repatriations they might carry out. We do not know what happens to people who are involuntarily repatriated. They may have the right to apply for political asylum but if this is not granted they are to be repatriated. If this happens they will find themselves falling foul of the regime, being picked up and disappearing.

I trenchantly oppose this resolution.

Question put.

Tá

Ahern, Bertie.Ahern, Dermot.Ahern, Michael.Ahern, Noel.Andrews, Barry.Ardagh, Seán.Aylward, Liam.Brady, Johnny.Brady, Martin.Brennan, Séamus.Browne, John.Callanan, Joe.Callely, Ivor.Carey, Pat.Carty, John.Cassidy, Donie.Collins, Michael.Connolly, Paudge.Cooper-Flynn, Beverley.Coughlan, Mary.Cregan, John.Cullen, Martin.Curran, John.Davern, Noel.de Valera, Síle.Dempsey, Noel.Dempsey, Tony.Dennehy, John.Devins, Jimmy.Ellis, John.Fahey, Frank.

Finneran, Michael.Fitzpatrick, Dermot.Fleming, Seán.Glennon, Jim.Grealish, Noel.Hanafin, Mary.Haughey, Seán.Healy-Rae, Jackie.Hoctor, Máire.Jacob, Joe.Keaveney, Cecilia.Kelly, Peter.Kirk, Séamus.Kitt, Tom.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McDowell, Michael.McEllistrim, Thomas.McGuinness, John.Moloney, John.Moynihan, Donal.Moynihan, Michael.Mulcahy, Michael.Nolan, M. J.Ó Fearghaíl, Seán.O'Connor, Charlie.O'Dea, Willie.O'Donnell, Liz.O'Donoghue, John. O'Donovan, Denis.

Tá–continued

O'Flynn, Noel.O'Keeffe, Ned.O'Malley, Fiona.O'Malley, Tim.Parlon, Tom.Power, Peter.Power, Seán.Roche, Dick.Ryan, Eoin.

Sexton, Mae.Smith, Brendan.Smith, Michael.Treacy, Noel.Wallace, Dan.Walsh, Joe.Wilkinson, Ollie.Woods, Michael.Wright, G. V.

Níl

Boyle, Dan.Ferris, Martin.Gormley, John.Gregory, Tony.Harkin, Marian.Healy, Séamus.

Higgins, Joe.McGrath, Finian.Ó Caoláin, Caoimhghín.Ó Snodaigh, Aengus.Sargent, Trevor.

Tellers: Tá, Deputies Hanafin and S. Power; Níl, Deputies Boyle and Ó Snodaigh.

Question declared carried.

Mr. McDowell

I move:

That Dáil Éireann approves the exercise by the State of the option, provided by Article 3 of the Fourth Protocol set out in the Treaty of Amsterdam, to notify the President of the Council that it wishes to take part in the adoption and application of the following proposed measure:

a proposal for a Council Decision concerning the conclusion of the Agreement between the European Community and the Government of the Special Administrative Region of the People's Republic of China on the re-admission of persons residing without authorisation;

a copy of which proposed measure was laid before Dáil Éireann on 21st May, 2002.

As I indicated earlier there are two Council decisions proposed and, therefore, there are two motions before the House. The motion we have just dealt with concerned the signing of the agreement and this one concerns the conclusion of the agreement by the Council. That is done for technical reasons and the details of the agreement were set out in my earlier contribution. I will take this opportunity to reply to the points raised by Deputies in the previous debate.

Regarding the procedures we face, I want to be quite clear in supporting the spirit in which Deputies Deasy, Jim O'Keeffe and Rabbitte made their comments. I agree with Deputy Rabbitte that the procedures of the Justice and Home Affairs Council are such that it frequently gives rise to late decisions being made and early timeframes being assumed for their implementation. I recently spoke to the incoming Danish Minister and she indicated that it was her intention to make the business of the Justice and Home Affairs Council more efficient with less formal diplomatic speechifying and a more informal and businesslike approach.

Deputy Rabbitte referred to the COREPER meetings which are meetings by diplomatic representatives of the member states preceding Council meetings. It was hoped that those meetings should take place a week in advance of Council meetings to leave plenty of time for consideration of matters which arise at that stage. I generally agree with Deputy Rabbitte's point that it is not satisfactory that important matters are dealt with in this way. I want to assure Deputies that my personal instinct, philosophy and inclination is to make it clear that in the area of Justice and Home Affairs, member states should be given plenty of time to consider proposals. Proposals should not be presented at the last minute, there should be no surprises or shocks and things should not be put up for discussion at short notice. Those values will inform my participation in Justice and Home Affairs Council meetings. I will not be rushed or stampeded into measures which I have not had time to carefully consider.

The same applies to this House. It is my desire that the democratic deficit, which is often spoken about as existing in the European Union at both central and member state level, will be addressed to as great a degree as I can bring about. I hope to have a good relationship with all Members of this House, but particularly the Oppositions spokespeople, so as to give fair and adequate warning of things that are coming up. I intend to give briefings to Members who are interested in these matters as they develop on the European stage. That assumes that I am given fair and adequate warning by the Commission of the proposals for developments at Council meetings. In so far as it lies within my power to bring about that change I will do so. I will pass on the compliment to Members of this House in keeping them as informed as they wish to be on these matters. Ideally, a standing committee of this House would deal with these matters. It would not simply deal with things in arrears but look at developments and receive regular briefings on forthcoming developments.

I listened to what Deputy Joe Higgins said about human rights in Hong Kong and I share some of his anxieties about the People's Republic of China. Every protection open to a person under Irish law remains in place regardless of whether we have a system for facilitating the return of refugees. No one's rights are being removed in this bilateral agreement.

Mr. Deasy

I wish to share time with Deputy Jim O'Keeffe. I appreciate the Minister's comments and would appreciate greater consultation on issues like this. Some of us are not in here to score points. We would like to support the Minister on issues like this and not waste time. Yet we will blame him if things go horribly wrong.

I have been in this House about two weeks and all I have heard is the Green Party, Sinn Féin and others complaining about the allocation of time. They are the greatest time wasters of all. They have been complaining for two weeks about not having time to speak. They are wasting everyone else's time on pointless procedures. They are wasting our time and ultimately, they are wasting the people's time. As far as I am concerned they are here to do some work but all they are doing is wasting everyone's time. It is time they got off their high horses, stopped being so self-righteous about these things and did some work so that we can get things done.

Mr. J. O'Keeffe

One good thing has emerged from our debate today, namely, the common consent for dealing with these matters in a better way in the future. That is important. That mind-set must be changed at all levels. We must take into account the situation in Europe and the timetables of the Commission, the Parliament and the Council of Ministers. We must change from the old system where the Government of the day came to a decision, put it before the Dáil and thought it would be rubber stamped. I am not sure if we will do that through greater resources for the Committee on European Affairs or for the Department of Justice, Equality and Law Reform which deals with such issues. That is a matter for discussion. I will be happy provided we achieve the objective of dealing with these issues in a better way in the future.

Unfortunately, the Constitution requires that there must be prior approval of the Dáil and Seanad. There will not be enough time for detailed discussions of such measures in the Dáil and Seanad. It should be preceded by committee debate and then we can have a formal discussion in the Dáil and Seanad. These are serious issues which we have not had time to discuss.

Mr. McDowell

We are still on the first issue.

Mr. J. O'Keeffe

I thought we had moved to the next motion.

Mr. McDowell

We are still on the second of the Hong Kong motions.

Mr. J. O'Keeffe

We have not yet moved to the motion relating to matrimonial issues. I was a little surprised we did not get some type of dissertation from the Minister on the more complex issues of parental responsibility, the rights of the child, abduction and the recognition of matrimonial matters. We will have achieved our purpose if we have a common agreement for the future to ensure we put in place proper procedures for proper debate.

Mr. Rabbitte

I welcome the statement of intent by the new Minister for Justice, Equality and Law Reform. I hope he can give effect to it. It has a wider significance than the instruments before us this morning. Without delving into the Nice issue, there are many different views on why the people voted the way they did. One of them is still the remoteness and impenetrability of some of the procedures and processes of the Union. The one I raised about the manner and functioning of COREPER and the Council of Ministers falls into that category. The Minister's remarks are welcome in that regard. I do not want to labour the point, but I am advised – I am not able to say it from my direct knowledge – that there is a raft of instruments under this section of the Amsterdam treaty and that most of them were dealt with in the same fashion. They were transferred to the Opposition spokespersons more or less at the last minute and the opportunity was not there to give them the type of consideration and scrutiny they deserved. Perhaps there should be a change of attitude closer to home than the Commission and the Council of Ministers. Sometimes one gets the impression that some aspects of officialdom think the Opposition should be given the mushroom treatment. That is not a good way to do business. I welcome the statement outlined by the Minister for Justice, Equality and Law Reform.

Mr. Boyle

I acknowledge the statement of intent by the Minister. Despite what he has seen, he is assured of our co-operation. I must respond to the points raised by the Fine Gael spokesperson. My position as a Member of the Dáil is to oppose measures. During the last debate I advanced a number of arguments about why the measure was wrong. I exercised my right as a Member of the Dáil to call a vote. I do not regard that as messing with procedures. We have seen unfortunate incidents in the House in recent days. However, the record of the House will show that on the Order of Business this morning a vote was called by the Labour Party. Fine Gael called a vote on the Order of Business yesterday. We want proportionate speaking rights. We do not want them on a grace and favour basis. Once that happens, I am sure we can proceed with the business of the House. The Minister will be glad to know we will not call a second vote, but we will indicate our dissent with a voice vote. We look forward to things being done differently in terms of information being given to Members of the House, particularly to Opposition spokespersons. That will ensure better informed debates and, therefore, better informed decisions in the future.

Mr. J. Higgins

As regards the Fine Gael spokesperson, I appreciate that Deputy Deasy has only arrived in Leinster House and has only been appointed his party's spokesperson for Justice, Equality and Law Reform. I am sure if he had more time prior to today's discussion to research this important issue he would have been more aware of some of the critical issues concerning the life and death of human beings in China or Hong Kong. He might appreciate more readily why Members of the Opposition have expressed grievous concern about the Minister's proposal to involuntarily repatriate people to those dictatorships and called for the opportunity for the elected Members of Dáil Éireann to cast a vote for or against. That is the function of the elected Parliament.

I heard what the Minister said about the democratic deficit. It is to be welcomed that any further far-reaching proposals which will come before the Dáil will be preceded by more notice to allow the Opposition to give due research and thought to how the Dáil should decide. However, the Minister scarcely alluded to what is the most serious democratic deficit of all in this discussion and proposal, namely, the decision to toss people back to dictatorships who do not want to go there. If the Minister came with a similar proposal for Iraq, would the parties in the Dáil be as anxious or acquiescent in that regard? It does not matter that people have safeguards in Irish law. If people avail of the safeguards and the decision is still made to repatriate them, there is no control in Irish law over what happens to those individuals once they are landed back in Hong Kong.

One of the features that any human rights organisation will point out is the utter arbitrariness of law in China. It is made on the hoof to suit the governor or section of the Stalinist bureaucracy which has control of a particular region. People do not know what will happen to them. People who did not have a previous political grievance and were not politically active, but who found themselves pitched out of this country or any EU state and landed back in Hong Kong might find that sections of the bureaucracy take serious exception to something they have done or to the fact they have been deported back there. They might, therefore, arrest them and subject them to the arbitrary procedures which everyone agrees applies. Therefore, I hope there will not be a repetition of this but it is a shameful proposal and I reiterate my concern and utter opposition to it.

Question put and declared carried.

Mr. McDowell

I move:

That Dáil Éireann approves the exercise by the State of the option, provided by Article 3 of the Fourth Protocol set out in the Treaty of Amsterdam, to notify the President of the Council of the European Union that it wishes to take part in the adoption and application of the following proposed measures:

proposal for a Council Regulation on a European Enforcement Order for uncontested claims; and

proposal for a Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility repealing Regulation (EC) No. 1347/2000 and amending Regulation (EC) No. 44/2001 in matters relating to maintenance;

copies of which proposed measures were laid before Dáil Éireann on 7th June, 2002.

These motions relate to the exercise by the State of the option which we have to take part in the adoption and application of the proposals for a Council Regulation creating a European Enforcement Order for uncontested claims and a Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility. These measures were presented by the European Commission on 13 and 15 May last, respectively. Deputies will note the timeframe in which I have been working and, of course, the general election intervened. These are measures to which the Fourth Protocol to the Amsterdam treaty applies. Under that protocol we have a three month period from the date of presentation to the Council within which to notify the President of the Council of our intention to opt into any discussions from the beginning. Those periods would expire on 14 and 16 August, respectively, and it was therefore essential that the approval of both Houses be sought before the summer recess.

I reiterate that I was confronted with a situation where, on the one hand, I could have said these matters deserve debate and, even if parliamentary time is not available for a debate, we should participate in the discussions. That was one choice. The alternative was to say these matters were so important that they should not be put through "on the nod" and that we should, therefore, opt out of the discussions and merely decide, on a take-it-or-leave-it basis, whether we would opt into the product of that discussion process. Happily, parliamentary time became available, even in the attenuated form we have today. I share the concern of Deputies that these matters, as Deputy O'Keeffe mentioned – irregularly in the context of the last motion – are of fundamental importance and require that we consider them carefully in the Houses of the Oireachtas.

Deputies will recall that this is the eleventh time on which the approval of both Houses will have been sought for the State to exercise the option provided in the Fourth Protocol in respect of proposals in the area of EU judicial co-operation in civil matters. I consider it highly desirable that the Houses of the Oireachtas should have an enhanced role in scrutinising measures such as those which are under discussion today. Therefore, I am more than willing to facilitate the Houses in looking again at these measures when the negotiations on them have advanced somewhat. The modalities for such scrutiny can be worked out later when the Houses of the Oireachtas have organised and established a committee system to give life to the process of parliamentary scrutiny.

I want to put on the record the Government's firm commitment to giving the Houses of the Oireachtas a full part in the vital process of democratic accountability in EU matters. When exercising options under the EU treaties, especially options which have a constitutional dimension such as this business, it is vital that the Houses of the Oireachtas should be fully involved and fully aware of the implications of the proposals. As part of a new, inclusive approach to EU affairs the Government is committed to strengthening parliamentary scrutiny, both by debates in each House, when appropriate, and by ongoing interaction and information at sessions of an Oireachtas committee on EU affairs. We are not going to push far-reaching measures through the adoption and scrutiny process "on the nod". To do so risks fuelling a sense of alienation and hostility based on a public perception of a democratic deficit in Ireland's approach to EU affairs. Today's debate marks a clear statement by my Department and the Government that we are determined that these matters should be approached in the future on the basis of positive partnership between the executive and legislative organs of government established under our Constitution.

The measures which we are discussing have to be seen against the background of the development at EU level of measures geared towards the enhancement of judicial co-operation in civil matters. The overriding aim of this development is to make access to justice easier for the individual litigant. In that context, a programme of measures to implement the principle of mutual recognition of decisions in civil and commercial matters was adopted in November 2000 by the Justice and Home Affairs Council. It aims ultimately at the abolition of the present system whereby, for a judgment given in one EU country to be enforced in another, a declaration of enforceability must first be sought from the courts of the country where enforcement is to take place. In broad terms, what this means is that a judgment obtained in Ireland could ultimately be enforced in Madrid in much the same way as a judgment obtained in Dublin can now be enforced in Donegal. It should be noted that a number of measures which link in with the programme have already been brought to the atten tion of the Oireachtas and have already been adopted.

One of the proposed regulations which we are considering today creates a European Enforcement Order for uncontested claims. The EEO is intended to facilitate the rapid recovery of outstanding debt which is essential for the proper and effective functioning of the Internal Market. The proposal focuses on the elimination of intermediate measures which, at present, are a prerequisite for enforcement in one member state of a judgment that has been obtained in another. The proposal addresses the incongruity of delaying, for administrative reasons only, enforcement of a judgment concerning a claim that has not been disputed. Claims, for the purposes of the proposal as presented, are limited to pecuniary claims for specific amounts – referred to in Irish law as liquidated damages – irrespective of the amount at issue. The term "uncontested claim" is also defined in the proposal.

Before a judgment on such a claim can be enforced, it is proposed that it must be the case that either no appeal is possible against the judgment or that the debtor has not made use of the possibility of lodging such an appeal within the time limits for doing so. The text proposes that an enforceable judgment on an uncontested claim must be certified as a EEO at the request of the creditor. For this to happen, the claim must meet certain requirements, such as no appeal being possible and the documents must have been served on the debtor in such as way as to guarantee a fair trial. It is proposed that the EEO certificate will contain a transparent and standardised summary of all the facts that characterise and individualise the content of the judgment and which are indispensable for enforcement. The certificate will also contain comprehensive information to the effect that the requirements for eligibility for certification as a EEO have been complied with.

It is envisaged that an appeal against the grant of a certificate itself will be excluded under this proposal. The reasoning behind this is that if the debtor wants to prevent a European Enforcement Order certificate from coming into existence, he or she has to contest the claim and thus remove it from the scope of application of this proposal, as the proposal only applies to uncontested claims. If the claim remains uncontested upon application by the creditor it is up to the court of origin to examine the judgment to ascertain if it fulfils the requirements for certification. In this context the court will be aware that there will be no possibility to appeal against the resulting decisions. Before a judgment becomes enforceable, i.e., while an appeal is still possible, it is proposed that that judgment may be enforced provisionally. Such an enforcement certificate is reversed if the judgment is overruled on appeal. The system of granting provisional enforceability strikes a delicate balance between the interests of the creditor in swift enforcement and the interest of the debtor in avoiding potentially irreparable damage if the loss incurred due to provisional enforcement cannot be recovered. It is considered to be a major advantage of the process which is being proposed that certification of a judgment as an EEO is done by the court of origin which is familiar with the case at issue and the procedural rules that have been applied, and that no judicial or other authorities of enforcement in member states need to be involved.

I now turn to the proposed Council Regulation on judgments in matrimonial matters and in matters of parental responsibility. This is a consolidated text which combines three other proposals which have already been the subject of motions before the House. Thus, there is nothing of substance in the scope of the present proposal which was not contained in those which have already been opted into. The first such proposal is the Brussels II regulation. In July 2000, France presented a proposed regulation aimed at dispensing with the need to go through any specific procedure in the state where enforcement is to take place in respect of a decision on parental responsibility that concerns rights of access to children.

Given the time constraint I am under, I urge Members to read the script I have circulated. It has been the view of successive governments that it is important that we opt into measures such as these through the process of negotiation rather than have to make a take it or leave it decision on the finished result. Ultimately, these measures have to be adopted on the basis of unanimity and if we have serious concerns we can decline to adopt a measure. When a committee is established to consider these matters it will be my pleasure to keep its members and any other Members of the House fully briefed on the developments in the negotiations on these regulations so that the democratic deficit, to which I referred earlier, can be addressed in an appropriate way.

Mr. Deasy

I wish to share my time with Deputy Jim O'Keeffe. I have no difficulty with the first part of the motion. It makes good sense. I will reserve my position on the second part pending the outcome of the discussion that takes place. In the meantime I would appreciate if the Minister would keep the House apprised of this issue. People have difficulty with the lack of prior consultation and it would have been preferable to have the various aspects addressed by the Department. We will not oppose the motion.

Mr. J. O'Keeffe

During the debate on the Nice treaty referendum an issue raised was the lack of adequate debate on matters such as this. If I recall correctly, in the course of discussions I had with the former Attorney General, John Rodgers, he made specific reference to regulation 1347 or to one of that kind. It highlights the need for adequate time to debate these issues.

I appreciate the special circumstances surrounding the introduction of this motion. The draft regulation was produced only a few days before the general election. In the meantime the Government has been formed but there are no committees in place. I accept the bona fides of the Minister on this issue, but it is important to reiterate that while the first draft appears to make commercial sense in that we should support the wider application of uncontested judgments and their enforcement, complex issues arise with regard to the second draft, although I appreciate we are concerned here with a consolidation.

While I have not had the time to consider the original regulations and proposals, I would like to see the Minister's reports on this draft consolidation proposal. They deal with matters of mutual recognition in the matrimonial area, parental responsibility, the rights of the child and abduction. I am not sure how abduction is linked with the Hague Convention.

The documents refer to the French proposals on access, but I have not had the time to consider the documents in sufficient detail to know what they are. Presumably they are concerned with separated parents and who will have automatic rights of access to children.

There are a raft of issues here that will need to be considered in greater detail. The Minister proposes that we opt into these measures. As with the Nice treaty and anything to do with Europe, we are not at the races unless we are at the discussion stage. In view of this, I favour this country opting in to the negotiations. On that basis we can influence the ultimate outcome, the Oireachtas and the various committees can be fully informed on the process and at any stage Ireland can decide not be become party to any proposals. From that point of view it makes sense to opt into the discussions on these draft proposals.

Ms O'Sullivan

I welcome the indication from the Minister in the course of the earlier debate that he intends to ensure there is greater democratic participation in the discussion of these various measures under the fourth protocol of the Amsterdam treaty. I was a member of the former Oireachtas Joint Committee on Justice, Defence, Equality and Women's Rights when a number of measures were presented for consideration. As has been the experience of other Members here, we did not have adequate time to read and debate documentation. In addition, I do not recall any interest by the media when we debated these issues in committee. I hope that will change under this Administration.

Mr. McDowell

I cannot direct the media what to do.

Ms O'Sullivan

I acknowledge the presence of Mary Banotti MEP. She has a specific interest in these issues and has been active, especially in relation to abduction cases. Her wisdom would be useful in these deliberations.

I have no issue with the first item, which appears to be straightforward. The second item deals with parental responsibility. On 11 December 2001, a similar proposal was placed before the then Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights for consideration. However, I am not sure how the current proposal relates to it as it appears to bring together two measures. The first is referred to as Brussels II, while the second, emanating mainly from France, deals with issues of parental responsibility and enforcement of judgments across European Union countries.

The proposal considered by the committee at its meeting on 11 December 2001 dealt with the exercise by the State of the option under the fourth protocol of the Treaty of Amsterdam in respect of proposals for a Council of Ministers regulation on the recognition and enforcement of judgments in matters of parental responsibility. I presume the current proposal deals with the same issue. Deputy O'Keeffe asked if it is fully in accordance with the provisions of the Hague Convention. The Minister appears not to have addressed this aspect and I would appreciate his consideration of it, as it was also a concern of other EU member states.

At the committee meeting on 11 December, other issues arose on the definition of parental responsibility, including how broad it is. I am not aware if these questions have been addressed since then and I would appreciate if the Minister would advise on the current position. At the committee meeting the former Minster, Deputy O'Donoghue, circulated a speech in which he pointed out that it is fair to say that, based on the discussions that have taken place to date, certain aspects of the proposed regulations on parental responsibility have given rise to a degree of concern on the part of some member states. He went on to point out that one of the issues giving rise to problems for Ireland and others is how the draft regulations deal with the issue of wrongful removal and retention of a child. The position on this, and how it differs form that in the Hague Convention was set out in the Minister's briefing note, to which he referred and which was circulated to committee members. In his script, the Minister went on to point out that many EU member states have doubts as to whether the mechanism proposed in the draft regulation would prove better than the Hague Convention for securing the prompt return of the child. All of these issues, which are of great importance, need to be very carefully inspected before a final decision is made.

I want to refer to one case without specifying its details. When I was a Member of the Seanad a case was brought to my attention involving a child with one Irish parent and one who was native to another EU country. Other Members of the Oireachtas, and I think Mary Bannotti MEP, were involved in trying to have the child returned to Ireland. The Irish parent had proper jurisdiction but the child was in the other country which I will not name. The child was put into an institution there, not under the direct care of the other parent, and it was more than a year before the child was returned to the parent who had been given custody of the child. That was only one of the cases where there was huge trauma to the child concerned and to the parent here and the extended family.

If these measures can address those issues and result in children being restored to whoever has been granted custody, then they are wholly welcome. I believe this will prevent such a situation ever arising again, although it has been difficult to sift through the information in the short time available to deal with this matter. I welcome the fact that the Minister intends to involve the Oireachtas in the debate, as I hope will also be the case with the wider public which has a great interest in this area. I certainly would not want to stop the process of the deliberations on this particular issue, which I think is very important.

Mr. Boyle

I am sharing time with Deputy Ó Caoláin. The Green Party will not be opposing the adoption of either Council regulation, which may be of some surprise to the Minister. We believe that in many areas there is a case for sharing competence and jurisdiction on issues that are beyond the ability of a national government or a nation in general. There are shared concerns about the area of family law and the problems that arise from it. I, too, note the presence of Mary Bannotti, MEP, and salute the work she has done in this area.

Decisions such as this need to be accompanied with changes in our own law in regard to parental responsibility and the care of children. I hope such changes will address the very language we use. I want to come from a slightly different perspective here because there is no denying that many family break-up situations and custody battles involve damage, in particular to the female partner in a relationship and in the relationship she has with the children. Many of the events we have seen in terms of child custody battles that have resulted in what is referred to as child abduction very often concern unauthorised access by the parent who does not have full access to the child. The consequences for the children themselves can be horrific.

I hope that the law will not be framed in the usual way by the Judiciary. It is always, or predominantly, the mother who has to be seen as the pre-eminent parent in child custody situations. Men very often lose out in terms of how family law is drafted and applied. I hope potential changes in our national law can inform how family law at European level is developed as well. I do not mean to sound like John Waters but I think it is important that in the debate we have a perspective that is not often heard. Language is important. There is a very real difference between a child abduction where a child is not known or is not directly related to the child and where the child is taken away without authoris ation by a parent in a family break-up situation and legislation is required that properly reflects this. Other than that there is nothing which the Green Party can see fit to oppose in this proposal and we will, consequently, support it. We look forward to any proposed changes in this area which is badly in need of reform.

Caoimhghín Ó Caoláin

I wish to record, as I did this morning, my disappointment at the way this matter was brought to the attention of Members of this House. I hope it is appreciated that this is a criticism that is meant to be constructive in terms of the approach in the future. I attended the Whips meeting last Wednesday at which we saw the schedule of business for this week and it was only yesterday we had notice that these matters were coming before the House. I do not enjoy the resources of some of the larger parties and in terms of having the opportunity to properly go through the detail of such proposals I am left in an impaired situation. I hope that is appreciated and the comments of Members are taken on board.

I welcome the indication in the Minister's address that he recognises the importance of referring these matters back again to the Houses of the Oireachtas. That is extremely important. I note also that the Minister indicates this will be properly accommodated when the Houses of the Oireachtas have organised and established a committee system. I ask the Minister's support for the organisation of this Chamber in advance of the committee system in order that the party I represent here, other parties and Independent Members will have the opportunity to play a full role and have the integrity of our position recognised in the Dáil Chamber.

I have no objection in principle to the first element and note that the proposition centres on the whole area where claim is uncontested, which is a very important matter. I am prepared to accept that there is undoubtedly a cross-community benefit involved in that and I have no doubt it is something that will be of immediate import to many people, not only in business but in private situations.

I have some concerns in regard to the latter end of it, similar to that expressed by other Members. The Minister indicated that the regulation is bringing together three earlier signposted regulations that had been addressed previously in this House. I contacted the Minister's office this morning but I have not yet been able to ascertain what the critical difference is between this and the regulations that were introduced and debated here in July 2000 and March and September 2001 respectively. What are the critical differences? It is not only an act of consolidation or reiteration of what was already there on the record. It is very important that we have a more detailed flow of information in order to inform Members of what are the critical effects of the measure that is now being proposed.

One of the questions that concerns me about the presentation by the Commission of a further Council Resolution in September 2001 dealing with jurisdiction and the recognition and enforcement of judgments on matters of parental responsibility – I am conscious of the priority of Community law as against national law in any of these situations – is that while the thrust of what the Minister is proposing in this instance may be desirable, is it based on a common judicial approach to each of these important matters in each of the member states or, in terms of national law within the member states of the European Community, do we have differences that will present in a number of critical areas? In the area of child abduction in particular, which has been alluded to already by a number of earlier speakers, what we are seeing here is that jurisdiction will change from the court of the original habitual residence of the child in a couple of situations, but it states "or where the child has resided in a new location for at least a year and has settled in his or her new environment". I wonder about the assessment of "settled in his or her new environment", and after a year or more, without contact or the opportunity of engagement with the other parent. I wonder what the process of assessment would be there in terms of the word "settled". A child at different ages can become accustomed to a new reality and a new living circumstance, but does that actually reflect "settled"? Is it something that we would be prepared to accept? What of the views, the objections and the real concerns of the non-present parent in such a situation? I am genuinely and sincerely concerned about that. There have been a number of high profile cases over the years, not only in this jurisdiction and between this jurisdiction and others, but also within the European Community, which would give rise to real concerns in a situation like that. In moving that jurisdiction to the court of new habitual residence of 12 months or more, are we looking at an approach in law, a judicial situation applying in law in another national arena, that will reflect on Irish standards and Irish approaches, or will the other parent be significantly disadvantaged as a result?

I will not oppose this but I cannot openly endorse what is proposed because I have so many questions to ask and they are not answered in the text of the Minister's address. I hope he will take on board my concerns, which are legitimate and my comments which are meant to be constructive, and perhaps he will help us to come to terms with what he is proposing. I look forward to him accommodating further development of this debate in the months ahead.

Mr. McDowell

On a point of order, I know I am not allowed contribute again but I want to indicate to the Deputies that the attenuation of time will give rise to circumstances in which I can issue a letter to the Deputy about the matters that he has raised. Second, it would be churlish of me not to join in the recognition of the presence here in the Chamber of Ms Mary Banotti MEP, who is here in her capacity as rapporteur for the European Parliament on the second of the measures which we have just been discussing.

Question put and agreed to.