I put down this amendment after Senator Sheldon had brought to my attention that there might be some trouble because section 10 alluded to a person acting as Registrar but that had not been brought forward into this section. It is purely a drafting amendment which can be of value and I accordingly recommend it to the House.
Diplomatic Relations and Immunities Bill, 1967: Committee Stage.
Sections 1 to 14, inclusive, agreed to.
SECTION 15.
Government amendment No. 1:
In subsection (1), line 27, to delete "and the Registrar of the Court" and substitute ", the Registrar of the Court and the person acting as such Registrar".
Amendment agreed to.
Section 15, as amended, agreed to.
Sections 16 to 27, inclusive, agreed to.
SECTION 28.
Question proposed: "That section 28 stand part of the Bill".
I should like to ask the Minister how far he visualises this section can go. It is the practice of the OECD to employ consultants, people to carry out work for them. Indeed, in this country, though I do not know the exact status of the people concerned, people were employed in the Investment in Education study. The OECD were involved certainly and certain people performed the duties assigned to them. Though I am not suggesting that while acting in that capacity people should not have some immunity, I am not sure how far that immunity should go. For instance, Irish nationals doing work for the OECD could find themselves in a happy position in the matter of the parking of cars, if not in respect of more important matters, during assignments.
The purpose is to bring the various conventions into line. There are the Diplomatic and Consular Convention and other conventions covering UN bodies and European bodies such as OECD. The proposal is to grant immunities to officials and servants of the Organisation for Economic Co-operation and Development during any journey in the course of their duties. This involves immunity from arrest or detention, seizure of their baggage, and there is immunity from legal process in respect of actions done by them. It does not go as far as the immunities afforded to Ambassadors or Consuls. The immunities granted by countries in the Organisation for Economic Co-Operation and Development do not give full immunity for all actions of persons on assignments but it gives even Irish people immunity from legal process in respect of their actions while employed here by the Organisation.
I appreciate that the immunities afforded here are less widespread than in the case of diplomats. However, the immunities are considerable including, without qualification, immunity from arrest or detention of any kind for any reason to somebody who is performing duties assigned to him by the organisation. That is a fairly extensive immunity to grant to somebody merely operating as a consultant, which is not an uncommon arrangement. I have not been able to track the matter down readily in this extensive Bill to determine whether such immunities are available in respect of personnel employed by other organisations.
Immunities given in section 28 to consultants are more liberal than immunities given to diplomats and consular officials. I take it that the Bill is designed in the main to give them this immunity rather than refer them to the immunities in the Schedule. You will find in section 29 reference to a member of the Organisation or a member of or attached to a delegation to the principal or a subsidiary organ of the Organisation and any person, being a spouse of such person or a member of his family dependent on him or an official. Their immunities are set out in the Fifth Schedule and are wider than those given to the consultants.
I take it the reason is that these people who are coming here do not require the same type of immunity and the immunities set out here are the types they might reasonably expect to be granted. If someone were sent to, say, Peru it might look quite reasonable here to come from Peru to Ireland but when Irish consultants are being selected for Peru it might be a good thing to have this immunity given to them before they set out. It looks a bit wide to give immunity from arrest but at the same time I think a consultant or specialist sent from one country to another requires wide immunity.
An Leas-Chathaoirleach
I take it the Senator is speaking of a hypothetical country and not restricting himself to any one country.
He meant Ruritania.
I think Senator Sheldon has not got the point that Senator Garret FitzGerald is making. He was talking about an Irishman coming to Ireland.
Or remaining in Ireland.
If he remains in Ireland as a member of the organisation he has wider immunities under section 29. This refers to people who are of the consultant or advisory type and who come in for a short time.
I should like to give a personal example to illustrate the point. It does not say anything about an Irishman or any other person coming to Ireland. He is a person performing the duties assigned to him by the organisation. This could be a person in Ireland who never left. I was employed as a consultant by the United Nations to prepare the agenda for the World United Nations Tourism Conference in Rome. I did, in fact, visit Geneva for a few days in the course of my work. For quite a long time I was preparing material in this country. I am delighted to learn that any further assignments will give me immunity against arrest or detention, if I misbehave, and I will try to assure that I will have assignments continue as long as possible from the UN, or other agencies, in these circumstances.
It is a fair illustration. It means more than the Minister appreciated on the face of it. An Irish person living here can be immune from arrest or detention because he happens to be taken on for a particular job for a particular agency. It is not an uncommon thing to happen.
I should like to press the question which Senator FitzGerald asked earlier. Suppose one of these gentlemen or ladies park a car in Dawson Street, or somewhere else, and should get into trouble with the police, are we helpless to deal with them in the ordinary process of the law? This is a practical question which Senator FitzGerald asked and to which we should get an answer.
I am concerned with what may be a radical departure from long procedure in this respect. I should like the Minister to assure the House that we are not doing anything here that has not already been conceded by other countries to our representatives when they are abroad. I am anxious to establish that we are, in fact, in this particular enactment following a fairly good, reliable precedent by way of practice abroad. I am not at all clear that we are. One cannot judge from some, at least, of the newspaper reports. Unless I am mistaken, quite recently the New York police force were obliged to use drastic methods in order to deal with certain co-called diplomatic personnel in that city. I should like to be assured that we are not conferring privileges which are not at least available to our representatives when they go abroad, and that there are precedents for it.
Senator FitzGerald asked how many States have adhered to this Convention. The fact is that all the members have with the exception of Cyprus, France, Ireland and Malta. We will adhere to it if this Bill is passed. The Secretary-General of the Organisation has to supply a list of the people whom he proposes to send to Ireland on his behalf. Senators will see this under Article 17 of the Schedule containing this particular agreement. On page 78 it says:
The Secretary-General will specify the categories of officials to which the provisions of Article 18 below shall apply. He shall communicate them to the Governments of all Members. The names of the officials included in these categories shall from time to time be made known to the above mentioned Governments.
First of all, these are very limited immunities granted under the section to which the Senator has called attention. It is nothing like as wide as the immunities granted to the ordinary diplomatic representatives. It is put in in order to take care of the case where officials or servants of the Organisation might be sent to a country for a time and it is to provide them with immunity from arrest or detention when they are carrying out the duty for which they were sent by the Secretary-General. It is not beyond the wit of man to provide that if an Irishman is sent back to Ireland by the Secretary-General to carry out a function on behalf of the OECD and, if he is likely to misbehave himself outside his duties, action can be taken. The Secretary-General can be asked to withdraw him.
There is confusion here. We are discussing section 28 which says "persons (other than officials or servants of the Organisation)." The Minister refers to the relevant Schedule which is the Schedule dealing with the Council of Europe, which provides in respect of the OECD countries. This deals with officials. Article 17 of Part VI says: "The Secretary-General will specify the categories of officials to which the provisions of Article 18 below shall apply...." It goes on to deal with officials, as do Articles 18 and 19.
There is nothing here in relation to the category we are talking about, which is in section 28. There is no provision there of any kind—there may be elsewhere and I am open to be informed of the matter—that I can see for any organisation or the Secretary-General nominating the persons performing duties assigned to them to the Irish Government. It says merely that anybody to whom duties are assigned by the organisation shall have this immunity; nor is there anything about people being sent anywhere. The Minister keeps referring to people being sent to Ireland. Nobody ever sent me to Ireland. I was born here. I left it only for very short periods and yet I was employed to perform duties assigned to me by the United Nations. It seems to me that under the provision of this Article I would have been —during the period of performing those duties—exempt from arrest or detention.
I think Senator Stanford is in error, perhaps, in pressing the other point about parking because the Minister has answered that. Unless I was parking my car in connection with the particular study I was doing, I would not be immune from legal processes in respect of that, but I could not actually be locked up for anything I did, according to this. It seems to me that we are in the position that anybody who happens to be given a job to do by the OECD in this country—and this would, I think, include, for example, the "Investment in Education" team or the team in relation to the Science and Economic Development Report— would be automatically exempt from arrest or detention; that no requirement exists that they be named or nominated and that, in fact, there is no provision by which the OECD can exempt them from immunity, except by specifically withdrawing—I suppose, under a later provision—the immunity conferred, by waiving it under section 30. Unless they specifically waive the immunity, people are immune. That is my reading of it. I am open to correction, but the Minister's reference to section 17 or the Fifth Schedule gets us no further because it deals with a specific category who are exempted from Article 28; that is, officials.
Could some arrangement be made with the NFA, I wonder, in this regard?
I think, if the Senator studies this section again, he will see it would be quite dangerous for him to rely on his immunity if he is carrying out a study for the Secretary-General of the OECD because I do not think it could be said—if he was studying in his room; when he was making some studies like that—he could go out into the street, hit somebody and be immune from arrest or detention. However, I do not think persons of this type—they are not officials of the Organisation; they are not servants of the Organisation; Senator FitzGerald might be sent to France, Italy, or some of these other countries to have a look at certain matters for the Secretary-General of the Organisation and he would be immune from arrest or detention while he was carrying out the job assigned to him by the Secretary-General. If he stepped outside of that, he would be in danger.
With respect, I submit the Minister is wrong in that interpretation, and his specific reference to my being sent—while in the modern jargon—does not seem to be relevant. Nobody is being sent anywhere; they are performing duties assigned to them by the Organisation. I cannot see this can be read in any other way than that anybody in any country, who is performing a duty assigned to it by the Organisation, carrying out a job as a consultant—in his own country very likely—shall have and enjoy immunity from arrest or detention. What follows is separate and is not governed by that. There is an absolute immunity there. It is not qualified by any requirement that such person be named. The only way they can lose that immunity is by a positive waiver under Article 30. Had the Minister come into this House and said he thought this a good thing and produced reasons for it, one might be happy about it—although I would be doubtful—but, when the Minister is trying to suggest, in fact, the section does not mean what it plainly means on the face of it, and when he has introduced—as a let-out—section 17, which refers only to people who are excluded specifically from the wording of this section, I become unhappy. The Minister might consider it worthwhile to have another look at this. It seems to me that the section does more than he intended it to do and that some qualification of it might be desirable.
I was puzzled also by his reference to the question of our ratifying the convention. The Minister is in error in recollection. I did not actually ask who had ratified the convention, nor is it relevant, because we are not discussing a convention. There is no convention referred to here. OECD is dealt with in Part VI of the Bill. There is no convention. There is a convention establishing OECD on the 14th December, 1960, but that is not relevant to the question of immunities. Some of the other organisations here are covered by conventions which we are ratifying. But OECD is dealt with by specific provisions, subject to the fact that for certain purposes, to avoid repetition, rights provided for in relation to another organisation, the Council of Europe, are assimilated to the case of OECD, under section 29 of the Bill here. But there is not any convention at stake at all as regards these immunities. Therefore, the question of who has ratified it is irrelevant. There is no provision of any kind that I can see in the Bill, or any of the attachments to it, to require those persons to be named. It seems to me that there has been an oversight here, because it is quite clear the intention throughout the Bill is that these immunities shall be given only to people who are specifically named. If one is a diplomatic representative—I think, certainly, if one is an official of the United Nations, or a delegate of the United Nations, one must be named to get these privileges. Yet a consultant— who might be simply a national and a resident of a particular country, nominated to do some work—automatically gets complete immunity from arrest and detention. I think there has been an oversight here and perhaps the Minister might like to have another look at it between now and Report Stage.
I think Senator FitzGerald should realise it is not complete immunity, as he said. It is limited immunity, during the course of his duties, and the Secretary-General would have a clear list of people he wants to do work here for the Organisation. Certainly no Government here would agree to accepting that an Irish person, living here, should be employed by the United Nations, unless they were reasonably assured he would— while doing the work of the United Nations, or OECD—keep within the law. If he is not actively engaged for OECD at the time, then he has no immunity against breaches of the law.
I have to submit, again, that the Minister is not reading the Bill correctly. There is complete immunity. There is no qualification whatever for this immunity from arrest or detention. There is qualification about seizure of baggage, which applies only during any journey connected with one's duties; there is immunity from legal process in respect of acts done by persons in the course of the performance of their duties; there is inviolability in respect of papers and documents relating to their duties, and there are such privileges, exemptions and immunities generally as are necessary for the independent exercise of their functions. I submit, it is an absolute immunity which the Minister has, in error and obviously by a misunderstanding, conferred on this particular category of OECD consultants. The Minister will have to point out what section of this Bill requires submission of a list of names of persons, other than officials of the OECD, performing duties assigned to them by the organisation. I am open to correction, but he must tell me what section of the Bill contains any requirement about this list. The only one he has mentioned refers to a specific category of officials. If there is some other provision, he should tell us, but he is incorrect in suggesting there is anything other than complete immunity for consultants. On reflection, I think he may agree this is something that could be looked at again between now and Report Stage.
I share Senator FitzGerald's misgivings about this. I would be somewhat reassured if the Minister told us this was in keeping with the Acts passed by the other subscribing States. If this is exactly what they intended perhaps it is all right. I certainly share Senator FitzGerald's misgivings.
This is an effort to give reasonable immunity to experts sent by OECD who come here from time to time. If the Seanad do not like it they can throw it out but I think it is reasonable. We have provided in Article 29 that a representative of a member State of the Organisation, or a member attached to the delegation of this principal or subsidiary organ of the Organisation, and so on, shall have and enjoy immunity, facilities and rights corresponding to those provided for in Parts 2 and 3. We want to provide for experts who are sent here in a temporary capacity by the Secretary-General of the OECD and we want to give them a certain immunity. It is not necessary to do this but we thought it would be an extra assurance that if we wanted to have somebody to have a look at some particular aspect of Government organisation, we should give him, during the course of his duties, this limited immunity.
Is this an Irish clause?
It is.
We must be much more critical when it is an Irish clause. If everyone is not giving exactly the same privileges in their immunities we must be very careful about ours.
The Minister should be a little more careful about what he tells us. I asked him a specific question and the Minister told us we were now joining a club in which there were already three or four members but now he says the opposite. I want to know if we are doing something here which is not already established by other subscribing States in OECD. I am not at all satisfied that we have got anything like an assurance from the Minister.
I am sure a very simple amendment would get over the difficulty. If the word "while" were put in in line 20 before "performing" this should get over the difficulty.
I should like to suggest that a little more than that is required. It seems there is an oversight here in two respects. Those people are being put in a privileged position. First of all, there is the particular effect that arrest while such people are performing duties here is not covered. There is also the other provision which is very strange, whereby there is no requirement that they shall be named. I would have thought that while it might be so essential to have delegates of the United Nations sent to us they ought to be covered and given immunity but where you come to appoint consultants who have no particular status, who may not be sent anywhere, who may be resident in this country and may never leave it there is no requirement that the Organisation names them. The mere fact that the Organisation employs them automatically gives this privilege.
We are with the Minister in wanting to give this assurance to such experts here. What is required to make it more acceptable to the House is a provision, first of all, that this immunity should be limited to cases where they are actually performing duties. I believe that they should at least be named by the Secretary-General of OECD as being people who should properly enjoy this safety. Otherwise, if I were the Secretary-General of OECD I would be a little slow to appoint Patrick Lynch, who had always dwelt in Ireland, and if I automatically conferred this immunity on him which would be a little embarrassing. This automatic immunity should only be given to people to whom the Secretary-General wants to give it. Why is it that this immunity is being given to OECD people and others have to be named? I believe this is overdrafting. We are trying to help the Minister here—I think he is doing something laudable — but I would ask him, between now and Report Stage, to have a look at this particular point which is worrying us in respect of this matter.
Could we have some assurance from the Minister that he might consider this for Report Stage? We think there is a serious point of principle involved here.
I have tried to explain this as far as I can. I am satisfied it is appropriate that we should have this section in this Bill.
It is not exactly the section that is worrying us. It is the wording of it. We consider that the wording is rather loose.
I think the wording is all right.
Could we ask the Minister to tell us why he has selected this category to be given this immunity?
The Secretary-General of OECD will not send experts here to carry out work otherwise.
Nobody is talking about sending experts. We are talking about people living in Ireland. I was employed in the past by the United Nations in preparing an agenda for a world conference on tourism. There was no suggestion of getting on to the Minister about whether I should be employed for this particular job. If the Minister wanted to protect people sent to Ireland let him amend the section by saying that people other than officials of the OECD, and that those persons named by the Secretary-General shall have those privileges. The fact is that the Minister is giving immunity to Irish people doing work in the ordinary way for OECD. I do not think this was the intention of the Minister originally. I think there is overdrafting here.
It is neither the intention nor the effect of this section.
It is not the intention but it is quite clearly the effect. The Minister failed to give us any indication of where there is the requirement which limits it to people to be sent here or where there is any requirement that the people be named. I have asked the Minister to give this reference and he has not given it. It is quite clear that in the Bill, as drafted, and in the Schedules there is no sign of this privilege.
An Leas-Chathaoirleach
The Chair is rather perturbed by the fact that this debate for some time has been an attack on privileges of certain people. The Senators who are dissatisfied with the effect of this particular section are quite entitled to put down an amendment for the Report Stage. The Chair cannot allow this continuous ping-pong debate to develop in which there is continual restatement.
I should just like, very briefly, to appeal to the Minister not to appear more inflexible than he is. We have seen this happening in regard to other Ministers who promised to look at a thing between now and Report Stage and who do not make the necessary change. I feel the Minister would be doing himself an injustice to say that he will not look at it again. I feel a sufficient case has been made by Senator FitzGerald for the Minister to say: "All right, I am satisfied with it but I am prepared to have a look at it between now and Report Stage". If the Minister were to say that, it does not put him under any obligation to propose a change. If he is prepared to say: "I shall have another look at it" we would be quite happy and pass on.
For peace sake I am prepared to say that I think Senator FitzGerald is wrong but I will have a look at it.
An Leas-Chathaoirleach
It might be more conducive to peace if the Minister said: "Senator FitzGerald may be right".
Question put and agreed to.
Section 28 agreed to.
SECTION 29
Government amendment No. 2:
In line 36, before "and" to insert "or an official of the Organisation".
Amendment No. 2 is another amendment which was suggested by Senator Sheldon. We are changing the placing of this phrase: "or an official of the Organisation" in order to make certain that his family will be covered.
Amendment agreed to.
Government amendment No. 3:
In lines 37 and 38, to delete "or an official of the Organisation".
Amendment agreed to.
Question proposed: "That section 29, as amended, stand part of the Bill".
There is one minor point in regard to section 29. I notice that there is a reference to "a representative of a member of the Organisation" and also a reference to "a member of, or attached to a delegation." It strikes me that the first word "member" possibly refers to a country and in most of the schedules in the conventions where a country is intended to be implied by the word "member" a capital letter is used. I do not know if this is the only occasion on which it has not but I think it would make it clearer that the "member of the Organisation" is not referring to an individual in the same way as a member of a delegation. It may occur in other cases, but I think it would be worth having a look at.
We will have a look at it.
Question put and agreed to.
SECTION 30.
Government amendment No. 4:
In subsection (2), page 10, line 3, before "or" where it secondly occurs to insert "of".
This is purely a drafting amendment involving the insertion of "of" for the second time.
Amendment agreed to.
Section 30, as amended, agreed to.
Sections 31 to 35, inclusive, agreed to.
SECTION 36.
Government amendment No. 5:
In subsection (2), page 11, line 6, to delete "an official" and substitute "such representative".
This amendment also was suggested by Senator Sheldon and I think it is a necessary drafting change.
Amendment agreed to.
Amendment No. 6 not moved.
Question proposed: "That section 36, as amended, stand part of the Bill."
In regard to section 36 if the Minister were making any change in regard to OECD, I think the same point arises here in section 35 and it might be desirable to consider amending section 36 to cover the particular people in that group. I do not press the point but it might be desirable to bring such people within the scope of section 36 because I do not think the amendment we have now widens the previous wording to cover the people dealt with in section 35. There might be a case for some consequential amendment in section 36 as there would be in what we were doing earlier in section 30, if the Minister felt on reflection that there is anything in the point we were making.
We will have a look at it.
Question put and agreed to.
Sections 37 to 41, inclusive, agreed to.
SECTION 42.
Government amendment No. 7:
In line 36, to delete "an official" and substitute "such person".
This is another of Senator Sheldon's drafting amendments which we accepted and I think it makes it much clearer.
I am not quite sure that: "any person, being a spouse of an official" is all that much clearer.
It is in the second line of the section.
I think it is all right.
Amendment agreed to.
Section 42, as amended, agreed to.
Sections 43 to 45, inclusive, agreed to.
SECTION 46.
Question proposed: "That section 46 stand part of the Bill".
I take it that this is something which is general international practice to have. It seems rather wide: "A person who wilfully hinders, restricts or prevents the enjoyment or exercise of inviolability or an exemption, facility, immunity, privilege or right conferred by this Act shall be guilty of an offence and shall be liable on summary conviction to a fine..." It could be a little harsh. One could well visualise circumstances in which a member of the Irish public, unaware of the immunities enjoyed, might endeavour to restrain such person from committing what would, in the case of an Irish national, be an offence and in the course of restraining him he would be restraining him from enjoying the immunity. It does seem a little hard that a person should be liable to punishment. Admittedly, subsection (2) limits this to cases where the Minister gives a certificate but it seems a rather extreme provision in view of the difficulty that the immunities and privileges give rights to do wrong and if the Irish person who tries to hinder somebody doing an evident wrong by that act renders himself liable to punishment because he did not know the person had a right to do wrong. It may be that this is international practice and universal practice in this form. I just thought I would query that point.
I cannot say how far the practice extends in other countries of making it an offence for a person to wilfully hinder a diplomat with immunity and prevent him from enjoying or exercising his inviolability or facility or privilege or right but I think it is a good thing to have in our legislation some sanctions which could be imposed on somebody who wilfully hinders diplomats in the exercise of their inviolability and proceedings cannot be taken without the consent of the Minister for External Affairs.
I am not entirely happy. The word used is "wilfully". I take that to mean in full knowledge of what he is doing but not necessarily full knowledge of the status of the person he is doing it to. In other words, if you see somebody committing an offence and you restrain him from doing so whether it be a parking offence or a murder or something in between you wilfully hinder the person. You intend to hinder him. This is a wilful act not an inadvertent one but he would not know that the privilege existed.
I want some modification to establish that a person shall not be guilty of an offence unless he knew of the existence of the privilege. It is true, as the Minister says, that the Minister must give a certificate before proceedings can be taken, but the Bill says that the person shall be guilty of an offence and that the question of taking proceedings is a matter for the Minister. This section lays down that a person who knowingly hinders a diplomat in exercising his privilege, even though he does not know that such privilege existed, and that what he is doing, if the privilege did not exist, would be something which he would be bound under the law to do, commits an offence, and he is going to be automatically guilty of the offence.
It seems hard that a person who has a duty according to the law to do something, and who is exercising that duty because he did not know the person concerned was a diplomat, should be guilty of an offence. The law can hardly get him into the position where it makes a man automatically guilty for doing something which it requires him to do and the only defect is his lack of knowledge of the privileges attached to the person affected. Perhaps the insertion of the word "knowingly" might cover it, but this is only an ad hoc suggestion.
I will have a look at it though I think that "wilfully" would be quite enough. I think the courts would take that into account, but I will look into it.
Question put and agreed to.
SECTION 47.
Question proposed: "That section 47 stand part of the Bill."
I am not quite happy about section 47, which reads as follows:—
In proceedings in any court a certificate purporting to be under the seal of the Minister and stating any fact relevant to determine whether a judicial or semi-judicial body, an arbitration or conciliation board, an organisation, community, body, diplomatic mission, consular post or person is entitled to inviolability or to an exemption, facility, immunity, privilege or right under a provision of this Act or of an order made under this Act shall be conclusive evidence of the fact.
What makes me unhappy is this phrase "conclusive evidence of the fact" in conjunction with the words "purporting to be". We are asked in this section to agree that a certificate purporting to be under the seal of the Minister and stating any fact shall be conclusive evidence of the fact. If we were to be asked to say that it shall be prima facie evidence of the fact that would be quite acceptable, but to say that any certificate put into the court and purporting to be a genuine certificate under the Minister's seal shall be, by the very fact that it purports to be such, deemed to be conclusive evidence seems to be going too far.
I should like to ask the Minister to explain. He is being given the right to name certain organisations which shall be named under the Bill, and by Orders under section 40 to designate other organisations for this purpose. In these circumstances it seems to me that the question of what organisation is or is not entitled to these privileges is something to be determined by examining this Bill and seeing whether it is named in it, or examining Orders made under the Bill to see whether such Orders cover a particular organisation. I cannot see that in these circumstances it would be necessary to submit evidence purporting to be under the seal of the Minister, since the only way in which under this Act a body can be a body for which immunity is granted is that it shall be named either in the Bill or in an Order made under section 40. That is something that does not require evidence to be produced by the Minister. It is something which the Court can determine on its own account on the basis of the legislation and the Orders made under it. To suggest that the Minister should have power conclusively to determine whether a judicial or semi-judicial body or organisation is entitled to a privilege or right under the Act seems to me to be going much too far.
I would go further than Senator Sheehy Skeffington. I do not see what the section is for. I should like the Minister to suggest in what circumstances this section might be used, and where the provisions of section 40 would be inadequate for the purpose of what he has in mind.
I do not think that Senator FitzGerald has read everything that is in section 47, because it goes on to speak of "diplomatic mission, consular post or person" and any court would have an awful job in defining "person" under the Act.
I stand partly corrected by Senator Sheldon. The fact is that as present drafted this includes questions of "an organisation, community, body, diplomatic mission, consular post or person". It is only the word "person" that Senator Sheldon can stand on.
Consular posts would not be named in any Order.
I stand further corrected. It seems to me that the words used here have no purpose, though Senator Sheldon has explained, efficiently as usual, that some parts of this section may have some value. What is not clear is that all the words from "judicial or semi-judicial body" down to "person" contain the words "community, body". Why is it thought necessary to include them?
The certificate does not have to be genuine. It just has to purport to be genuine.
The seal of the Minister makes it genuine. That is why the seal is applied showing that it is what it purports to be on its face. Once the seal of the Minister is on it then it is genuine and has to be accepted by the court as applied by the Minister, rather than having him to attend in person.
The point is not that the document under seal purports to represent the Minister, which one could accept, but that it purports to be under seal.
It could be a forgery. It could be a fake.
I think the wording is all right but I will ask the draftsman about it again.
Question put and agreed to.
Section 48 agreed to.
FIRST SCHEDULE.
Question proposed: "That the First Schedule be the First Schedule to the Bill."
There are one or two minor points. One is a very minor point and covers line 6 on page 16, where the word "acceptable" requires amendment. It has only one "c". In Article 11 on page 16 there is a reference to what I think is put in a very odd way: "the receiving State may equally within similar bounds and on a non-discriminatory basis, refuse to accept officials of a particular category." It appears to me to state that they shall discriminate in a non-discriminatory way. The Minister very kindly sent me a note stating it was intended that if a country accepted an official of a particular type from one country the first country would not discriminate against another country in respect of that type of official. Let us convert that suggestion to practice and ask if a member country of the Warsaw Pact would necessarily accept a military attache from any country outside the Warsaw Pact. I am not sure how it works but I am quite sure that member countries of the Warsaw Pact would not accept military attachés from all countries outside the Pact. Perhaps the Minister would tell us.
We might have difficulty about a nuncio from Moscow, for example.
It is part of a convention and we cannot change it.
I take it this convention is the consular one drafted some years ago. The convention is very difficult to follow because there are no headings to it. The Second Schedule can be easily understood. I am glad I am not in the diplomatic service to have the worry of wading through this to find out what is happening.
The Senator would probably make an index for himself.
I should not like to try.
Question put and agreed to.
Second and Third Schedules agreed to.
FOURTH SCHEDULE.
Government amendment No. 8:
In page 66, line 28, to delete "(a)" and substitute "(I)".
Amendments Nos. 8, 9 and 10 may be taken together. They are all drafting amendments, all suggested by Senator Sheldon. The first one involves a definite mistake, an error, and the others propose the changing of the ordinary "1" to a Roman "I".
Amendment agreed to.
Government amendment No. 9:
In page 71, line 1, to delete "(1)" and substitute "(I)".
Amendment agreed to.
Government amendment No. 10:
In page 71, line 39, to delete "(1)" and substitute "(I)".
Amendment agreed to.
Fourth Schedule, as amended, agreed to.
FIFTH SCHEDULE.
Question proposed: "That the Fifth Schedule be the Fifth Schedule to the Bill".
This Schedule has a particular interest. It is the only one where ordinary Members of Parliament are directly involved, through the Council of Europe. Like many other conventions, it is difficult to follow what happens. Can the Minister assure me that under this Schedule Members of these Houses, when they or their officials acting on any committee of the Council of Europe, are on their way to a meeting are covered by immunities? I refer to meetings of committees which might not necessarily be held at Strasbourg. Will such Members and officials be afforded the full immunity of those attending the Consultative Assembly?
They are fully covered.
What is the Senator afraid of?
I am not such a person.
On page 77, there is the provision dealing with representatives of the Consultative Assembly and Article 13 states:
No administrative or other restriction shall be imposed on the free movement to and from the place of meeting of Representatives to the Consultative Assembly and their substitutes.
Representatives and their substitutes shall, in the matter of customs and exchange control, be accorded:
(a) by their own Government, the same facilities as those accorded to senior officials travelling abroad on temporary official duty;
(b) by the Governments of other Members, the same facilities as those accorded to representatives of foreign Governments on temporary official duty.
If that Article is abided by there should be full immunity.
Article 15, page 78, states:
During the sessions of the Consultative Assembly, the Representatives to the Assembly and their substitutes, whether they be Members of Parliament or not, shall enjoy:
(a) on their national territory, the immunities accorded in those countries to Members of Parliament;
(b) on the territory of all other Member States, exemption from arrest and prosecution.
I should be happy if the Minister would say whether we are covered at meetings of committees. I shall be satisfied if he does so on the Fifth Stage.
I understand that a committee appointed by the Consultative Assembly would carry the same immunity as governs delegates to the Consultative Assembly.
The Article states "at a meeting of the Consultative Assembly". I assume that delegates to a committee of the Consultative Assembly would be covered.
There is another point of interest. Article 15 states that during sessions of the Consultative Assembly representatives and their substitutes, whether they be Members of Parliament or not, shall enjoy on their national territory the immunities accorded to those countries to Members of Parliament. In this country, Parliament has never established immunity for its Members. My information is that a Bill was drafted 40 years ago for this purpose but that it never saw the light of day.
The Senator had better draft a Private Member's Bill.
It is possible that 40 years ago the Government were not so anxious to give immunity to some Members of Parliament, including the present Minister for External Affairs.
Article 12 takes away certain immunities granted by Articles 9, 10 and 11. Article 10 is a simple one involving freedom of speech to representatives at the Committee of Ministers but this freedom of speech is taken away by Article 12 which states:
The provisions of Articles 9, 10 and 11 are not applicable in relation to the authorities of a State of which the person is a national or of which he is or has been a representative.
Again, I mention it only as an oddity, realising it cannot be changed.
Question put and agreed to.
Sixth Schedule agreed to.
Title agreed to..
Bill reported with amendments.
Next Stage?
Next sitting day.
Business suspended at 6 p.m and resumed at 7.15 p.m.