Amendment No. 1 is in the name of the Minister and arises out of committee proceedings. Amendments Nos. 4 and 5 are cognate and amendment No. 6 is related. Amendments Nos. 1, 4, 5 and 6 will be discussed together.
Control of Exports Bill 2007 [Seanad]: Report and Final Stages.
I move amendment No. 1:
In page 4, line 12, after "appropriate," to insert "having regard to the purposes of this Act,".
Deputy Penrose tabled an interesting amendment on Committee Stage that proposed the insertion of a new principles and policy section in the Bill setting out the general principles and policies with particular regard to the EU and other international organisations and any other general Government policies. At the time, I undertook to obtain the advice of the Attorney General's office on this proposal and to revert to it on Report Stage.
I assure the Deputy that I gave this suggestion serious consideration, but the advice received from the Attorney General's office did not support the inclusion of the new section. There is a well established principle in law that the State is bound by the European and international treaties and European legislation. It is not necessary, therefore, to reiterate this obligation in a new section. It is clear from the Long Title of the Bill, which sets out its intent and scope, that among its objectives are provisions for controls of arms brokering and technical assistance with reference to specific European legislation.
Regarding controls on exports of good and technology, we have agreed to impose restrictions in accordance with our commitment as a participating state in the international export control regimes. The Schedule of goods and technologies to be controlled by order reflects the control lists agreed within the regimes. I am satisfied, therefore, that we have the necessary connectivity between our EU and international obligations and the order making powers created by these sections. Furthermore, I have been advised that it is not the current practice of the Attorney General's office to include general principles and policy sections in new primary legislation.
For these reasons, I have concluded on balance that it would not be appropriate to accept Deputy Penrose's worthy proposal. However, I take on board the intent of his suggestion. For this reason, I have proposed the addition of text "having regard to the purposes of this Act" to each of the sections mentioned to clarify the reasons for making orders. I hope this provision will reassure the Deputy as to the scope of these order-making powers and that he will accordingly withdraw his amendment.
I thank the Minister of State for his comprehensive reply. I have no doubt that he gave my amendment serious consideration, which we anticipated after he referred to it on Committee Stage.
The Labour Party had a number of concerns in respect of certain aspects of the Bill. We wanted to put in place an effective export licensing and control system that was comprehensive enough to monitor the end users of arms exports, an important matter. We wanted to broaden the Bill's remit to avoid focus on the narrow issues of arms brokering and to focus on the control of activity relating to the production and sale of military equipment. I tabled the amendment to sections 3 to 5, inclusive, because they, as originated with the Government, contained wide powers with no express principles or policies that would bring the sections within the constitutional requirement of the Cityview Press v. AnCO case, namely, that principles and policies must be alluded to in the Act. The Minister of State has considered this matter and taken legal advice from the Attorney General, by which he is bound, but I disagree respectfully with the eminent Attorney General. Be that as it may, I know from where the Minister of State is coming and I accept his bona fides in that regard.
It is always better to set out principles and policies. The Minister of State has come a significant amount of the way in so far as the purpose of the Act is concerned. Broad policy principles to ensure the overall thrust of the control of arms as enunciated in the Bill can be read in each line, section and subsection. This is important to the Labour Party, which I stated on behalf of the Labour Party on Second Stage. I welcome the fact that my colleague, Deputy Higgins, is present because he and my colleague in Europe, Mr. Proinsias De Rossa, MEP, have made a significant effort in this regard. A strong monitoring system must be implemented to oversee the end use of products. We were eager to ascertain how the EU's code of conduct on arms exports gels with this Bill, which will shortly become an Act. Other Acts contain the code and we should take further steps to ensure it is enshrined in legislation.
This is timely legislation for which we have waited a considerable period. The issue is technical, but it was important to the Labour Party that the principles of the Bill be referred to at all times. We wanted them to be set out specifically and the Minister of State has come a significant way in terms of the Bill's purpose. My colleague, Deputy Higgins, wishes to speak, but the Minister of State can take it that we will run with his proposal.
I find the Minister of State reasonable and responsive to the legislative proposals we have made to him in this area and others. The intention of getting the text right as an instrument of legislation is to enable procedures and administrative rules to be put in place to achieve the more general purposes of what people on all sides are aiming for. We cannot ignore the Forfás report of 2004 that acknowledged significant gaps of a legislative kind. Neither can we ignore reports that have come from those who have chosen to compare the Irish administrative system with systems in other countries. People are concerned by the increasing use of guns in murders in Ireland and one of the first things the public and professionals refer to is tracing the weapon. There will not be international moral compliance until we can trace that which we export to the final point of its use.
I find it unacceptable that we sometimes say our administrative system is as good as any other. In Africa 500,000 people a year die through the use of small arms and other such munitions. We have been assured that the notion of dual use will protect us but this is just an administratively clever and evasive piece of casuistry.
The purpose of this Act should be to ensure a level of compliance that sees no advantage in export earnings will take precedence over the arrival of an instrument of death in a person's hands. Ireland is not guilty when it comes to light weapons but partner countries in the European Union are. The response to learning of the existence of up to 250,000 child soldiers was to lighten the weapons children would carry rather than eliminate the weapons or remove the children from this appalling industry of death. Scientists were hired to use new materials that could lighten weapons to allow children of seven, eight and nine years of age carry them. Any person who went to Africa to examine recovered weapons has seen that this is what happened.
How does this happen? It happens because the income from this trade of death is deemed more important than the moral leap needed to ensure that nothing a company or country makes or exports will contribute to the trade. I am not speaking abstractly; the earnings of the armaments industry are 15 times the combined level of aid on the planet. There are many wonderful programmes that are supported by Members on all sides of this House, such as those relating to world millennium development goals and so on but these programmes are dwarfed by the earnings of the armaments industry. The industry thrives not only on sloppy and inefficient arrangements but on arrangements that exist solely to make money. Many European countries make a significant income from the blood of fellow inhabitants of our planet.
I do not want to go on too long because I spoke on this topic on Second Stage. The Minister received an assurance from the Attorney General on the wording of the Bill but similar matters arise in legislation we will come to later, the Immigration, Residence and Protection Bill. People have tried to argue that the function of the Oireachtas is to rubber-stamp what has been agreed in an Executive sense. I do not hold that view and I do not attribute it to everyone in this House but legislation must always be sufficient to ensure the administrative practice suggested by my colleague, Deputy Penrose, is achievable. We need an assurance on this. For example, the Irish Government should decide on end-use certification in a way that considerably enhances and changes its dual use interpretation. If we are assured of this the legislation will be fine. Amendments Nos. 1, 4, 5 and 6 only sought to ensure there would be an explicit reference in the legislation to make this possible for the purposes I mentioned now on Report Stage but discussed more fully on Second Stage.
I agree with what Deputy Higgins has said and in terms of activities that is the backdrop of the Bill. In terms of making the moral leap he speaks of and dealing with the dual use and other issues, given the advice of the Attorney General, this Bill represents best practice and I believe it will deal with these matters. I listened carefully to what was said on Second and Committee Stages and I will go out of my way to ensure that consensus is achieved and that it leads to good legislation. I feel an assurance can be given that all of the issues raised by those with an interest in this Bill are best addressed in this context. This applies particularly to the ongoing scrutiny of activities in this area through the annual report and committees that can examine the issue and actions that can be taken. As on Committee Stage, I commit to ensure that the discussion on this issue will go on and that good legislation will continue to apply to the area.
I thank the Minister of State and I feel he is correct to refer to the importance of the annual report and that it be brought before a committee for intense scrutiny, not a superficial examination. We have no reason to doubt the bona fides of the Minister of State as he has been most open and forthcoming with us on this matter. Our concerns regarding the objectives and underlying ethos of this Bill have been elucidated eloquently by my colleague, Deputy Higgins, and we hope officials in the relevant area of the Minister of State's Department can facilitate us with them. Deputy Higgins has a track record in this area and he did not merely happen upon it recently; he has over 30 years of experience arguing against the trade and his interest may even predate the concerns of others regarding end-use, dual-use, technological advances and so on. I seek to be assured there will be a comprehensive debate on this matter and I feel the Minister of State is committed to this as he has, shall we say, stood where we are standing.
In this context I will later withdraw my amendment as we feel the Minister of State's assurances are well founded.
Amendment agreed to.
Amendment No. 2 is in the name of the Deputy Penrose and arises out of committee proceedings. Amendments Nos. 2 and 3 are related and will be discussed together.
I move amendment No. 2:
In page 4, line 22, after "Ireland" to insert "or who is ordinarily resident in the State".
We had a more comprehensive discussion of this on Second Stage than on Committee Stage but the matter arises from our Committee Stage deliberations. This is a belt and braces approach and we seek to ensure there are no opportunities for people to evade the sincere objectives of this Bill, which has been a long time in gestation. Now that it is here it behoves us as parliamentarians to ensure we get the best Bill possible. On page 4, line 22, after "Ireland" I want to insert "or who is ordinarily resident in the State". The Minister of State pointed to the problem in this regard but in our view it is discriminatory to exempt non-citizens from regulations if Irish citizens are to be covered by such regulations. On Committee Stage he said there is no definition of "resident" so we have adapted the amendment to cover ordinary residents, a well known legal term that goes back to the Electoral Act 1992. The legislation defines this term "ordinary resident" which has been relied upon in this area for many years.
On Second Stage, Labour Party Deputies noted the importance of controlling activity related to the production and sale of military equipment. Section 3(2)(b) refers to activities undertaken outside the State by individuals who are Irish citizens or companies registered in the State. The focus of our previous discussion was to determine what provision was being made to cover circumstances in which a person engaged in brokering activities outside the State was resident in but not a citizen of Ireland. We tried to address this lacuna by way of a Committee Stage amendment but the Minister of State indicated our amendment was loosely worded or insufficiently focused. The amendment has been reworded to try to achieve our objective of ensuring that the monitoring system is all-encompassing in so far as this is possible. I accept the terms “residency”, “domicile” and “citizenship” have different meanings and may create difficulty in this regard. We indicated we would seek to amend section 3(2)(b) to clarify the term “citizenship” in light of the difference in the meaning of these terms.
While the nuances of my argument may appear somewhat whimsical or Jesuitical to many people outside the House, they have significant meaning for legislators. We want to ensure the legislation is both effective and amenable to rigorous implementation by providing that the section has maximum coverage.
The Fine Gael Party supports the amendment. Deputy Penrose is correct that the Bill, as currently worded, creates a lacuna and potential opportunity for a non-resident to be exempt from its terms. I also accept his argument concerning the different definitions of domiciliary and residential status. With the correct wording, however, this issue could be resolved. I encourage the Minister of State to accept the amendment or, if necessary, insert his own wording to close this potential gap in the legislation.
My concern is that it is of the nature of those involved in arms brokerage that their citizenship may have been derived from one source whereas their residency status may frequently fluctuate. The typical arms broker may use several different passports for several different purposes. He may have clients in one particular country but will arrange for a deal to be struck in another country and the product to be sourced in yet another country. That is the nature of the deadly game arms dealers play.
Clarification is needed on a few points. The amendment would have the effect of including, on an equal basis, non-citizens and citizens. If one decides to exclude non-citizens from the terms of the section, as proposed in the legislation, the onus falls on the Government to specify how the problem of non-citizens will be addressed. The problem is not confined to the simplistic notion of a person who enumerates or sells armaments but extends to the area of transshipment. It is fascinating that in international law the so-called Diana convention on landmines was specific and went further than any other international convention by laying down an obligation to inspect. In the case of landmines being transferred by aeroplane, for example, one has a right, which does not apply to any other item, to board an aircraft because the produce, sale or transmission of landmines is prohibited. I regard this as the model for other armaments controls. When the legislation is signed, will it include a power to deal with transshipment?
If one proposes to exempt non-citizens from an obligation imposed on citizens, one creates a problem regarding so-called security firms and security services supply firms, some of which are crude mercenary organisations. Is the text adequate to address the activities of arms firms and security firms? Such companies could issue a document that purports to show compliance with the law, although they may be involved in a web of transactions.
If one chose to place a malign construction on the legislation, which I am not doing, one would argue that the section seeks to stay out of the way of bad European practice because we do not want to interfere with people who are travelling throughout Europe. On the issues we have identified, it is important that the dangerous transients who are outside the category of citizens, upon whom a clear obligation falls, are equally included in the scope of the section.
The proposed amendment is the third attempt to extend the scope of extra-territorial brokering controls beyond Irish citizens and companies. I thank Deputy Penrose for tabling the amendment, which takes on board the points raised by the Government in our previous deliberations, particularly with regard to the difficulty of finding an adequate legal definition to encompass non-nationals who reside in Ireland and who may engage in illicit brokering outside the State.
I assure the House that my Department and the Office of the Attorney General subjected this section to the closest scrutiny to determine if it was possible to expand the scope of extra-territorial controls. I regret that on foot of this examination the advice remains that this is a legally complex matter which could potentially open the door to a legal challenge to the legislation.
While the term "ordinarily resident" has a specific meaning for taxation purposes, it does not offer sufficient, solid legal ground to withstand argument. The scrutiny has, however, had a positive impact in that it resulted in the identification by the Attorney General of a potential problem with the section, as currently drafted. He correctly pointed out that extra-territorial brokering controls should only be exercised outside the European Union as each member state has a similar obligation to control brokering activities within its jurisdiction. Were Ireland to provide for a capacity to control brokering activities in another EU member state, it could somehow imply that we do not trust our partners to comply with their obligations.
That is a description of my position.
We do not wish that impression to be created. For this reason, I will table an amendment which excludes from Irish control brokering activities carried out in another EU member state. It also provides that brokering activities undertaken outside the State on foot of an authorisation by an EU member state will be outside the scope of Irish controls.
There is sufficient definition of the word "transportation" within the Bill to cover the Deputies' concerns regarding transshipment and transit through Ireland.
If that is the advice of the Attorney General, from where will the discipline emanate? Is it his view that it is a matter for each sovereign member of the European Union to make its own arrangements to control brokering? The armaments industry makes a substantial contribution to the GDP of many states. People could come in and out of our system. I am trying to assist the Minister of State.
The manner in which the transaction can be carried out within European member states is complex. We rely on other EU states meeting the obligations they have and this is set in place. We work in the context of these countries honouring their obligations, being vigilant and having in place appropriate legislation and regulation. I am satisfied these obligations will be honoured. I am also satisfied we can deal with issues raised with regard to definitions, passports, striking the deal and delivering the goods.
As the Minister of State stated, we will depend on our EU counterparts. Although we have an EU code of conduct, I believe it is a fig-leaf. Will the Minister of State pursue at Commission level the introduction of proposals to ensure we are all at one in achieving an objective to which we all subscribe strongly? I accept what the Minister of State stated on Committee Stage and we took cognisance of it in drafting this amendment.
We now find more intensive scrutiny has raised another issue we did not think would arise. We accept other member states at their word that they will carry out the same degree of vigilance. I appreciate we cannot transgress into other member states. Does the Minister of State anticipate an EU directive to harmonise at EU level the level of scrutiny this Bill will achieve here? I will withdraw the amendment because the Minister of State has given us strong guarantees on his commitment and we accept them.
May I respond to Deputy Penrose?
Under Standing Orders no, but of course you can.
I am sure the Leas-Cheann Comhairle would want his south-eastern colleague to respond.
Council Common Position 2003/468/CFSP is on arms brokering. It is up to us to ensure we continue to work on this common position.
Amendment, by leave, withdrawn.
I move amendment No. 3:
In page 4, between lines 24 and 25, to insert the following:
"(3) Nothing in this section shall be construed as applying to brokering activities undertaken wholly inside one or more than one other Member State.
(4) Nothing in this section shall be construed as applying to brokering activities undertaken outside the State pursuant to a licence or other similar document duly issued by another Member State authorising such activities.".
Amendment agreed to.
I move amendment No. 4:
In page 4, line 25, after "appropriate," to insert "having regard to the purposes of this Act,".
Amendment agreed to.
I move amendment No. 5:
In page 4, line 30, after "appropriate," to insert "having regard to the purposes of this Act,".
Amendment agreed to.
Amendment No. 6 not moved.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."
I thank my colleagues for their interest in this important matter and for their thoughtful contributions and amendments on Second, Committee and Report Stages. My commitment is clear. I will continue to review the Bill and I wish to make meaningful the annual report which will be laid before the Oireachtas. I hope the Oireachtas committees and the House will take note of this Bill and continue the debate on this important topic.
On a personal note, I am pleased that this, my first, Bill has been passed and I thank the Opposition spokespersons for their contributions and the manner in which the Bill was dealt with. I reiterate my commitment to consult fully with my colleagues on the detail of the secondary legislation which will give full effect to this Bill. I intend to move rapidly on this and I look forward to what I expect to be full and frank discussions.
On behalf of Fine Gael, I welcome the Bill and I thank the Minister of State for its speedy passage. It represents real progress in an area in which we have had insufficient legislation. I thank the Minister of State for being open to the suggestions made throughout the course of the debate. The annual report system allows the Parliament a greater degree of scrutiny of arms exports. It is fair to state a large number of companies in Ireland are involved in legitimate trade which will be protected and will not be affected by this. It allows the State, where necessary, to ensure Irish business and industry is not providing arms, dual-use goods or technologies to countries and regimes we do not support or trust.
I am delighted to have been in a position to support this Bill. As I stated this was eloquently advocated by my colleagues Proinsias de Rossa MEP and Deputy Michael D. Higgins. Deputy Higgins has focused on this for 30 years and I thank him for giving of his time in the House to this matter. I appreciate that he is a spokesman on other matters and it shows his interests and that he is widely read and deeply committed, as one would expect of a socialist of his standing.
I thank the Minister of State for the way he handled this technical Bill. He was open and receptive to the points made by the Opposition. Sometimes we argue the theological to the Jesuitical with regard to nuances in a Bill and perhaps legal training may be a fault. The Minister of State co-operated with us in full and we are grateful.
The concept of an annual report is important. It returns scrutiny, effectiveness and oversight to Parliament. Rather than having quangos we will debate matters with the Minister of State. The Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, is in the Chamber. He holds a senior portfolio. Secondary legislation should not be the preserve of the Executive. We should be entitled to make inputs. The Minister of State has set something in train which I hope will permeate all aspects of Governments of whatever hue.
Question put and agreed to.