The Chair suggests that amendments Nos. 1, 2, 3, 7 and 8 be taken together.
Diplomatic Relations and Immunities Bill, 1967: Recommittal, Report and Final Stages.
In view of the complexity of the situation created by all these amendments and the discussion the last day, I would suggest we recommit these particular amendments.
It is a matter for the House; in so far as these amendments are concerned, the matter is recommitted; is that understood? I want the House to be clear with regard to the procedure. The Chair is proposing that amendments Nos. 1, 2, 3, 7 and 8 be taken together. The suggestion is that amendments Nos. 1 and 2 be recommitted.
I propose that all the amendments to the Bill be recommitted.
All the amendments?
That was my intention, if it is acceptable; I am sorry if I did not make that clear. I do not quite see how we could discuss five amendments together if only two of them are recommitted.
I suggest that perhaps the Seanad might recommit all the amendments.
Yes, that is the intention.
Nevertheless, amendments Nos. 1, 2, 3, 7 and 8 are being discussed together.
Bill considered on Recommittal.
Amendment No. 1 is brought forward in an endeavour to meet the uneasiness which Senator FitzGerald expressed at such great length the other day. I could not persuade him that the parliamentary draftsman's language in the section to which this refers—section 28— meant what was said in the protocol to the OECD Convention, which gave certain immunities to experts appointed by the Secretary General of the OECD to work here. In order that we might not be having a dispute as to what this protocol meant, I asked the parliamentary draftsman to redraft this section using, as far as he could, the language in the protocol to the Convention. This has been done. Therefore, nobody can dispute, I think, that this amendment covers exactly the same subject and gives the same immunities as we have agreed to give under the Convention.
We are in a number of difficulties in this matter. First of all, the Minister has just referred to some Convention. I am not clear to what Convention he is referring. I wonder if perhaps I could ask him to clarify that point before I proceed?
The Convention of the OECD. The protocol which was added to that Convention covered the immunities.
That is the OECD Convention of the 14th December, 1960?
As the Senator is probably aware, when the Organisation for European Co-operation changed its name, it also changed its charter to a certain extent. It then added a supplementary protocol to the Convention which set out the immunities that were to be granted to experts other than officials. I shall read out Article 18 of the protocol and I suggest that the Senator might at the same time read the wording of amendment No 1. The article states:
Experts (other than officials coming within the scope of Part V) performing missions for the organisations shall be accorded such privileges, immunities and facilities as are necessary for the independent exercise of their functions during the period of their missions, during the times spent in journeys in connection with their missions.
In particular they shall be accorded (a) immunity from personal arrest and detention and seizure of their baggage; (b) in respect of the things done in the course of performance of their missions, immunity from legal process of every kind; (c) inviolability of all papers and documents.
Perhaps I should also read out the following article which I think Senator Sheldon had in mind when putting down his amendment. Article 19 reads:
Privileges, immunities and facilities are granted to experts in the interests of the organisation and not for the personal benefit of the individuals concerned. The Secretary General shall have the right and the duty to waive the immunity of any expert in any case where in his opinion the immunity would impede the course of justice and it can be waived without prejudice to the interests of the organisation.
What I am attempting in the amendment I have put on the Order Paper is to meet certain of the criticisms voiced here on the last occasion. Firstly, it was suggested we were giving an inordinate immunity to an Irishman who might be appointed by the Secretary General of OECD to some job here— that during his appointment he could rob and murder all over the place and nobody could do anything about it. Secondly, we were concerned to take care of the anxiety that might have been aroused by Senator FitzGerald. If he does not accept the amendment, I am prepared to criticise the amendment put forward by him as an alternative.
Perhaps the Minister would postpone that until he sees my reaction.
We shall see how we get on.
I am glad I provoked the Minister by question, to develop his original statement because what he has just said has been very helpful to us to understand the reason for his amendment. It seems appropriate that the form of this exemption should be as set out in the Convention and one is puzzled as to why this was not done originally. Secondly, because of the change in the wording the draftsman has effected between the Convention and what we have here, we are puzzled. I notice that the Minister has included servants in his amendment. They are not included in the Convention. Also, the Convention states "they shall be accorded" whereas the Minister says "they shall have and enjoy". It may be because this is internal legislation.
May I deal with that now? It is a complicated subject and I think we should deal with it, bits at a time. The reason that the original section 28 in the Bill was different in wording from the Article in the protocol was that the parliamentary draftsman wished to bring the language in this section as closely as possible to the general run of the language in which Irish Bills are couched, that is when he does not quote verbatim the various international Conventions. That is the only reason. I suggested to the draftsman following the discussion here the other day that he should do one of two things. The first was that he should take the whole Convention and schedule it here in the Bill. That would entail a great deal of work and he decided he would instead accept our second suggestion to substitute for section 28 wording which came as closely as possible to Article 18.
In the amendment we say "experts other than officials or servants of the organisation" simply because it is more in keeping with the language of some of the other protocols and Conventions than the statement in Article 18 of the OECD protocol which stated "experts other than officials coming within the scope of Part V". If we were to take that wording we would have to quote Part V. Officials referred to in some of these Conventions are meant to be people in high offices. It is for that reason the parliamentary draftsman in this new amendment decided to use the words "experts other than officials or servants of the organisation" in the opening lines.
I should like to say on that particular point that I have examined all the Conventions, including the different organisations of the United Nations. Perhaps I am in error regarding this but I have not come across anything in relation to servants. It does not come from the United Nations Convention, the ILO Convention, the FAO Convention, the IKAO Convention, or UNESCO nor does it come from the World Health Organisation or the Inter-Governmental Maritime Organisation. I am not objecting to this but the Minister's explanation does not quite hold water. There must be some particular reason for using the word "servants" here.
That is the reason. It is quite difficult to go through all those Conventions to get at it but that is the reason. In this amendment we say "experts other than officials or servants". As a matter of fact, the word "experts" is not used in the normal way here. The wording we use is as close as possible to the language of Article 18 of the protocol. We decided to put in the word "experts". "Experts" means whatever it means. We all know generally what it means. We put in "experts other than officials or servants of the Organisation" instead of saying "other than officials coming within the scope of Part 5 of the OECD Protocol".
It seems to be a point of importance and I will not pursue it further. What I am actually trying to say is that the word "expert" is used in all the Conventions. The introduction of the word "servants" has no precedent attached to the Bill.
I do not accept that. It is there.
I have listed all the Conventions and I do not think the word "servants" occurs anywhere. It it does, I should be grateful to be advised where it occurs?
If I may intervene in this private war, I should like to say that it may be due to the fact that servants are specifically provided for in the first two Conventions, the diplomatic and consular Conventions.
These are diplomatic immunities. None of the conventions which we have attached to the Bill makes any reference to the word "servants". Why should we use it in regard to the OECD? I should like to know where there is any reference to this.
The parliamentary draftsman assures me that it is in keeping with the ordinary language used here and it will be understood.
I think the parliamentary draftsman has looked at the diplomatic Conventions and has slipped up here. A parliamentary draftsman will not usually admit to slipping up on a point. The next point is the use of "shall have and enjoy such privileges, immunities and facilities" instead of "shall be accorded such privileges, immunities and facilities". This is a change of wording. As this is domestic legislation, I should like the Minister's assurance on this.
It is the ordinary language that would be used here.
I notice then instead of "immunity from legal process of every kind" it is "immunity from legal process in respect of acts done in the course of the performance of their missions".
That is to bring it a little bit nearer to our normal wording.
In regard to "inviolability of all papers and documents" there is no significant difference intended there?
In my amendment I have used a different interpretation from that of the Minister. I am not against the Minister's amendment. I should merely like to explain the reason for my amendment. The form I have used in my amendment is the one which applies to FAO, WHO and UNESCO. I should like to say, at this stage, that acceptance of the Minister's amendment is entirely without prejudice to our position in respect of amendment No. 11.
I hope to bring the Senator around to that.
I have a difficulty in relation to amendment No. 3, which, technically, of course, must be discussed with amendments Nos. 1 and 2 because it seeks to alter the wording of the existing section. If the Minister's amendment is accepted, the existing section disappears and so does my amendment. In fact, amendment No. 3 is related more to amendments Nos. 11 and 12. It seeks to do in a different way what they seek to do. I think, technically speaking, if I were to pursue that point now it would be out of context in relation to the present debate. On the question of amendments Nos. 1 and 2, I think a great deal of the confusion that has arisen could be avoided if we had heard at an earlier stage that this would relate to the wording of the Conventions that were not in the Schedules to the Bill. I am afraid that I understood that everything in relation to the Bill was in the Schedules.
I should like to have had that but the draftsman said that it would make the Bill even worse than it is.
Doubtless that is the position, but it would have made things a lot clearer if we had no references here to those other Conventions. This clears my mind in regard to this. I was already inclined to agree to the Minister's amendment rather than to that of Senator FitzGerald because the Senator's amendment appears to me to be related more to the United Nations than to anything else. If the Senator is going to shake his head, I shall quote from page 59.
I am not saying that it is not related to the United Nations. It also applies to three of the United Nations' special agencies from which I took it.
I did not say so. It is still the United Nations. I still consider that is a very different type of organisation from the OECD.
It refers to the organisations relating to the United Nations.
I consider the wording of the Minister's amendment is preferable, even from that point of view. Now that we know it is related almost exactly to the Convention with which Part VI deals, I would be quite satisfied with the Minister's wording, subject to what I want to say on amendment No. 3 at a later stage.
I think the Minister and his draftsmen are to be congratulated on this amendment. I think this has been very carefully and usefully done because the original clause remained vague and referred to persons performing assigned duties and so on, whereas the present form says that they should "have and enjoy certain privileges, immunities and facilities as are necessary for the independent exercise of their functions" and so on. This seems to me to be much more specific. The fact that the Minister has shown us that it accords very closely with the wording of protocol strengthens the case he made. I feel that this is a good deal better than the original wording and better also than Senator FitzGerald's rather longer amendment. Therefore, I think the Minister is to be congratulated both on his willingness to think this over and to amend it is a point which demonstrates (a) the value of a week's reflection and (b) the value of the Seanad as an amending body.
I am not clear about this. Is amendment No. 3 not being moved or is it being postponed?
Technically, I understand it cannot be moved because if I had entered it as an amendment to amendment No. 1, it might now be valid to move it but as it is moved to a section which has now, by will of the Seanad, disappeared from the Bill, I do not see how it can be moved. I would suggest that the spirit of it be discussed in relation to the two later amendments.
It is suggested that amendments Nos. 4, 5 and 6 be taken together.
I move amendment No. 4:
In page 9, between lines 32 and 33 to insert the following:
"The inviolability and the privileges, exemptions and immunities conferred by section 28 of this Act are accorded not for the personal benefit of the individuals concerned but in order to safeguard the independent exercise of their functions in regard to the Organisation and may be waived by the Organisation."
This amendment was entered in complete ignorance of the fact that Part 6 was related to a Convention that was not before me. I am not terribly sure whether or not it is necessary. In section 29 of the Bill there is a reference, funnily enough, not to the Convention to which the Minister has directed our attention but to the fifth Schedule of the Bill and in it in every instance, in regard to Ministers, in regard to members of the Consultative Assembly and in regard to officials, something similar to the wording of amendment No. 4 is inserted. There is no general provision put in in regard to the Convention. It is put in in each individual case and as the Bill stood drafted the persons referred to by section 28 did not appear to me to fall into any of the categories in the fifth Schedule. Therefore, this advice on the subject of the nature of the immunities granted to them was missing so I thought it should go in in order that the same type of inclusion in regard to immunities should appear in relation to the people mentioned in section 28 as appear in relation to all these other people in various parts of the fifth Schedule. The Minister has drawn our attention to the fact that in the Convention dealing with OECD there is precisely a similar provision. I think he said Article 19?
Yes, Article 19.
All I want to suggest now is that the Minister might perhaps have a look at it to make sure that Part VI of the Bill, as it stands, is sufficiently worded to give a reference to Article 19 of the Convention. This is not something which, I quite agree, can now be done, but, fortunately, in this case the Bill has been introduced in the Seanad and has to go to another House which will provide the Minister with another opportunity to make further amendments. I should like him to keep that point in mind and to make sure that his experts will have their attention drawn to the limitation of immunities mentioned in Article 19 of the Convention on OECD.
If the Senator will give way I shall deal with that point. The fact is that as we are giving the force of law to the whole Convention here we also give the force of law to Article 19 which is pretty well the same as in the Senator's amendment. It is almost the same wording. Therefore, it is not necessary nor would it be very appropriate for us to repeat it in the Bill. It is all right for the organisation to tell the Secretary General that he shall have the right and the duty to waive the immunity of any expert if in his opinion the immunity would impede the course of justice and it can be waived without prejudice to the interests of the organisation. It is there and it remains there as an instruction to the Secretary General from OECD that he is to waive and that it is his duty to waive an immunity if it would impede the course of justice and if it can be waived without prejudice to the interests of the organisation.
As Senator Sheehy Skeffington would say I admit the Minister has a prima facie case, and so long as he is sure I am content. I do not see anything in Part VI which, in fact, enacts, as he says, the Convention in the same way as these other Conventions referred to in the various schedules because anything that is in the schedules is enacted quite definitely by the Bill but I do not see anything in Part VI which enacts that Convention. I hope the Minister will make sure of this point.
All these amendments are so interrelated that it would be difficult to disentangle any particular point but in sections 23, 24 and 25 of the Bill where there is a reference to immunities, it is always put in brackets: "including the waiver thereof". I hold that it might be no harm if in this reference in section 29 to various parts of the fifth Schedule which grants immunities it was made clear that it includes the waiver of the immunities and privileges. Everything else is stated: inviolability and exemptions, immunities, facilities et cetera and the very fact that no reference is made after all this precision to waiver might possibly be held to mean that waiver was not included. It is not a terribly material point but it does not tie up with some other suggestions in relation to other amendments so it is difficult to relate it precisely to this point.
May I interrupt the Senator? He wants to put these words into section 29 in order to make certain that the waiver is there but if he reads on he will see that section 30 says:
(1) The inviolability and the exemptions, facilities, immunities, privileges and rights conferred by this Act on an official of the Organisation or a person referred to in section 28 of this Act may be waived by the Organisation.
I agree with the Minister, but my next amendment proposes to delete that section. Amendments Nos. 4, 5 and 6 taken together deal with waivers in a different way from the Bill. They make it clearer. The waiver in regard to the persons in section 28 and the waivers mentioned in relation to other people would all have been brought together under my amendments Nos. 4 and 5 and, therefore, the section would not have been needed. I agree it is only a different way of doing the same thing. What happened was that we drafted these amendments not first having seen the Minister's amendments. They might have been drafted in a different way or left out altogether. As everybody will remember, we appeared this day week in an effort to embark on all these and there was not much chance to amend one's hand. Probably the points are met by the Minister's amendments. They might be met in a neater way following my ideas.
Amendments Nos. 7 and 8 have already been discussed.
This follows directly from what went before. I withdraw my amendment and accept the Minister's amendment No. 7.
Perhaps I might say that while we welcome very much the greatly improved version by the Minister and his draftsman, we should also recognise the fact that it is the persistence of Senator FitzGerald that has made this possible.
We might have a word on that in another section.
Amendments Nos. 9 and 10 may be taken together.
I move amendment No. 9:
In page 13, line 5, to delete "conclusive" and substitute "prima facie".
Section 47 which I am trying to amend by this amendment 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.
It seems to me possible to deal with this in one of two ways that have occurred to me. First of all, it would have been possible to say "In proceedings in any court a certificate under the seal of the Minister and purporting to state any fact relevant ...shall be conclusive evidence of the fact"; or else to say "In proceedings in any court purporting to be under the seal of the Minister and stating any fact... shall be prima facie evidence of the fact.” The tenor of my amendment is to replace the word “conclusive” by “prima facie”. The result of this would be that such a certificate would be taken as evidence unless it were shown to be otherwise. I quite understand the necessity to shield the Minister, or his representatives, from having to appear to verify or certify every certificate but it seems to me to say that a certificate purporting to be under the seal of the Minister shall be conclusive evidence is going too far. I could imagine a representative of the NFA, for instance, with the co-operation of the creamery workers, getting a milk bottle top and bringing in a certificate showing that their representative was a representative of the International FAO and saying that this milk bottle top was the Minister's seal, and this would be a certificate purporting to be under the seal of the Minister. It would not have to be under the seal of the Minister but would have to purport to be under the seal of the Minister and this would be conclusive evidence that this representative of the NFA was entitled to all the diplomatic immunities, freedom from arrest and exemption from all kinds of things. It seems to me that the placing of the word “purporting” is faulty, or else the word “conclusive” is faulty. I would say that it would be legitimate to have the words “under the seal of the Minister” and “purporting to give evidence of the fact”. But, “a certificate purporting to be under the seal of the Minister” merely means that anyone who wishes can claim that it is under the Minister's seal. It would not matter whether it was a milk bottle top, a half-crown or a bit of sealing wax. I decided in proposing this amendment to say instead of “conclusive”“prima facie”, which would mean that 99 times out of 100 the Ministerial statement would be accepted and would have to be accepted unless it were shown not to be what it claimed to be.
Senator Sheehy Skeffington's suggestion is an improvement on the section as it stands. I would be prepared to accept it only for the fact that, as the parliamentary draftsman has pointed out, in sections of this kind in various other Bills—and there are a great number of them—the wording is "it shall be accepted as conclusive evidence of the fact unless the contrary is shown"; practically the same purpose would be served by inserting "prima facie” or “unless the contrary is shown”. These are the words in sections of this kind in other legislation.
As I understand the position in law, you have two kinds of situation. One is where you produce rebuttable facts, rebuttable proposals, and the other is where you produce irrebuttable facts and irrebuttable proposals. The rebuttable facts are prima facie evidence of the things which they state but the antithesis of prima facie is what is conclusive. It seems to me that what the parliamentary draftsman suggests is contained in other details along the lines that a certain thing shall be proved by that fact unless the contrary is shown. I do not think the Minister will be able to produce any precedent for such bad legislation or bad draftsmanship as “shall be conclusive evidence until the contrary is shown.” That does not make sense. I am aware of quite a number of cases where it is “shall be evidence of these facts” or “proof of certain facts until the contrary is shown”. I think that Senator Sheehy Skeffington has, for a non-lawyer, done very well in the amendment he has suggested.
I would accept Senator Sheehy Skeffington's amendment for peace sake if the Senator would agree.
The Minister's stature is rising all the time.
I wish to thank the Minister.
I suggest that amendments Nos. 11 and 12 be taken together.
Senator FitzGerald on the last occasion dwelt at great length, and repeated himself several times, on the difficulty we might find ourselves in if an expert appointed on a temporary mission of the Secretary General of the OECD went on the rampage and we could not arrest him, detain him or bring him before the courts. He stressed the fact that he was not even nominated to the Government, or the Government were not even going to be informed that there was such a gentleman on the loose in Ireland with these privileges and immunities. I do not want people to be scared into believing that the Secretary General of the OECD would send somebody here or appoint anybody who could not be trusted to behave himself whilst he was performing the functions of the Secretary General. Senator Sheldon's, amendment was right on this point. He wanted to stress that the Secretary General was under an obligation by the Charter of the organisation to waive the immunities of an official if in his judgment not to waive them would be unjust, and that the waiving of them would not conflict with the best interests of the organisation.
This section as we have it drafted conforms to the general spirit and trend of all these international conventions dealing with immunities and privileges of diplomatic and consular officers, of members of various international bodies like the Council of Europe, the OECD, the FAO, the United Nations and so on and so forth. Our job here in dealing with this matter would have been very much facilitated if a number of these Conventions had been drafted by these organisations after the Vienna Diplomatic Convention. The Vienna Convention on Diplomatic Relations could be regarded as simply a drawing together, and putting in the one piece of paper, the practices that had grown up over the years in relation to the treatment of diplomatic representatives. If that Vienna Convention had been implemented before the OECD or before the United Nations was organised, or any of these other bodies, I have no doubt that the draftsman of the immunities to be granted to members of the organisation and to officials of these various organisations would have taken the Vienna Convention as a headline and simply written into a very short protocol or Convention "Number 1, 2 or 3 section shall apply to members representing governments or parliaments on these organisations, and X, Y or Z shall be applied to officials of various sorts."
I have no doubt that we could leave this situation as it is without inserting this section, and leave it to the good sense of anybody who would be appointed as Secretary General of the OECD to inform the Government here that he proposed to appoint or have appointed somebody to do some work for him here in Ireland. But to keep this Convention, or our own law, pretty well in line with the Vienna Convention on Diplomatic Relations we have to keep in mind that there is a very clear article in the Vienna Convention setting out how diplomats are to be appointed and the notification that is to be given to the receiving State. Article 8, section 1 says "Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State". That is if a French diplomat is being sent here he should be a Frenchman, or if it is an American, he should be an American, and so on. Section 2 of that Article says: "Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time." It is, therefore, clearly in order that the relations should work smoothly that it is laid down here as a headline that in the usual way a diplomat coming to Ireland should be of the nationality of whatever country sends him here, and that no Irish citizen is to be appointed as an official of a foreign diplomatic post here unless with the consent of the Irish State.
I think, seeing that this Vienna Convention was drafted by men who were the heads of their various protocol divisions, political divisions, and of the governments that combined to draft it, it is something that should be treated with respect and we should not go against it, unless we are clear in our minds we are doing something contrary to what those gentlemen, who drafted the Vienna Convention, thought was the right thing to do. It is for that reason we suggest the Seanad should adopt amendment No. 11 which simply says that the officials of an international organisation, whether it is the OECD, the United Nations, or FAO, serving in the State, or persons performing duties in the State assigned to them by those organisations, shall not be appointed from among persons who are Irish citizens, except with the consent of the Government, and the consent may be withdrawn at any time.
I want to make it quite clear this does not set out to control Irish men or women who want to take a post in the OECD, the United Nations, or FAO in another country. But if an Irishman is offered a post here by an international organisation, we think it wise that the Secretary General of that organisation should clear the appointment with the Government of the Irish State. I would think it would be very unusual for the Secretary General of any of those organisations to make an appointment without alerting the Government here to the fact that he was doing so. But I do want to meet the criticism of Senator FitzGerald that there is the danger that in giving immunities to a person appointed by the Secretary General of an international organisation it does give them certain immunities while they are carrying out their duties. I do not think the courts should be in any doubt if such a person ever happened to be taken up on some charge; there should be no doubt as to whether or not that person is entitled to immunities and some papers should pass between the Secretary General and the Government here. The paper we suggest by this amendment is the same as would pass when a diplomatic person is being appointed here; that is, that the State sending him, the organisation sending him, should ask the Irish Government for their agreement and it should also be quite clear—as in the case of a diplomat—that the Irish Government can say at some stage they are not prepared to grant those immunities any longer and that the person concerned is persona non grata, that is, he is not acceptable to the Irish State in the position to which he was appointed. I think it is good both for the international organisations concerned and for the State here that this procedure should be followed. We are not taking any control in relation to what an Irishman with the United Nations may be appointed to do in some other country at the ends of the earth; it is only when they are coming here.
In this section, the Minister clearly is trying to meet the point I raised the last day. I suppose I should be grateful to him but I am afraid I shall display some slight ingratitude in the matter. First of all, what I tried to establish the last day was whether it was the Minister's intention to do what the Bill purported to do in the way it was drafted; that is, to give complete immunity to people who would not even have to be named by the international organisation. I was not objecting to that procedure but I wanted to know did the Minister intend to do this. Unfortunately, we got bogged down because, first of all, the Minister said it was not complete immunity and, secondly, that the Secretary General of an international organisation would have to submit a list of people he wanted to do work here for the organisation. In fact, neither of those statements was correct and I was concerned to try to convince the Minister what the Bill, as drafted, did and to ask him to accept my interpretation of what the Bill did: further to say whether he really wanted to do that or not and, if he wanted to do it, what were his reasons.
It has been established today that the point made by me as to what the Bill purported to do was correct and the Minister has made certain adjustments because, apparently, he does not want to do that. But the difficulty we are in now in is that the course of action he is proposing is objectionable on several grounds. I see the Minister's difficulty because the Conventions dealing with international organisations are all drafted peculiarly in this respect —that where an official is to be sent to a country concerned, there is, in fact, a provision with regard to notification of his name in advance and so on but no such provision exists anywhere as regards experts. This is regrettable; perhaps it is an oversight; perhaps it was intended. I think it is regrettable but that is the form those Conventions take. We have signed those Conventions, accepting that such experts could be sent here without any limitation on our part or any right of objection on our part. Perhaps we should not have signed them but that is what has happened. I do not see it is in our power, at this stage—having signed those Conventions—to abrogate them in the way the Minister proposes.
I am in doubt, indeed, about whether or not my own amendment would be contrary to those Conventions and I would be open to guidance by the Minister on that point. But the Minister's amendment is drafted in such a way as to tell the international organisations what they shall do. This is something this House has no power to do because this would not only impose limitations on rights we have given in those Conventions but we would also propose to tell the organisation what it shall or shall not do in the carrying on of its own functions. This we have no power to do. We might have power to tell Irish citizens not to accept appointments just as we have power to tell them not to accept honours from foreign governments. I am in doubt about whether they might not accept employment of a certain kind without the permission of the Government. That is another point. It may not be constitutional but, if it were constitutional, it would be legally within our competence to say what jobs Irish citizens should take and lay down the law for them.
If the amendment took the form of saying Irish citizens shall not accept appointments as officials, or persons performing duties in the State, this might conceivably be legal, subject to its constitutionality. But, what we have no power whatever to do is to tell the organisation who they shall appoint. This, in fact, is null and void as a provision in this Bill and could have no effect whatever because we have no power to control those bodies in the appointments they make. Secondly, quite apart from the fact that the amendment, as drafted, is meaningless—in that it purports to control something not within our power to control—I would object very strongly to any attitude of the Government here to control such appointments by any method simply in order to get over a difficulty about diplomatic immunity.
This Government have signed a series of Conventions which give diplomatic immunity to experts, whether they are Irish citizens or not, it is quite clear. I am not attempting to blame the Government for signing them. They all take this form and we are only one country among perhaps 110 who have ratified such Conventions. Having done that, I do not think we can abrogate the Conventions in the manner set out in the section nor should we try to get out of the problem of giving diplomatic immunity to people in Ireland by saying that these people should not accept appointments.
The intention of the section is quite contrary to our practice in this country, quite contrary to what is acceptable in the country. We are a country in which the right of people to take any employment they like is not interfered with even when it involves the taking up of jobs in the defence forces of other countries. That is the practice in Ireland, though in other countries very stringent regulations govern it. For us, therefore, suddenly at this stage to lay down that if an Irish citizen gets an appointment as, say, a consultant with an international organisation he cannot undertake that appointment without the permission of the Government is to go far beyond what should be attempted by any government in order to get over a technical difficulty about diplomatic immunity. It is to go far beyond what this House ought to do.
However I sympathise with the intention behind the Minister's amendment. He felt I had raised a valid point at an earlier stage. In fact, I am not convinced that my own amendment gets over the difficulty. I say "shall not apply unless the organisation has applied to the Government". That in itself may be an abrogation of the Convention because it purports to take back an immunity which is given unconditionally by the Convention we have signed. Since I have that doubt about my own amendment, I am prepared to withdraw it if the Minister decides to share my point of view on this matter. At least my amendment has the virtue of doing no more than what we set out to do—to seek to limit diplomatic immunities—but it does not act to interfere with the right to employment in this country. The Minister's amendment does.
I gave the Minister an example during the previous Stage of a case that can arise. I instanced my own case when I was asked by the United Nations to prepare part of the agenda for the World Tourism Conference in Rome. Part of that I did in Dublin and under this provision I could not have been appointed in the ordinary course unless the Irish Government had agreed. I would personally resent interference of that kind. Our whole tradition and practice in this country are that people are entirely free in the matter of employment, not requiring the permission of the Government. There are continental countries where there are rigid controls in these matters but this amendment represents a wrong-headed departure from our tradition—wrong-headed because it interferes with the rights of employment of Irish people far beyond the need to achieve what the Minister has set out to achieve.
For those reasons I am plainly opposed to the Minister's amendment in its present form. I ask him to withdraw it, realising that in seeking to introduce it he was meeting a point made by me on the previous Stage. If he intended to give immunity to the people the amendment was supposed to be designed to cover, why did he want to do so? Was it because he had no alternative? Was it because he was bound in some way internationally? I had to establish these facts before expressing a view on whether we should give this immunity or refuse it. Having established the facts by careful reading of the legislation and by listening to the Minister today, it is clear to me now that we probably have not got the power to limit diplomatic immunity to experts because it is not covered in the Conventions we have signed. If the Minister feels we could do so, if he feels I am wrong in my interpretation of the effect of these Conventions, then I ask him to accept my amendment at all costs, or some version of it if he finds difficulty with it in its present form, but not to press his amendment which goes too far and which, in any event, has been drafted the wrong way round.
At the moment I feel myself battered into the ground. Senator FitzGerald raised so many points that I have now completely lost track. In relation to both amendments I wish to suggest that a very proper approach could have been attempted if the drafting I suggested earlier had been acceptable to the Minister—in section 28 that notification should be given to the Minister of any of these appointments. That would have been in accordance with diplomatic usage as given in Article 10 of the Diplomatic Convention which states that the receiving State shall be notified of the various appointments. I can see Senator FitzGerald's point in regard to a perfectly innocent Irish citizen, offered an appointment and now apparently subject to the ukase of the Government, but the Senator should realise there could be other cases. Supposing the expert was a retired civil servant from an important Department of State here who had had access to important papers. In such a case it would be very proper that the Government should have the right to veto that man's right to send information of any sort to any organisation.
Senator FitzGerald has read this in one way and I am not sure he has read it correctly. I take it that "appointment" in the Minister's amendment means appointment of a person under sections 28 or 35—the new ones—that is, a person with certain immunities attached to the appointment. I do not know whether I am right or wrong. It would help the Minister's case if I am right. Supposing OECD were foolish enough to imagine that I was an expert in some cultural matter and wrote to me telling me they would be glad of my observations in my own country on such a cultural matter. There was no question of appointing me as an expert. They just wanted to know what I thought. They were not appointing me as an expert. I hope I am not misjudging Senator FitzGerald, but I would take it that this is very like the type of thing he was asked to do in relation to tourism. While he was considered, very properly I am sure, an expert by that organisation, there was no question of granting him any immunities.
I suggest, even with the Minister's amendment if any of those organisations want to appoint an Irish person to produce something for them as long as there is no question of their putting that person above the law, as it applies to his fellow citizens, then the Government do not come into it. I should imagine that it is only where one of those organisations wishes this Irish citizen, in relation to his work, to do something that would put him above the Irish law, in the way it applies to his fellow citizens, that the consent of the Government would be involved.
This is very proper. It is all right for a Frenchman coming here, in relation to a diplomatic post, to get certain immunities but it is not quite the same thing when an Irishman is to get certain immunities and be put above the law as it applies to his fellow citizens. I would suggest that in relation to the Minister's amendment we are not using quite as large a stick as in Senator FitzGerald's amendment. Once the Minister is given any notification of appointment in regard to some foreigner or Irish citizen he is in the position to write back to the organisation and say: "I note this proposed appointment but we are not willing to grant immunities. We are quite happy if he comes here and does his work provided he does not seek those immunities".
This would create the right atmosphere in regard to this matter. There is always notification in regard to the international organisation. In my view there is notification to the Government of the receiving State—if it is not written in it is implied—and they are always in a position to say non grata in this case and that such immunities should not apply to an Irish citizen. There is only one doubt in regard to an Irish citizen and that is whether it is making it possible that other nationals, such as a Japanese or a Peruvian can come here and snap their fingers at the Government and claim immunities. That would be very improper. I think the Minister's amendment is simpler than Senator FitzGerald's.
There are a couple of points I should like to deal with here. Some of them are rather intricate. Senator Sheldon has put his finger on one point. If a person is here legally in possession of diplomatic immunities there is nothing the Irish Government can do in the way of legal proceedings in our courts to make him amenable for infringement of the law. Therefore, it is important that there should be the right sort of procedure for the appointment of such persons. It is very important, particularly, that where an Irish citizen in Ireland is being put above his fellows and is entitled to all those diplomatic immunities and privileges that they should be set out and there should be a reasonable way of having such a person nominated to the Government and being accepted.
It is also important for our courts if some appointee of one of those international organisations here committed an offence and if he is an Irish person, that he should be amenable to the Irish law within the terms of this section. If there is some breach connected with his service to the international organisation it is important that there should be some concrete evidence that can be presented to the court indicating that he had or had not certain immunities or that he had immunities with limitations and stated exactly where he stood vis-à-vis the Irish law.
I would say to Senator FitzGerald that it was not for nothing that the people in Vienna who examined the matter and who put down on paper all the immunities and privileges which had evolved and been accepted over the years should put in Article 8 that members of a diplomatic staff and persons who had diplomatic immunities, ought, in principle, be of the nationality of the sending State. In the case of an international organisation no person has the nationality of that sending body but at least it should be normal practice for an international organisation if they want to send somebody to a member country, that the person appointed should not be of the nationality of the receiving State, unless for very good reasons.
We all know that diplomatic immunities are subject to criticism in practically every country in the world. People who have studied the matter know that if we are to have international relations at diplomatic level we have to give immunities. We have to safeguard the people who have been sent by other countries. We had a very good example in recent months of the importance of diplomatic privileges and immunities. If recognition of these rights and privileges was not so strongly embedded in the international conscience we might easily have had real trouble when certain diplomats were under attack. It is important that if a person is coming here or is an Irish citizen living here and gets an appointment either from a foreign government by being taken into the diplomatic service in its mission here or in the service of an international organisation the Government should be made aware of the fact and should have expressed their agreement. I feel it will help towards keeping good relations between the people here and the organisation which has sent an official.
Subsection (2) of Article 8 of the Vienna Convention says:
Members of the diplomatic staff of the mission may not be appointed from persons having the nationality of the receiving State except with the consent of that State which may be withdrawn at any time.
I was inclined to disagree with Senator FitzGerald's fears but I can see that the fact that they have been expressed will stir people up to have a very close look at the appointments that may be made in this State by some of those international organisations. From the point of view of the person involved and of the organisation involved and for good relations all around, I think what we have suggested in amendment No. 11 is advisable, and that it is appropriate. In the ordinary course of events there could not be any objection by the Government here to an expert being appointed by an outside body to do some work and it is only in a case where an organisation is about to appoint somebody who might not keep within the law that any government could have an objection.
This suggested amendment is in line with many of the articles in the various Conventions. If one takes the Council of Europe there is an obligation on the Secretary General there to supply the names of officials appointed to the governments of the member States. Article 17 of the Convention schedule affecting the Council of Europe says:
The Secretary General will specify the categories of officials to which the provisions of Article 18 (below) shall apply.
That is the immunities.
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.
With regard to the United Nations the General Convention on the Privileges and Immunities of the United Nations, section 17 says:
The Secretary General will specify the categories of officials to which the privileges of this Article and Article 7 shall apply. He shall submit these categories to the General Assembly. Thereafter, these categories shall be communicated 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 governments of members.
The same thing applies in regard to the Convention on the Privileges and Immunities of the specialised agencies of the United Nations. The wording is on a par with Article 17 in regard to the United Nations Convention. We have all these pointers then to the desirability of the person in control or acting on behalf of an organisation or government wishing to send an official or a representative to a certain State that they should take steps to notify the receiving State of their intention to send a named person and to ask the government of the receiving State to grant him certain well-defined immunities and privileges. It is desirable that the receiving State, having for the purposes of international relations, been compelled by the general practice and now by the Vienna Convention to grant these privileges and immunities to the representative of an outside organisation or foreign government should have, at the same time, the power to withdraw them by saying, as can be said in the case of a regular diplomat, "He is persona non grata.” He is no longer acceptable to the government of the receiving State and they are not prepared to continue to grant him these privileges and immunities.
It is an even stronger case where a foreign government or an international organisation appoints someone, either resident in Ireland or an Irish citizen living abroad to come to Ireland, that the consent of the Government should be obtained ahead of time and that they should agree that he is a fit and proper person to be in receipt of these immunities and privileges. After all, it is the Irish Government who are responsible for the welfare of the people.
We have to recognise that the immunities which are granted are immunities from arrest and from trial and punishment for certain acts for which the ordinary citizen could be put to prison, if nothing more. Therefore, in these cases as well as in the case of diplomats coming from abroad, the Government should have the right to say: "No, we are not prepared to grant these rights and privileges." I do not fear that any Government here could refuse to grant immunities and privileges to a person appointed by an international organisation, if, in fact, he is known to be a fit and proper person to be in receipt of such privileges and it were recognised that he is not a person likely to abuse them and take advantage of his fellow citizens by doing something against them or committing an offence which is against the law or against the rights and interests of a fellow citizen.
As long as the Government can be assured that he is not likely to commit an offence against his fellow citizens they should and would, I am certain, agree to receive him as a representative of the international organisation concerned and give him the privileges and immunities to which he is entitled as a representative.
As between these two amendments one by the Minister and one by Senator G. FitzGerald, at first sight the Minister's amendment seems more attractive to me because it is briefer and less cumbersome and I think amendment No. 12 by Senator G. FitzGerald contains unnecessary detail. The wording of the first portion of the Government amendment is neater and covers everything that needs to be said. I do not think it is necessary to refer to all the articles, annexes, and so on. There is, however, an important point of difference. That is, the Government are asking in their amendment that nobody, not even an Irish citizen, shall be appointed to do a job of work for an international organisation as an expert here except with the consent of the Government, whereas Senator G. FitzGerald's amendment asks simply that the immunities shall not apply to an Irish citizen performing a mission unless the organisation has applied to the Government to have such privileges and immunities extended to such experts.
There is an important difference in principle here. The Government asks for the right to say that a particular Irish citizen shall not even be appointed to the task, whereas Senator FitzGerald's amendment merely asks that the Government shall have the right to refuse to allow diplomatic immunity to an Irish citizen if they think fit. I feel the Minister is in his expressed concern more in agreement with the second amendment than with his own. He states, for instance, that an Irish citizen should be—and this is his phrase—"amenable to Irish law." He also states: "We ought to have the right to say: no, we are not prepared to grant these rights and privileges".
I would agree with him—and I think Senator FitzGerald would also agree— that the Irish Government must have the right to say: "No, we are not prepared to grant diplomatic immunity to a particular Irish citizen." What the Minister's amendment is asking for is the right to say that a particular Irish citizen shall not be appointed. That is asking far more. It is open to two objections, as I see it. If, before an Irish citizen is asked as an expert to do a particular task for an international body here in Ireland, the consent of the Irish Government has to be obtained, it is possible that there may be delay. I am not suggesting that the Irish Government are slower than other bodies but Government Departments are not noted for speed. They may be noted for flexibility and good humour but speed is not one of the qualities in which they excel and, therefore, there might be what can be an annoying and very inconvenient delay.
Secondly, I think the Government amendment asks for too much power to say "No." It is possible, after all, that party political prejudice might enter into such a position.
If other things were not equal.
It is unlikely that political prejudice would enter into it but it is conceivable that a Government or a Minister might say that citizen A is persona non grata, and can have the right to say so on appeal from the international body for one or other expert. In other words, I think too much power can be given to the Government under amendment No. 11, which would enable them to say that particular people who are Irish citizens should not be appointed, to have a complete veto on their appointment, whereas amendment No. 12 merely asks that the Irish Government shall have the right to refuse the granting of diplomatic immunity to Irish citizens if they are appointed.
There is also, if I might mention it in parenthesis, the question as to whether we have a legal definition for "Irish citizen". What is an Irish citizen? Is a man living in Newry with an Irish passport an Irish citizen? Is a man living in Newry with a British passport an Irish citizen? Is a man having an Irish passport and a British passport living in Belfast an Irish citizen? I am not sure that the phrase "Irish citizen" has a connotation that would be agreed on by all lawyers. I say this in parenthesis. While the words are not clearly defined we all know what they mean—a citizen of the Irish republic. But there is a concept which refers to the whole of this island as being Irish. This concept is shared by the Minister and the Government and, therefore, an Irish citizen might be a citizen who is Irish although regarding himself as a citizen of the United Kingdom. I am not sure that the words "Irish citizen" in either amendment is clear.
I feel that in amendment No. 12 there might usefully be added some words at the end. The operative words are: "The privileges and immunities ...shall not apply to an Irish citizen performing a mission for one of these organisations in Ireland unless the organisation has applied to the Government..." I would add the words "and obtains its agreement to have such privileges and immunities extended to such experts". I do not think it is enough to say that an organisation has applied for agreement. I feel the addition of these four words "and obtains its agreement" between the words "Government" and "to have" make this twelfth amendment readily acceptable.
To sum up, as between the two amendments I would prefer Senator FitzGerald's amendment, which grants the Government the right, which I think it should have, to refuse immunities to certain Irish citizens employed by international organisations in Ireland but which would not give the right to the Government to refuse any citizen's right to be employed on such tasks in Ireland by an international organisation. That is the distinction I see. I think that the Government should have a right to say that a particular Irish citizen shall not enjoy these immunities, but it should not have the right to say that a particular Irish citizen shall not be appointed. That is the crucial difference between the two amendments.
Senator Sheehy Skeffington has said that a great deal of the burden of the Minister's contribution to the discussion on these amendments has rather been arguments in favour of amendment No. 12 rather than amendment No. 11. There are at least three categories of people concerned here. Firstly, in this Bill there are diplomats who receive full diplomatic immunity. Next there are officials of international organisations, and thirdly there are experts appointed by international organisations. The point raised on the Committee Stage by Senator FitzGerald related to the position of experts appointed by international organisations, and he raised the point of whether these people might be receiving a greater measure of immunity than was appropriate, and whether the matter might not be looked into. The Minister in introducing amendment No. 11 has looked into the matter a bit too far. In his opening statement on amendment No. 11 he repeatedly referred to the Vienna Convention, and again in his second intervention in the debate he referred to the Vienna Convention. He quoted this Convention in support of the words used in amendment No. 11 concerning appointments.
To my mind the Vienna Convention, which relates to diplomatic representatives, which was signed in late spring, has very little to do with the case. The position is that we are concerned in this discussion not about the position of diplomats who are afforded full immunity, who are sent from one country to another in order to act vis-à-vis the Government of that country. We are concerned rather with officials who are sent to do limited things, or with experts who could be asked to do one of two things. An expert who is appointed by one of the international organisations to do something in Ireland might be doing one of two different types of things. He might be doing public work in Ireland or he might be doing private work in Ireland. A person could be appointed as a consultant by an international organisation, and he could do a great deal of the work of that consultancy in his own house without ever going outside the door. Senator FitzGerald has mentioned that he was in this position. I have been in this position myself with regard to the OECD doing consultancy work, a great deal of which was done at home before an eventual meeting in Paris. We are concerned about the position of such people.
The point is that we are not concerned that these people should have immunity. The cardinal point of this argument is not whether they should have immunity or what type they should have. The cardinal objection to amendment No. 11, and the desire to put forward amendment No. 12 in preference, is due to the fact that Irish citizens should not be prohibited from accepting such positions if offered. It seems to me that it is an undue interference with people who are being asked to do work in an expert capacity to provide that because they are Irish citizens and are doing part of this work in Ireland, though it does not impinge on the Government or on public affairs in any way, it is necessary to go through the full diplomatic procedure, seeking first whether the Irish Government approve of their being appointed to do this particular job. It is for the Minister, for the Government and for the Houses of the Oireachtas to decide that in all the circumstances these people should have diplomatic immunity, but I do not think we should allow ourselves to become tangled up in Conventions to the extent that the only way out is to say that no person residing in Ireland can accept appointment to do any type of work as an expert for an international organisation without the consent of the Government of Ireland. I do not think that there would be any difficulty with regard to this.
Senator Sheldon said that it is very desirable that this consent should be needed because we might have the case of an ex-civil servant whom the Government might not wish to become a consultant in this particular matter. I do not think that this is really a valid objection. I do not think that difficulties would arise in this regard. I know that the Minister has in the past favoured very much the participation of Irish people in the international agencies, and I know that it is not his general attitude to such matters that Irish citizens should be hampered in any way. If we were to insist on the procedure which is in amendment No. 11 we might well get ourselves into the position that the only result of the whole thing would be that Irish citizens would not be asked to act as experts, that where the OECD or some other organisation are looking around for somebody to do a particular job if they find that in the case of Irish citizens it is necessary to go through this whole diplomatic procedure they would be inclined to take the easy way out and say: "There is somebody in Sweden who could do almost as good a job, we will get him and not have all this trouble."
In trying to meet the case made the last day the Minister has gone too far. He has treated the appointment of such experts as if they were full diplomatic appointments. There may be a case for treating officials in such a way. Amendment No. 11 which starts off talking about officials of international organisations, but goes on to refer to "or persons", which I take it means to include experts. We are applying the full stringency of diplomatic appointment and diplomatic acceptance, which I think is going too far. To accept what is in Senator G. FitzGerald's amendment or what is in Senator Sheldon's amendment would be quite appropriate to the case. There is no doubt that we agree with the Minister that it is undesirable that a large amount of diplomatic immunity should be given to any person whom the Government do not think it would be proper that it should be given to, but we feel that this question of whether immunity is given to the person is a separate question from the question whether or not an Irish citizen should in the future have to get the consent of the Government here to carry out even the most short term work for any international organisation.
I must say that in the early stages of this debate I listened with a very open mind. Like Senator Sheehy Skeffington, I was more attracted to the Minister's amendment because of its apparent simplicity and its direct approach to the solution of this problem. I also formed a feeling of a certain amount of sympathy with the Minister, who has told us that he approached this matter with good intentions, as he described them, of endeavouring to go as far as he could to meet the arguments and objections posed for him by Senator G. FitzGerald.
This debate has been of tremendous value and use to the House because we can all see what is really wrong in this particular amendment on the part of the Government; we can read into it, I think, very clearly now a very serious and far-reaching implication, one certainly I do not think anybody in his sane senses could possibly support. I am one of those Members of the House who believe firmly that the Government should and must have the right at any time either to withhold or withdraw any immunities extended by way of privilege to persons in this category. Clearly, they cannot withdraw or withhold those immunities from people outside their jurisdiction. Consequently, that right can only be applied, in effect, to Irish citizens. I certainly find myself in complete agreement on that point but there I must pause.
It would be entirely wrong for this House to give its consent to a proposal which would enable any government— I am not alluding to this Government any more than any other which may follow—to say that Irish citizens should be denied employment. There, I think, is the crunch of this whole argument. I think—whether knowingly or unknowingly—the Government have made a mistake in writing in that particular proposal into this amendment. Therefore, I would appeal to the Minister, even at this stage, to realise that in his efforts to do some good here, to meet certain objections of Members of this House; to meet their ideas and intentions, he has gone just a step too far. I would urge upon him that this amendment be taken back and looked at again. I would oppose it vigorously if it is intended to railroad it through the House.
I must say I despair——
Perhaps the Minister would give way to Senator O'Quigley?
I think I observed a note of despair about the Minister. I never despair of converting people like the Minister who have an open mind on problems of this kind. In this particular set of amendments we are obviously all trying to achieve what is best in the interests of the country and not to extend unduly the diplomatic immunities and privileges with which the Bill deals. One of the things we should recognise is we ought do nothing to prevent Irish citizens from being appointed as often and as numerously as possible to international organisations. I think Irish influence in those organisations is likely to be beneficial. Therefore, we should not do anything in this legislation, or in any other legislation, which would hamper or restrict the appointment of Irish citizens to international organisations. It seems to me, straight away, this amendment would do this when it says, in effect, to international organisations: "You shall not appoint the persons you want." That is what it sets out to say: "Unless you have the consent of the Irish Government."
That is not what it says; that is not what it purports to say; "that they shall not appoint a person living in Ireland to a job in Ireland."
I am speaking within the context of this amendment, where we are saying to an international organisation: "You shall not appoint an Irish citizen to a job" and, to meet the Minister's point, I shall go on to say—"to a job in this country, on your behalf, unless you have the consent of the Irish Government."
That is different from what the Senator said first. What the Senator said was that we were trying to prevent an international organisation from appointing Irish citizens to a job in the organisation, without the consent of the Irish Government. That is not what the section says, as the Senator has since admitted, but we will hear that allegation from him again, I am sure, when he is in some other place where he cannot be contradicted.
I may not have been as legalistic as I should have been but I do not always like to be legal and surround myself with parentheses. I am talking within the context of this amendment and I am saying that what this amendment does is to say to organisations: "No, you shall not appoint Irish citizens as officials of your organisation." Now, to please the Minister, I shall say: "To act on your behalf in this country."
Thank you for that.
The Minister need not thank me for that.
I like to be courteous.
The Minister is always courteous, but he should not get cross with me. I am trying to be helpful, as indeed I hope I always am; we ought to try to permeate as many international organisations as we can with Irish influence. That should be our objective, not unduly, but we certainly ought not to do anything which would restrict any international organisation, or hamper it in any way, from employing Irish citizens on their behalf, abroad, or in this country. We may be restricting them from appointing people, on their behalf, in this country if the Minister's amendment is accepted, and I do not think that would be a good thing.
Equally, I quite agree with the Minister and, indeed, as the Minister spoke in favour of his amendment my admiration for him blossomed, but the blooms wilted when Senator FitzGerald pointed out the error contained in the Minister's amendment. What we are all agreed upon—and I entirely support the Minister on this— is that we ought not to allow persons to be appointed in favour of the appointers of international organisations in this country who are Irish citizens and who can get all the diplomatic immunities and privileges as if they were foreign diplomats acceptable to the Irish Government, because I can envisage a situation in which such a person—who might be responsible but whose character might not be well known to the international organisation—would knock down somebody, say, the breadwinner of a family, and there would be no action at law to recover damages against that person because he was covered by diplomatic immunity.
I am all with the Minister that we ought not extend the area of diplomatic privileges too freely. But what we are doing in this particular amendment is creating an obstacle to international organisations appointing Irish citizens to do jobs of work on their behalf in this country. I think what Senator FitzGerald seeks in his amendment and what Senator Sheldon was seeking to do in the amendment he could not move was correct. The Minister might very well reconsider the position to ensure that officials shall not have the immunities and privileges unless their appointment is made with the consent of the Government—that is, an Irish citizen. The Government will then have the right of refusal; the international organisation is not hampered in its choice; it can choose who it wants but, if it wants a particular person and the Irish Government says "We are not going to grant him diplomatic immunities", then that is the affair of the international organisation.
If it wants a particular person to do a particular job, then it can have that particular person but that person would not have any of the diplomatic immunities and privileges. That is the way we ought to do it. In practice, the international organisation would not appoint a person the Government did not approve of but what we are doing in the amendment—it is a question of emphasis and I would ask the Minister to look at it again—is that we are making a barrier and laying down a rule of law to be observed by an international organisation in relation to the appointment of an Irish citizen, to act on behalf of the organisation, within the jurisdiction of this State.
What Senator FitzGerald is saying and what I should like to say is: "Very well, you can appoint whoever you want but if you want the diplomatic immunities and privileges accorded to that person, then you must get the consent of the Irish Government to that person's appointment".
The Minister's amendment does not seem to me to be right for yet another reason. I do not say this in any kind of carpingly critical way. If we wish to talk about officials and appointments and exclude the ad hoc appointment in a consultative capacity where immunities would not arise, we ought to specify that and to enlarge on it in the amendment. I do not know of any interpretation section which defines officials. A person might be appointed ad hoc to do one mission and it would seem to be the organisation who would have to apply to the Government to make an appointment of an ad hoc nature. If the appointment is of a temporary character, of short duration, that should not be necessary. If that is what we mean we ought to say so. If it is officials with an appointment of fairly long duration in the country, say of six or nine months, or if it applied to an appointment of an Irish person for six or nine months or a year and it might be desirable that these people should be extended immunity, then we ought to distinguish between the ad hoc mission and the appointment, even though temporary, of a more permanent character. The Minister's amendment does not meet the wishes of his side or of this side.
Mr. Garret FitzGerald rose.
I was about to call on the Minister to reply.
I was about to clarify the issue and make a proposal which might solve the problem and shorten the debate. The problem we are facing is that we want to control the immunities of experts which we feel should not be extended to Irish citizens in this country. I was disappointed the Minister did not advert to our difficulty, which is that we have bound ourselves by a variety of Conventions to grant such immunities unconditionally, without any condition as to the character of citizenship or otherwise. This may have been a mistake, an oversight, or it may have been forced on us by events.
I should like the Minister, in replying, to tell me, first of all, whether he has been advised that we are empowered, without breach of these Conventions, to limit that right. The OECD Convention itself makes no qualification in the matter of these rights for experts but it provides a means of dealing with the situation if we are dissatisfied with the nature of the immunity. It is under Part VII, Article 20, and it sets out that the organisation concerned may conclude with any member or any members supplementary agreements adjusting immunities. Here there is a provision to vary the immunities. The UN Specialised Agencies Convention attached to the Bill lays down provisions in relation to the abuse of privilege and the Minister might feel that the granting of such privilege to an Irish person in Ireland might be an abuse in itself. In such cases there is provision referring the matter to the International Court of Justice.
There is an international undertaking on our part to apply these immunities and the Minister's amendment, and perhaps mine but not so flagrantly, would be in breach of Convention. I should like the Minister to say if he has been advised whether our amendments, his and mine, similar amendments purporting to limit that right of Irish citizens, are in accordance with these Conventions. I feel both amendments might be in breach, mine being a minor breach, his being ultra vires.
My second problem is under what authority he purports to limit the rights of these organisations to make appointments. He is not proposing to limit the rights of Irish people to accept these appointments. That, if constitutional, might be legally possible and when I first saw his amendment and read it hastily I thought the reason he had adopted this procedure was because, recognising the danger of being in breach of these agreements, he thought he had found a way around this by limiting instead the right of Irish citizens to accept appointments. Even this he has not, in fact, done because, instead of directly attacking the right of Irish citizens to take up employment, he purports to limit the right of the organisations to make appointments. Not only would this be in breach of the Conventions but it is, in effect, an attempt to legislate for these organisations, which no Irish Parliament has the right to do. We could conclude agreements with these organisations to act or not to act but we have no power to legislate as to how they should act.
Thirdly, we are in evident breach of the Conventions by seeking to limit the application of these immunities. The Minister's amendment has at any rate been carelessly drafted because in the first place it does not accord with the Minister's amendments Nos. 1 and 7. The wording in regard to "persons performing duties" instead of "experts performing missions" is out of line with the rest of the Bill. Moreover, the phrase "experts performing missions" is mentioned in all these Conventions and this has weakened the force of an argument which either Senator Sheldon or Senator Sheehy Skeffington made. I forget the exact phraseology but it was suggested that perhaps what was meant here were persons performing duties, and this is too broad to fall within the point which I think Senator Sheehy Skeffington was trying to make in that respect.
I should like the Minister, in his reply, to state if he is clear these amendments are not in breach of the Conventions and also how he proposes to control by legislation the action of international organisations to make appointments here. I think those points should be dealt with. He has not, in his reply, adverted to them. Senator Sheehy Skeffington suggested that if the words "and obtain its agreement" were added to my amendment this would deal with this problem intelligently and would avoid a flagrant breach of those Conventions. Both of us were trying to see that those rights shall not be given unless they were asked for by such people, and if they were asked for the Government could say that such persons should not be appointed with such diplomatic immunity. Both of us were aiming at the same thing. We recognise that we would not bind those organisations completely and complicate matters.
I think Senator Sheldon's amendment is the best one. I was not too happy with it at first, but now I think it deals with this thing as neatly as possible. Because there is so much doubt in regard to this matter, and because the Minister's amendment is defective in not taking into account his earlier amendment, because it goes too far in interfering with the right of employment and because perhaps my amendment and Senator Sheldon's amendment would themselves be a breach of the Conventions and could involve us having to go to the International Court of Justice, for all those reasons, and in order to give the Minister and his advisers time for reflection on how to tackle this problem, I would be prepared to withdraw my amendment if the Minister would also withdraw his.
I think Senator Sheldon's amendment has technically been withdrawn because his amendment was taken with earlier amendments. I would certainly be quite prepared to withdraw my amendment if the Minister would withdraw his and consider what is the best course that should be adopted. I think the position has got so complicated that I almost regret having raised this point at all. I raised it by way of a query as to whether the Minister did not intend to do it. It appears he does not intend to do it. Our international obligations may make it difficult to get out of this commitment at this stage. I think all the reasons I have mentioned are cogent and if the Minister between now and consideration by the Dáil were to consider this matter further and bring in some amendment in the Dáil to cover this matter, I should be perfectly satisfied to withdraw my amendment. I am not fully satisfied that this is not a breach of any international convention and that it does not go further than is necessary to achieve the object which we all wish to achieve. I, therefore, suggest to the Minister that both amendments be withdrawn and that the matter be given further consideration. This might be the best answer to the matter at this stage.
I think anybody listening to Senator FitzGerald and not knowing what was really involved in this would agree with him that the matter has become complicated. I do not know any problem that would be so simple that could not be complicated by Senator FitzGerald if he once got loose on it.
I am sure that is intended as a compliment.
Senator FitzGerald, first of all, spent a long time here in the Seanad the last day complaining that the Bill, as it stood, would give the Secretary General of one of those international organisations the power to appoint some Irish citizen living in Ireland and that that would give that person immunity from arrest and detention, that he could not be taken before a court and that this was very unfair to the law-abiding citizens of the country who might be aggressed against this mythical official of an international organisation.
If Senator FitzGerald had not raised the matter at all things would have been reasonably simple because I do not believe that the Secretary General of any of those organisations would appoint an Irish citizen living here to be an official of the organisation without consultation with the Government. Indeed, he is under obligation to keep governments informed and also to see that anyone who is given an appointment which carries with it immunities, keeps within the law and does not get himself into a position that the Secretary General, in order to protect the interests of the organisation, has to claim immunities.
We are discussing experts rather than officials.
Experts and officials. This is one of the difficulties of the Bill. We are dealing in certain parts of it with the sort of language that is used by a number of international organisations and in other cases the words are those of the parliamentary draftsman and they are in keeping with the general wording of our laws. I want to say this. I do not think that anybody objects to conforming to the diplomatic immunities, the Convention of which was drafted in Vienna. That Convention, in Article 8, gives the right to the receiving State to refuse to accept an official.
An official appointed by a diplomat who has already been recognised. We can refuse to accept the diplomat. When he comes here we can also refuse the officials. We can hold out against the employment by the diplomat of an Irish official who does not get the consent of the Government. That is recognised to be a sensible way to establish international relations. After all, why are they coming here? They are coming here because they want to keep the relations between the two countries, the sender and the receiver, on an even keel. Why should a Secretary General of an organisation send an official here or employ an official here if there was any danger that the employment of that official or the sending of that official here would lead to bad relations between international organisations and the State here? There is, I believe, a good reason to think that if this Vienna Convention had been agreed on before those other Conventions were negotiated the Vienna Convention would have been taken as the basis of those other Conventions and they would have included in these various Conventions a clause similar to this one where a Secretary General of one of these organisations appoints an official or expert. In many of these Conventions "expert" simply means an official who is overseas for a few days. If the Vienna Convention had been in being at the time they would have incorporated a clause similar to this one and there could be no argument about it.
The words in amendment No. 11 "shall not be appointed" are in keeping with the words of Article 8 of the Vienna Convention which says in subsection 2: "Members of the diplomatic staff of the mission may not be appointed from persons having the nationality of the receiving State except with the consent of that State which may be withdrawn at any time."
That is an international Convention under which States agree what they shall not do. We are now enacting an Act of the Oireachtas purporting to bind an international organisation. The two are quite different. The Minister has, quite properly, changed the wording of the international Conventions to incorporate it into our domestic legislation. These changes were necessary, but in this case he has failed to do so and the amendment, as drafted, purports to control international legislation which we could do as one of a number of states signing a Convention but not as an Act of the Oireachtas.
The Senator should realise that what we are doing in this is preventing some person here in Ireland, an Irish citizen, claiming that he is a representative of an international organisation and claiming immunity when he is called up before the court.
We cannot prevent him being appointed. We can prevent him from accepting appointment.
We cannot prevent an international organisation giving him a piece of paper saying they hereby appoint him, but we can get our courts to accept that the Oireachtas here has a right to say whether that person has any right to claim the immunity, to say that he shall not be tried for robbery or whatever it is because he is an official of an international organisation.
That is what my amendment says.
That is exactly what Senator FitzGerald's amendment says.
The Senator is saying we have no right to say he shall not be appointed.
I did not say that. I said that we had no right to say that the organisation shall not appoint him which is a totally different thing.
If that is true, equally have we not the right to say, as the Senator is saying in his amendment, that the immunities shall not apply to an Irish citizen unless the Irish Government approve?
We have. My amendment might be in breach of the Convention but the Minister's amendment is ultra vires because it purports to bind an organisation outside this country.
It is a change of the Irish law within Ireland.
But the Irish law within Ireland cannot bind an action of an international organisation. It cannot bind a citizen not to accept an appointment.
It can prevent the citizen claiming international immunity.
That is not what it purports to do. It does not say anything about that. It says that the official "shall not be appointed" which purports to bind the organisation concerned with the appointment.
The only thing it can bind is the Irish courts.
In that case the amendment is pointless and ineffective.
We shall see.
May I ask the Minister whether he has been advised that these amendments purporting to limit these powers are in abrogation of the Conventions? I suggest to him that the best solution now would be for the various amendments to be withdrawn to give him time for reconsideration.
After hearing this discussion, I am even more satisfied than before that amendment No. 11 is the right one to go through with. There have been all sorts of allegations made here that it is anti-Constitutional and that it is ultra vires the international Conventions but I think that any sensible person looking at this and seeing the problem will agree that this is not so. Before giving an Irishman living here privileges and immunities very much greater or altogether different from the privileges that an ordinary Irish citizen has there should be grave necessity. This amendment will throw the onus on the Government to give ordinary Irish citizens an assurance that no person is misusing his appointment to do acts in breach of the Irish law. I do not think it is going to happen. I do not think these immunities are necessary for the ordinary correspondence type of work that a number of people are asked to engage in by the secretaries of these international organisations. I believe that amendment No. 11 will give the assurance that these international organisations cannot give immunities and privileges to our citizens here beyond what the ordinary citizen has without the consent of the Irish Government.
I feel that Senator FitzGerald has made an unusual suggestion in that he has suggested that both these amendments should be dropped leaving the Minister open to carry forward the Bill unamended in this respect to the Dáil. If between now and the Dáil he feels that on the whole amendment No. 11 is worthy of putting forward, he can put it forward and get it passed by the Dáil. If, on the other hand, he feels, on reflection, that it is not the thing to do he can leave it as we are prepared to leave it. I would be inclined to urge him to respect Senator FitzGerald's suggestion because I think it is probably the best solution for the reasons, the rather complicated reasons, but I think sound ones, put forward by him. I draw attention to the fact that the Government amendment asks that the person "shall not be appointed from among persons who are Irish citizens" whereas Senator FitzGerald's amendment asks that the immunities "shall not apply to an Irish citizen"et cetera. I feel, personally, that if I am forced as between these two I must vote for Senator FitzGerald's amendment. I should feel happier if the Minister would say: “All right, for the moment we are dropping this”. He may feel that he will be bound to introduce an amendment similar to amendment No. 11 in the Dáil in which case good luck to him. I think if it is opposed now many of us would feel that we would have to vote for amendment No. 12 and not for amendment No. 11.
I think we should pass amendment No. 11. Let me say that at least I have a precedent for incorporating the words "shall not be appointed". I have referred to that which is the basic Convention on immunities and privileges—the Vienna Convention—and so we are using these words "shall not be appointed". There is no precedent that I know of for the suggestion made by Senator FitzGerald, that the privilege shall not be granted except the Government agree. I think the amendment I suggest is clear, shorter and is more in line with the general Convention. However, we will, of course, have to examine this again, even though our amendment goes through, to see if there is some way in which it can be improved. I am perfectly satisfied with it as it stands. However, we will have a look at it.
There is one objection to taking both out. It would mean inevitably that if there was a section put into the Bill in the Dáil it would have to come back to the Seanad and this would drag out the procedure.
A fate the Minister wishes to avoid.
It will have to come back to the Seanad in any event.
If the Senators wish to put down a resolution, I shall be delighted to come back and I might have a few words to say to Senator G. FitzGerald if he puts down a resolution.
I think the Minister is in error.
I recommend that we pass this now and I need not assure the Seanad that if between now and the passage of the Bill through the Dáil I see that this section can be amended or improved in some respect, of course, I will do that.
- Ahern, Liam.
- Boland, Gerald.
- Brennan, John J.
- Browne, Seán.
- Cole, John C.
- Connolly O'Brien, Nora.
- Dolan, Séamus.
- Eachthéirn, Cáit Uí.
- Egan, Kieran P.
- Farrell, Joseph.
- Fitzsimons, Patrick.
- Flanagan. Thomas P.
- Honan, Dermot P.
- Killilea, Mark.
- McGlinchey, Bernard.
- Martin, James J.
- Nash, John Joseph.
- Ó Donnabháin, Seán.
- O'Kennedy, Michael.
- Ó Maoláin, Tomás.
- O'Reilly, Patrick. (Longford).
- Ormonde, John.
- O'Sullivan, Ted.
- Ryan, Eoin.
- Ryan, James.
- Ryan, Patrick W.
- Ryan, William.
- Sheldon, William A.W.
- Teehan, Patrick J.
- Carton, Victor.
- Conlon, John F.
- Crowley, Patrick.
- FitzGerald, Garret M.D.
- McAuliffe, Timothy.
- McDonald, Charles.
- McHugh, Vincent.
- Malone, Patrick.
- Mannion, John.
- O'Quigley, John B.
- O'Reilly, Patrick. (Cavan).
- O'Sullivan, Denis J.
- Rooney, Éamon.
- Sheehy Skeffington, Owen L.
Amendment No. 12 falls in consequence of that decision.
This is just a drafting mistake.
Number and Year
Extent of Repeal
No. 6 of 1967
Income Tax Act, 1967.
Subsection (3) of section 49 and sections 341 and 342.
No. 18 of 1957
Bretton Woods Agreements Act, 1957.
Paragraphs (a) and (b) of subsection (8) of section 3.
No. 22 of 1958
International Finance Corporation Act, 1958.
Subsection (7) of section 3.
No. 35 of 1960
International Development Association Act, 1960.
Subsection (8) of section 3.
There is one minor point, and this in relation to the first enactment, that is a subsection of the Income Tax Acts 1967. This Bill relates to diplomats, so it is fair enough from the point of view of such a Bill, but it strikes me that we have just consolidated the income tax law even though it seemed to cause some constitutional difficulty, and now we are amending the Consolidating, Act again. The reason that I raise this is that anyone in the future who wishes to know what the income tax law is and is presented with the Consolidation Act will have to look as well at the Diplomatic Immunities Act for amendment to the Income Tax Act. It strikes me that this is the sort of thing that leads to confusion——
And to the need for lawyers.
Something should be done about this sort of thing. There should be some cross reference somewhere, because people looking at the Income Tax Consolidation Act would not realise that within a couple of weeks in a Diplomatic Immunities Bill part of this Consolidated Act had disappeared.
I think that any diplomat coming here will, among the first things he does, look into how his income tax is going to be charged, and I am sure that the Consolidated Income Tax Act will be amended many times before the year is over, during the next few years at any rate. When we drafted this Bill and put it before the Seanad the Consolidated Income Tax Act had not been passed into law, and that is the reason why we have to amend this section.
The amendment is, of course, acceptable, but I should like to make one point in relation to the Income Tax Act which we discussed in this House last week. In the course of the discussion it emerged clearly, and the Minister for Finance made it perfectly clear and indeed emphasised the point, that the Procedure for the signature of the Acts would be that the amending Act which we were passing would be signed first and the principal Act afterwards. It is disconcerting to discover that this statement was not only incorrect as regards what was going to happen but, in fact, was contrary to the statement which the President had made to the Council of State prior to that, and that we were misinformed. This is of some importance because, if he had known of the stated intention of the President, the whole form of the Bill would have needed to be changed. I take the occasion of this coming up here again to protest against the misleading information of the Minister for Finance.
What we are concerned with here is the Income Tax Act, 1967, that it is now proposed to amend.
It is the form of signature that concerns me.
This hardly arises.
I note that the Minister did not exclude the possibility of amending the amendment that he was pushing through and I hope that the point made will receive careful consideration and that some further amendment may be made in the Dáil. I should like to thank the Minister for his courtesy in a prolonged debate on a technical point where he could understandably have been irritated by the length of time involved. I thank him also for the courtesy with which he dealt with the points. It is always a pleasure to have him in the House and I have enjoyed the debate but I do hope the Bill will be further amended in the sense we have suggested when it goes to the Dáil.
On a matter of procedure, if we agree "that the Bill do now pass" does that mean the Minister would have no further obligation even if he had no intention of amending or that the opportunity would not be left to him?
"That the Bill do now pass" this House.
There is another House.