This is the interpretation section. There are certain items which could have been defined but are not. An example is the issue of public order as against public policy. There is mention of "frontier" elsewhere in the Bill but it is a concept which could have been included in this section. We are talking about refugees who arrive at the frontier. This can mean several things to a refugee. It could mean the beach in Dingle, the international lounge in Dublin Airport or landing on an Irish registered ship in territorial waters. If somebody is born on an Irish registered ship in foreign waters they can validly claim Irish citizenship. What is the frontier? As we go through the Bill we will find other parts which could more appropriately have been included in this section.
Refugee Bill, 1995: Committee Stage.
I would like to echo what Senator Mulcahy said, particularly about public policy. I would also like to refer to a matter in which I have a substantial interest — and I praise the Minister for including it in the Bill. This is the extremely important question of sexual orientation. I fought long and difficult battles in this House to get it included. I met with considerable resistance, in particular from the then Minister for Justice and some of the civil servants who advised him.
I will illustrate why I think this is important and why its inclusion by the Minister is a progressive measure. I will refer to an article by Mr. Peter Tatchell, who is sometimes regarded as a fire-brand but who has done some extremely good research in this area. I place this in the context of the rise of Islamic fundamentalism, particularly in the Middle East but also in Asia and certain communities in Europe.
I raised this matter with a high powered delegation from the so-called Iranian Parliament, which I do not regard as democratic. I read into the record of the Oireachtas Joint Committee on Foreign Affairs the kind of extraordinary and brutal torture and murder which is inflicted on people accused of homosexuality and lesbianism. This can sometimes be a political accusation, as has historically been the case going back to the Middle Ages when certain Christian interests used such an accusation to justify the murder of political opponents. This is continuing in Iran.
I gave the committee some of the details, with which I have been made familiar, of the way people accused of this sexual orientation were treated in Iran. This meeting of the committee sadly took place on the day the late Mr. Brian Lenihan died. It was decided out of respect to go into closed session. I regret this and I think Brian Lenihan would also have regretted it because he was an extremely practical man and would have said "Let the business go ahead". This was a pity because the Irish people were deprived of the spectacle of the members of the Iranian delegation sniggering when I introduced this issue and then defending the kind of butchery about which I spoke. They did not deny or make any apology for this. They said these people are abnormal, this is the way they should be treated and this is the will of God. I would like the House to know the way they are treated.
In his article Peter Tatchell wrote:
The method of killing lesbians and gays in Iran, as prescribed by Islamic leaders, are: beheading with a sword, stoning to death, burning alive and throwing from a mountain top or high building. The death penalty applies not only to sodomy, but also to other sexual acts such as mutual masturbation and body rubbing on the fourth offence. The mere act of two people of the same sex lying naked together "without any necessity" is a crime punishable by up to 99 lashes. One man kissing another, even "without lust", merits 60 lashes. These floggings can cause permanent injury to internal organs, severe bleeding and sometimes death.
The Iranian authorities stepped up their crusade against homosexuality in 1990, with a wave of public executions. On the first day of the new crackdown, three gay men were beheaded in a city square in Nahavand, and two women accused of lesbianism were stoned to death in Langrood. Justifying these killings, the Iranian Chief Justice, Morteza Moghtadai, declared: "The religious punishment for the despicable act of homosexuality is death for both parties".
Simultaneously, Ayatollah Ali Khameni denounced "homosexuality, male and female". He condemned Britain and the United States for promoting gay relationships, [Mrs. Thatcher, no doubt, would have been amused] falsely claiming the two countries had legalised marriages between persons of the same sex. Homosexuality was, he said, a symptom of the decay and corruption of western culture.
His colleague, Ayatollah Musavi-Ardebili, demanded the strict enforcement of Islamic punishments for lesbian and gay sex. Describing procedures for the execution of homosexuals, he told students at Teheran University: "They should seize him (or her), they should keep him standing, they should split him in two with a sword, they should either cut off his neck or they should split him from the head... After he is dead, they bring logs, make a fire and place the corpse on the logs, set fire to it and burn it. Or it should be taken to the top of a mountain and thrown down. Then the parts of the corpse should be gathered together and burnt. Or they should dig a hole, make a fire in the hole and throw him alive into the fire.
Senator, you are making a Second Stage speech rather than speaking on the section.
No, I am not. I am making an extremely important point which I was deprived of the opportunity of doing at the meeting of the Oireachtas Joint Committee on Foreign Affairs because it went into private session. I wish, with your indulgence, to read one more sentence. The article continued:
"We do not have such punishments for other offences", boasted the Ayatollah. "There cannot be the slightest degree of mercy or compassion... Praise be to God".
It is for this reason that I should be allowed to express the sincere thanks of gay people, not just in Ireland but throughout the world, and also of all decent, civilised and tolerant people for the significant advance in including sexual orientation in the Bill. It is important that we realise this is not just a token gesture; it deals with a real situation which is being confronted on a global basis. The torture and persecution of gay people is something of which the Iranians are not just unashamed but actively proud. They gloat and snigger when they are confronted with their misdeeds in this area. I sincerely thank the Minister for including this important phrase.
I praise the Minister for the broad interpretation she has put in the Bill and I am glad she has stated that people sometimes have to be protected irrespective of gender. For example, in a recent appeal in the United States a teenage girl was granted asylum because she feared genital mutilation in an African country. I am grateful to the Minister for having put this section, and the section that Senator Norris mentioned, into the Bill.
Can the Minister of State indicate the difference between authorised officers, as defined here, and immigration officers? I am sure they are not one and the same person, so can she indicate what each one's function is?
Can the Minister of State also indicate the number of regulations and extended regulations that are likely to be made apart from the Bill itself? Most Members are aware that regulations occasionally can be more extensive than a Bill itself. I presume the intention is to make a number of specific regulations arising from this, so can the Minister of State indicate their extent, when they will be made, the areas they are likely to cover and whether we will have an opportunity to debate them here?
Section 24 deals with programme refugees but that does not appear to be defined within the definitions. Is there a reason for that?
It is because of the section.
I want to return to the point about public order raised by Senator Mulcahy. It is crucial that the Bill should contain an interpretation of public order. I had intended tabling an amendment to section 4 of the Bill which is the first place in which it is mentioned. There was a long debate on Committee Stage in the Lower House. I did not have the opportunity to go through it, although I considered the Minister's reply to it. I have to say, although not in a nasty way, that there was some confusion about the Minister's answer in some parts of which public order was confused with public policy.
Having checked the definition of public order in a recent edition of Murdoch's Dictionary of Irish Law I decided not to table an amendment because the Minister was, in fact, correct. To enforce that argument I obtained a 1988 edition of the same dictionary from the Oireachtas Library. While I do not have the current dictionary definition of public order with me, from memory it is different to this one, which deals with “evidence of matters which may not be given on the grounds that the disclosure would affect the security of the State or the administration of justice”. The current definition in the 1994 or 1995 edition of the dictionary refers to the fact that the whole issue of public policy “would be injurious to the security of the State”.
That is one side of it, but there is also confusion among lawyers over interpretation. I recognise that it is a difficult issue. There are reasonable people in this House and we are not raising issues in order to be mischievous, but there is a problem with this definition. The Minister can hammer this out and argue over it for the remainder of the debate, otherwise the Government may lose the vote if it comes right down to it. There is a genuine problem over what is meant by public order and public policy. The "ordre public” wording in the Geneva Convention seems to translate very closely into the area of public order as I understand it.
There is a further difficulty in that if the Minister does not insert a definition of public policy, there is another more colloquial interpretation of it which, in effect, refers to the policy of the Administration of the time. That is also a correct usage of the term. Therefore, unless the Minister puts a definition into section 1, it will be open to that misinterpretation. It will also be open to difficulty whenever it is challenged in court. If someone seeks a judicial review of a decision taken under the very sections of this legislation, this matter will definitely arise.
To prove my point I will take a completely ridiculous example following Senator Norris' references to sexual orientation. If a particular country decided that a Moslem couple had contravened public policy by refusing to accept equality for women, then —despite that country's discrimination, as we would see it — the couple would not be entitled to remain in that country. There are all sorts of interpretations of public policy regarding racist laws elsewhere and, although this legislation mainly affects Ireland, the third country debate could widen out to other areas.
An argument can be made for having a definition of public order inserted in the Bill. The final, technical and political reason for so doing is that it would defuse the argument we will have throughout this Bill's passage over what is meant by public policy and public order. Since both terms are used in the Bill, it is crucial for the Minister to insert a definition. If that were done, neither I nor Senator Mulcahy could claim it meant something else. Once the Bill states what it means there cannot be any confusion, nor can it be used as an argument in a judicial review or in any interpretation of this legislation that may have to take place when it becomes law. The Minister should return on Report Stage with a definition of public policy. The Minister's definition will be acceptable to us because we are only seeking clarity.
On behalf of Members, I wish to welcome the Slovenian Foreign Minister, Mr. Zoran Thaler, to the House. I hope he will have an enjoyable visit.
To take up Senator Mulcahy's point, the concept of frontiers is well established as being the ports or borders of a country. Approximately one fifth of those seeking asylum here do so at our frontiers — in other words at our ports or Border. The parliamentary draftsman is the expert in drawing up Bills and decides what is appropriate to be defined in the Bill. The concept of frontier is well established in international law. The Senator may be interested in the fact that approximately four-fifths of asylum seekers are already in the country when they apply. In other words they are people who, sometime after arriving here, go to the Department of Justice to make an application for asylum.
I thank Senator Norris for his comments on the definition of particular social groups. As the Senator is aware, this Bill had its genesis in an earlier Bill in 1994. I read carefully the debates and contributions made by various people inside the Oireachtas and outside. It seemed that the Geneva Convention, which was framed in 1951, did not take specific account of three groups where persecution, by virtue of membership of a particular social group, could lead someone to have a valid case for asylum. The first group related to people involved in a trade union, the second related to people of a particular sexual orientation and the third involved the issue of gender. Since I took office as Minister of State at the Department of Justice I have examined applications from time to time and it seems that there is an absolute need to broaden the definition of the words "refugee" and "social group" to include these groups.
The Senator spoke eloquently about the persecution of people of a particular sexual orientation because of that orientation. That matter is now well documented internationally. In that context, I hope the Bill, when passed into law, will act as a trigger for this issue to be taken into account in other states——
——and set a headline in terms of the development, in a broader European context, of refugee legislation.
Senator Henry pointed out that there are well documented cases where women in certain countries can face persecution, or processes which amount to persecution, just because they were girls or women. The same point arises in the case of members of trade unions.
In terms of the Geneva Convention, it must be understood that, as we move toward more broadly based concepts of human rights, religious and cultural traditions do not excuse persecution. This is a matter for ongoing debate among international fora and it is here that we should strike our mark. There should be accepted norms in relation to human rights, and cultural and religious tradition are no excuse for violation of those norms.
That is the position from which we must begin.
In relation to the points made by Senator Daly, an authorised officer is, in the context of the Bill, an officer of the commissioner involved in the application process and the hearing of the application. Immigration officers are those officials, generally gardaí, who are stationed at ports and points of entry to the country. I will deal with the regulations in relation to different sections as they arise.
I appreciate Senator O'Toole's concerns in relation to public order or the translation of "ordre public” and the question of “public policy”. This matter will be dealt with in some detail by amendments Nos. 2, 25, 30 and 36. Therefore, I will not enter into a debate on the subject at this time. The question of translating “ordre public” in the Geneva Convention was raised by the relevant Dáil committee and I sought the advice of the Attorney General as a result. I am satisfied, having carefully examined the matter and taken into account where “public policy” is used as a translation for “ordre public” that “public policy” is the correct translation. However, I take the Senator's point that in popular parlance — in some cases, not all, but in the European Treaties, for example — the translation of “ordre public” is “public policy”.
It is not.
"Public policy" specifically does not mean the policy of the Government of the day.
There was a lengthy debate on this on Committee Stage and a number of the members of the committee who are members of the legal profession were quite satisfied that "public order" has a much narrower meaning. In relation to "public order", we are essentially discussing the concepts of law and order. "Public policy" involves a sense of the general concept of Ireland, it is not the policy of the Government of the day——
That is very dangerous.
——or any particular party.
The Minister of State is making a good case for our side of the argument.
She is legislating for prevention.
No, I have taken the Attorney General's advice on this matter——
The Minister of State put it in the Bill.
——who re-examined it at my request. Senators O'Toole and Norris have raised serious questions, but I am satisfied — when we deal with section 2 I will outline the legal history in relation to the translation of the French term "ordre public”— that “public policy” is the correct term to use. This matter will be dealt with in detail on section 2 of the Bill.
I echo the ad lib comments made by some colleagues. However, I appreciate that the Minister of State is acting on advice she received which she indicated she would provide to us at a later stage. As Senator O'Toole stated, this section involves definitions. Every word or phrase in its natural and ordinary meaning are capable of being defined. If they cannot be should not be included in any document because people will not understand them. To a certain extent we are caught because we would be happier if the Minister of State gave a commitment that she would put in a definition of “public order” on Report Stage.
I have received documentation from the United Nations High Commissioner for Refugees which includes a commentary on the preparatory papers by Dr. Paul Weis, published by the Cambridge University Press in 1955. The title of that commentary is Extracts from the Refugee convention 1951 —Travails Preparatoirs. The issue of the meaning of the term “ordre public” was considered at length by the drafting committee, which stated that while several members expressed dissatisfaction with the vagueness of the term “public order” and the vagueness given to the term in different countries, it was felt necessary to take into account the jurisprudence which this term had acquired in certain systems of law. The committee went on to state that the proviso relating to national security, particularly that relating to public order, seemed to the Egyptian representative's organisation to be far too vague and consequently harmful to the interests of refugees. The committee also stated that these provisions should be very clearly defined.
The UK representative stated that the expression "public order" presented definite difficulties in common law countries which did not possess the same legal connotation in continental jurisprudence. I am sure the Minister will agree this is a difficult area. However, it is all the more difficult because the effect of including the words "public policy" in the Bill could have the ultimate effect of negativing the import and intention of the Geneva Convention.
I will not quote recent controversial cases, but it is well known that a gentleman from a Middle Eastern country was initially refused asylum in the United Kingdom recently and it subsequently transpired that the main ground for refusing his asylum application was public policy. The British Government was afraid of losing business and commerce with a certain Middle Eastern country.
A broadly known public policy in Ireland is that we seek to improve and increase the prosperity of this country through international trade. If the words "public policy" are included in the Bill, it would open the door to the possibility that a Minister could say asylum cannot be granted to a person on the grounds that we will lose business with another country. It is easy to gloss over this issue and accept the Minister's reassurances. If the Minister agreed, I would be happy to leave the definition section in abeyance for now and move on to the next section. The Minister could reflect further on this matter before we returned to it. It is the strong view of this side that the phrase "public policy" is too broad and capable of abuse.
In case anybody thinks the United Nations Commission for Refugees is being partisan by just briefing Fianna Fáil, and Senator Mulcahy in particular, all Members received the briefing material. I make this point so it does not appear any group is receiving special favour. The same applies to the amendments. We all received briefing documentation; it is not a bagatelle in terms of what gets in first. All the information is useful.
I support the argument effectively made by Senator Mulcahy. I remember the case in Britain, which involved Saudi Arabia. Considerable pressure was brought to bear on the United Kingdom authorities to deny asylum for political reasons. It was subsequently found that this was not justified and the man was eventually allowed to stay. By including the words "public policy", the Minister is opening up the possibility of pressure from external sources operating on or through the Minister for Foreign Affairs. This is extremely dangerous and there is no doubt that pressure will be applied. The Minister will have no excuse or alibi which would allow her or him to say that only public order is mentioned in the Bill and there is no provision for political pressure groups. However, these will be provided for if the words "public policy" are included. This is most dangerous.
The Minister ably made the case for our side by indicating that policy may change and that it may have something to do with Irishness. It is not appropriate to have these types of mutable concepts everlastingly brought into play in terms of political pressure. The Minister has been badly advised, but she is not the first to have been incorrectly advised by officials in the Department of Justice — I am not referring to the officials in the House. Misinformation was given in the past and I was in a position to contradict it by putting factual material on record of the House. I can indicate in previous debates where advice was incorrectly, although not maliciously, provided. I am sure no Member of the House needs to be reminded that even Attorneys General have been known to give inadequate or inaccurate advice which was subsequently challenged.
Members of the House received extensive briefings from interest groups, such as Amnesty International, the Refugee Council and the Rescue Trust. My information is that "ordre public” means public order. I do not have many qualifications, but I speak a little French and I used to teach English. It is a reasonable assumption that “ordre public” means public order. If that is not the case, will the Minister explain why that meaning is accepted in all European Union countries? There are precedents in the Irish administration where the phrase “ordre public” is already translated in the European convention as public order.
It is translated in the European Convention as public policy.
I am prepared to accept it if the Minister is stating that as a fact. Perhaps I misunderstood my notes.
I feel strongly about this matter, as do Senator Mulcahy and Senator O'Toole, but I hope it will not be pushed to a vote at this point for technical reasons. If there is a vote, it will be the end of the matter. It is much better to reason it out now and give the Minister room to manoeuvre if we manage to convince her to introduce an appropriate amendment on Report Stage. It also gives Members the opportunity to gather troops to ensure that, if she does not introduce such an amendment, the Government can be defeated.
Will the Minister indicate why this is a problem? I hope I am not straying too far from the section but I wish to illustrate where this matter will operate subsequently in the Bill. Section 18(5) allows the Minister a discretion to refuse permission to enter or reside in the State to a family member on the grounds of public policy as well as public order. The words "public policy" are also a cause of concern and it must be assumed they were intended to refer to public order. If so, the word "order" should replace "policy".
Section 21 (1) (g) allows for revocation of a declaration on the grounds of public policy as well as public order. It must be also assumed that this was intended to refer to public order and it should be accordingly amended. The power of revocation of a declaration and the issue of a notice requiring an asylum seeker to leave the State should lie with the appeal board following a re-examination of the facts of a particular case and the hearing of representations by or on behalf of the applicant for asylum. If the intentions of the convention are to be met, it should not lie with a Minister.
These are two practical examples where there could be a possible malign application of the phrase "public policy" as included in the Bill. I do not suspect the current Minister or Administration in that regard; I do not think it is in the Irish character to do it. However, the possibility will be there if this phrase is in the Bill. It provides a possibility for the most dangerous type of external political interference in the welfare of asylum seekers, and that is inappropriate. There are certain definitions of who should be entitled to refugee status and granted asylum. This matter should be decided on clear grounds, determined by the immediate personal circumstances of the person applying and not on questions of policy. I cannot imagine an argument against this point.
As far as possible, we try to work through a spirit of co-operation in this House. However, I am getting the impression that the Minister has set her face against accepting any amendment to this legislation. If that is the case, then so be it and we will go through the Bill in a manner of conflict and confrontation. That is not the tradition of this House, but if that is the only way it can be done then so be it.
The Minister has by her own words accepted that there is some confusion about this terminology; but on the other hand she said she understands it perfectly. I am sure both herself and her Department understand it. The Minister said it had been debated at length in this and the other House. That is true. However, it is of no value in terms of admissibility of evidence if this ever came under judicial review or consideration in the court.
The Minister mentioned that she received the legal advice of the Attorney General to guide her, on which she based her decision. While that is all very well, it is of no use to the rest of us or to people down the line. The Minister said there are differences of interpretation throughout Europe on this issue. Since this is a complex international matter, with special regard to European countries, and taking into account the global impact of this legislation, that is another reason why there should be no doubts about it. The Minister is not being asked by anybody on this side of the House to change anything in this Bill but to put into it what she says is the fact. We are asking her to eliminate the confusion and ensure there can be no doubt down the line by putting what she feels is the interpretation into section 1.
I vehemently disagree with the Minister's first point, that the draftspersons decide what should be part of the interpretation section. That is incorrect. The Houses of the Oireachtas decide which words need interpretation, not the draftspersons. Draftspersons draft; we amend, modify, change, accept etc.
It would not be our intention to push this section to a vote because we cannot afford to lose it. If the Minister does not give us a guarantee to bring forward an amendment in her own words dealing with matters as she sees them and not changing the nature of the Bill in any way, we will be forced to introduce an amendment on Report Stage which will be fully supported by this side of the House. That is unnecessary.
Our arguments are sincere and well reasoned. The Minister should accept our position. Putting in a definition in this section would save arguing about section 4 and the consequential changes down the line. Once she has defined it, we no longer have an argument about the wording. Our difficulty is not with the Minister's interpretation but that the words as they stand lead us to the view that they can be interpreted differently, and perhaps vexatiously. For that reason I strongly urge the Minister at this stage to consider our arguments and undertake to bring back on Report Stage a definition that is acceptable to all. There will be no difficulty about that because I do not hear any differences between what the Minister says it does mean and what we say it should mean.
I want to pick up on a fundamental point made by Senator O'Toole. I have not had to allude to the degree to which there is an anti-democratic ethos prevailing within Government for a while but I must do so again on this occasion. The Senator is right in saying that we legislate and decide on these matters. In these circumstances it behoves the Government to remember the voting balance in this Chamber. I do not mind what legislation the Government brings before us — that is its right — but there is an increasing tendency on its part to believe that the Executive decides and we are only required to rubber stamp its decisions. That is not the case and long may it remain so.
The very nature of the debate underlines the need to clarify the situation within the legislation. There seems to be different definitions of "ordre public” and “public order”. Therefore, why is it not possible within the ambit of the legislation to define the term so there is no confusion?
I accept the Government is coming to this matter with a liberal perspective. It is the intention of the legislation to ensure that persecuted people are afforded asylum within the country. If that is the case, it strikes me as even more necessary to clarify what is meant by these terms. If we do not do this, it is open to some less enlightened Minister and Administration to use them at their discretion. I am worried on the occasions when we get the Attorney General's definition because frequently in the past his ruling has proven to be incorrect. If we are approaching this from a liberal perspective, that persecuted people need to be taken into the country, then this is an important matter. Why is it necessary to define "the Geneva Convention" and then to include it in the body of the Bill when it is clear from the Bill what it is? Why is it necessary to define "information", a much less clear cut term, "broadcast" and "written publication" and not define this term? The debate has underlined absolutely the need for clarity on this matter. It will be open to some Minister at some stage to be discretionary and to exclude people who should otherwise be allowed into the country.
I add my voice to this concern. This House is anxious to support, strengthen and help this progressive Bill. On those grounds, I have serious concern with anything in that Bill about which there is a doubt.
I was involved in a Supreme Court case in 1970 over the word "discrimination" under Article 40 of the Constitution. The Supreme Court eventually made a decision on the basis of the Irish language. It was seeking "discriminate" and it found that the word used in the Constitution was "idirdhealaím", which means "distinguish between", not "discriminate against". If there is a doubt about a word, it is bad law and legislation. We are not talking about section 4 and the difference between "public order" and "public policy" but the meaning of "policy".
If we are asking, in the interpretation in section 1, to explain "applicant", we should be able to know the exact meaning of "policy". It is an essential point if we are to make this legislation strong, one about which there will be no doubt, which will be able to stand up in court and about which those whom this Bill is designed to support will have its strengths rather than its weaknesses. I urge the Minister to tell the House that she will bring in a clear definition of "policy" on Report Stage.
I have just made a request to some assistants to provide me with a convincing precedent of the translation of this phrase. I hope to be in a position later in the day to put this precedent on the record, although I am not certain if that is possible. I am making every effort to do so because it is only fair if one makes assertions, as I have done, to be able to substantiate them.
I wish to raise the question of what "policy" means. This is the question that Senator Quinn raised so effectively, illustrating it by reference to the fact that the Constitution of Ireland is effective in the first national tongue, and the phraseology used in that language is the significant legal one. Where there is a variance, the Irish version takes precedence. That indicates the very significant importance of having clear definitions: they may become subject to doubt. In terms of policy, Ministers and Governments are human. I do not want it to be thought that any of us were attacking this particular Attorney General, who is an extremely decent man, as were virtually all his predecessors. We are not doubting this Attorney General; we are saying that Attorneys General in the past have given bad advice, as have politicians. Politicians have made dubious decisions in the past in policy areas. One need only look, for example, at the passports for sale situation where policies clearly came into matters of the determination of who should be sold Irish citizenship. If this can happen in matters of Irish citizenship, I do not see why it should not happen as a result of political pressure with regard to the granting of asylum.
Senator Mulcahy made the case very effectively about the Saudi Arabian man who was denied asylum in the neighbouring jurisdiction, not on grounds of public order, which would have been legitimate, but clearly on terms of public policy, because of the self interest of the Conservative Government in maintaining good relations with the Saudi Arabian regime, which is most certainly not a democracy. It is a highly religious regime, no doubt, but it is not a democracy.
The Minister will have to assuage certain fears and concerns widely held by those organisations which service the needs of refugees. For example, I have been prompted to ask whether there is a public policy, for example, in existence at the moment or a rapprochement between Ireland and Vietnam to such an extent that for reasons of trade, Vietnamese family reunification is being halted. Refugee agencies appear to believe that the Government has no intention of reuniting the number of families seeking it because it does not want to alienate the existing Vietnamese administration.
The Minister is a long time in politics. She is a very experienced and able person, and must be aware of these kinds of pressure. I remember going into a meeting of the Oireachtas Joint Committee on Foreign Affairs with my dear friends, the Iranians, and it was perfectly obvious that I was going to ask them about the treatment of the Baha'is, Jews, lesbians and gay men, the treatment of other minorities and the fatwah on Salman Rushdie, which I did. It was whispered to me that Government representatives were not seeking to limit my freedom of expression, but I was asked to for God's sake remember that £97 million worth of beef deals was riding on the meeting. That was said to me to put the meeting into context. I did not regard it as unwarranted pressure. I thought it was a rather interesting consideration.
I am a backbencher, and independent Member of the Oireachtas. I can say whatever I please to anybody and I do; but if I was a Government Minister and I was asked to grant asylum to somebody who might cause trouble to the Iranians, the Vietnamese or somebody else, I might have a very good heart and very good intentions in this matter but I might become subject, even at Cabinet level, to very considerable pressure from the Minister for Finance, because another £97 million worth of beef deals would depend on our sucking up to the Iranians and their appalling murderous barbarous regime. These are our areas of concern and we need to be very strongly reassured on them. To date, with the best will in the world, the Minister has not reassured me.
I wish to give another example of where policy pressures can override human rights considerations. The House will remember that just over a year ago there was a major bombing in the United States in Oklahoma. Following that there was a tremendous furore about bringing in anti-terrorist legislation, even though the people involved in the bombing appeared to have been American citizens. I was in America when the legislation was being discussed in Congress and there was a tremendous sense of urgency about getting it through before the first anniversary of the bombing.
Despite the fact that the President was apparently very much against one section of the Bill, which I will comment on now, as was Senator Edward Kennedy and a considerable number of other people within the American Congress, because of policy pressures they did not feel they were in a position to exclude this section of the Bill. This section of the Bill is section 504 K and it deals with situations in which there is no right to ancillary relief. Under this section, the judge is prevented from considering or providing for relief from removal based on asylum under section 208, the withholding of deportation under section 243 H, the suspension of deportation under section 244 (a) and 244 (e), the adjustment of status under section 245 or registry under section 249. These are all sections which have to do with appeal.
There was a considerable amount of concern when I was in the United States about this measure. There was great pressure within the American legislature at the time to get this very strong anti-terrorist legislation through, but this provision was going to effect asylum seekers, a much larger group of people. I bring this to the attention of the House as another area where policy at a particular time has overridden any human rights considerations which even the most liberal of Governments might feel were much more serious aspects of the whole legislation.
The Minister was quite rightly praised for adding to the definition in relation to sexual orientation and so on. In one part of the Bill the Minister has added concepts or changed words and argued that to some extent she is hidebound by the translation of the expression "ordre publique” as “public policy”. In the same way as she changed the definition of membership of a social group, she has ample opportunity to change the understanding and interpretation of the phrase “ordre publique”.
I thank Senators for the various points they have made. In relation to my attitude to the Bill, I have accepted amendments from Senators in a number of areas and I would not, therefore, accept the point made by Senator O'Toole that this Bill is not open to amendment. I appreciate the concerns Senators are expressing about the translation of "ordre public”— Senator Quinn's point is particularly important here. However, we have examined and given much thought to this, having taken legal advice from the Attorney General and others. I think if one opts for the term “public order” one would defeat the case the Senators made.
To take Senator Henry's argument about the United States, "public order", which is concerned with law and order, would be a much stronger dictator of action in relation to the Oklahoma bombings, etc., than would the concept of "public policy", which would include the fundamental rights provisions of the US Constitution. The Senators would then be defeating their purpose. This point was made particularly eloquently by one Member of the Dáil with whom I had a long and detailed discussion. In the end, he came to share my view. To quote from the Weis document, mentioned by Senator Mulcahy:
The discrepancy between the English and French terms was recognised and debated extensively by the body which drafted the convention. The memorandum of the executive secretary to the conference of plenipotentiaries, which adopted the convention relating to the status of refugees on the term "public order" [stated that] the Secretary General considers the use of this expression raises serious questions of substance and consequently feels obliged to draw the attention of the council to the following legal considerations. First, it should be observed that the English expression "public order" is not the equivalent and is indeed substantially different from the French expression "ordre public” or in Spanish “ordem publico”. In civil law countries the concept of “ordre public” is a fundamental legal notion used principally as a basis for negating or restricting private agreements, the exercise of police power, or the application of foreign law. The common law counterpart of “ordre public” is not “public order” but rather “public policy”. It is this concept which is employed in common law countries to invalidate or limit private agreements of the application of law. In contrast to this concept of “public policy”, the English expression “public order” is not a recognised legal concept. In its ordinary legal sense, it would presumably mean the absence ... [This is why the use of the term “public order” could be potentially quite injurious and dangerous to some of the examples the Senators have sought to protect or enhance. I came to this view after long thought and consideration of this matter.] This notion is far removed from the concept of “ordre public” or public policy.
The problem is by no means unique to the 1951 Convention on the Status of Refugees. Other international agreements where a similar drafting technique is used include Ireland's double taxation conventions — the majority of such agreements contain a provision allowing for the exchange of information. Such provisions contain a clause limiting the obligation to exchange information where the disclosure would be, among other things, contrary to public policy. This is not the narrow, law and order definition — it is a much broader concept. There are in excess of 20 such agreements in force at present, all of which have been approved following the passage of resolutions in the Oireachtas. The most recent agreements were approved in 1995 and I am not aware that the public policy/ ordre public issue was a cause for concern in the approval of any of these orders or any orders implementing these agreements. Furthermore, as I said to Senator Norris, Article 36 of the Treaty of Rome — the founding Treaty of the EU — translates “ordre public” as “public policy”. It is clear from these uses of the French expression in English texts that the drafters of the instruments were conscious of the inadequacy of the English phrase “public order” to encompass the depth of meaning of the French expression “ordre public”.
When the Bill goes into law, it remains until such time as it is amended, so I am specifically concerned that in going for the narrower definition, Senators may defeat the purpose they spoke about so eloquently. The courts are the final arbiters in these matters and my understanding is that in the UK case referred to by Senator Mulcahy, the application was upheld on the grounds of public policy. One of the arguments in this case was that commercial interests were at stake. If a factory in Ireland was to lose jobs as a consequence of one asylum seeker and the narrower, "public order" definition applied, implying the potential for public disorder, I could envisage that a Minister for justice to whom this concept was offered would be more directed to take a narrower definition than if she was faced with the broader concept of public policy which would encompass constitutional protections.
I appreciate the difficulties but I assure Senator O'Toole that by no means do I not heed what he says. I have examined this matter at great length — it is a question of translation from the French and there is a body of evidence showing how this translation has been used. It has come before this House in relation to the Treaty of Rome and the taxation agreements. While I appreciate the reason the Senator proposes the amendment, I feel it may defeat the cause he is putting forward. That is my view both as a Minister of State and as an individual, and it is not solely based on advice from the Attorney General. I am not a lawyer, which is a disadvantage. However, having listened to the advice which, as a Minister, I am obliged to take from the Attorney General, having read the various documents available and having considered cases such as that raised by Senator Mulcahy, it is my considered view that "public order" is a more dangerous translation than "public policy".
I remind Senators that we have given well over an hour to this section.
We are not all that eloquent because we have failed to make the point to the Minister. Either her argument is specious or she totally misunderstood us. Did she indicate that she is worried that the definition "public order" would be too narrow and would tie the hands of a Minister?
I indicated that in my reading of the Protocol of Accession there is a well considered series of arguments which strongly advises that the French and English terms have equal standing and that the appropriate translation of the French phrase "ordre public” is “public policy”, after a debate similar to the one we have had here. My belief is that the term “public policy” is a better term because it is broader but it does not mean — as is set out in various legal judgements and which is the nub of some Senators' concerns — the policy of the Government of the day. The term “public order” is a narrower one which could be injurious to the case Senators have made and the types of examples given. I believe that “public policy” is a better translation and is one which has been used by the Houses of the Oireachtas.
I ask the Minister of State for her undivided attention on this point. That is not what the argument is about, everybody here accepts all that. Can we move forward without restating that? The Minister of State has made a very valid argument that "public policy" is a better term than "public order". I am not arguing that particular narrow point. The confusion has been created because we have tended to replace the term "public policy" with "public order". However, as I said, what we intend "public order" to mean is what the Minister of State interprets "public policy" to mean.
There is one simple way for the Minister of State to prove us wrong by writing into section 1 what is meant by "public policy". I need to make this point clear. The Minister of State does not need to argue with us about the narrowness of "public order" but simply to write down what "public policy" means. All arguments finish at that stage — game, set and match to the Minister of State — with no further mis-interpretations. Can we narrow it down to a definition of "public policy" with which we can all live?
I hate to say this but Senator O'Toole took the words out of my mouth. The Minister of State made a very eloquent argument for the proposition that "public order", in the context of the Geneva Convention is not a good translation of "ordre public”. I thank her for educating me on that point.
As Senator O'Toole said, if something is incapable of definition or of meaning and understanding, it has no place in any legal document. People are entitled to understand what they are reading and the laws of the land. It is possible that the phrase "ordre public” is not capable of a sufficiently good definition for the purposes of this Bill. In some of these international organisations, there is jurisprudence the length of Croke Park and back on what “ordre public” means.
If we, on this side of the House are prepared to accept that "public order" is a bad translation of "ordre public”, then until the Minister of State defines it she must accept the possibility that the words “public policy” are also a bad translation of the phrase. The demand on this side of the House is for clarity and for definition. We want the phrase “ordre public” described or translated. If it is to be translated into the phrase “public policy”, we, as an Oireachtas — those who are elected and selected to draft and frame legislation — want to decide exactly what the ambit of the phrase “public policy” will be rather than a High Court or Supreme Court judge. We want to face head on exactly what it does and does not mean. The Bill is lacking, in that it does not precisely delineate what it means. Senator O'Toole's suggestion to ask the Minister of State to come back to the House with either a description of the phrase “ordre public” or a further delineation of the translation of “ordre public” into “public policy” is excellent.
I support what Senator Mulcahy has so effectively said. I am a little bemused by the fact he said that Senator O'Toole took the words out of his mouth and has now said he thinks Senator O'Toole's suggestion is an excellent one. I dread to think in what part of Senator Mulcahy's anatomy this suggestion of Senator O'Toole's might have been located originally. However, the points were well made by both of them.
Can we have a definition of that, please?
Exactly, the point is about definition. I do not think any of us suspect the intentions of this Minister of State or her advisers, or their expertise, which is considerably greater than ours. Senator Mulcahy made the very important point that law should be accessible to the citizen. It should not be written in a language of mystique and confusion. The debate has suggested to me there is some degree of confusion here.
I am also concerned about this business of policy, and not just in this Bill. "Policy" is creeping in nastily all over the place. It is an attempt by Government to extend its influence to all kinds of spheres where it is not appropriate. I made this point in the debate with the Minister for Education where this business of policy intruded into attempts to intervene in university administration. Of course, the Minister of State is not responsible and is disclaiming any connection with this. However, policy is coming in here, and it should be fought.
These definitions are extremely important. I remember a previous case where we were dealing with the question of public order and morality. There was a debate as to whether "public order and morality" should become "public order and public morality".
I believe the Minister can meet the requirements of the situation and we can advance. As the Leas-Chathaoirleach has pointed out, we have spent a long time on this issue, although it is very important. This is precisely the kind of debate we ought to have in this reflective Chamber of Parliament. However, the Minister can meet the issue by giving an undertaking to look at the question of putting a definition into this section of the Bill which will make it clear that what she has in mind, in terms of policy, is precisely what she has spelled out to us today. If that is done, then all sides of the House will be satisfied.
The Minister of State seemed to raise some suspicions about public order operating on its own, some of which may be well founded. She gave an example of a meat processing plant in the west which operated according to Muslim law and, if pressure was applied, the ultimate owners and operators of this plant might be offended by the admission to this country as a refugee of a person opposed to Islamic fundamentalism, and, if jobs could be threatened, there might be some sort of public disorder in that location.
I would say that public order already exists in the Bill as an option — there is no question of dropping it. That situation will continue to exist because we have "public order" and "public policy". It is no defence against our argument to say there could be a situation where public order would be threatened as that is already covered by the existence of the phrase "public order" in the legislation.
While I was outside trying to take a telephone call I believe I heard the Minister of State also raise a difficulty about the legal validity of the term "public order". I understood her to say that the phrase in English has no legal status. Perhaps she would confirm this. I would be surprised if that was the case. Perhaps I am wrong, but I understand that the Criminal Justice (Public Order) Act is in existence. If so, there must be a legally valid concept of the term "public order".
My final point is a nasty, narrow chauvinistic one and is about the French. I speak not of the French language but of the French regime. If the thinking behind this "ordre public”, including public policy, was French, it would make me much more unsympathetic to it. One has only to look at the record of various French administrations over the past 20 to 30 years to see why. We also only have to look at the record in this area of asylum policy. For example, in terms of third country referral of asylum seekers, the UK Government, on appeal, found that approximately 60 per cent of cases should not be returned to France because of its unsatisfactory method of dealing with refugees.
We could be here for the afternoon because we are still on section 1 and are not making much progress. Our options are limited. We can vote against the section, in which case, given the shape of things, it could be defeated. Alternatively, the Minister of State could give an undertaking to introduce an amendment on Report Stage which will clarify the issue. This is the sensible suggestion at this stage.
It is for the sake of clarity that we require to know the meaning of the term "public policy". I am sure the Minister of State's explanations of the translations are correct. However, even from my interpretation of the debate I have heard in America, the policy was superseding human rights considerations. To avoid confusion about this excellent legislation the inclusion of a definition of the term "public policy" would be most useful.
I support this point. This matter can be easily resolved. We do not have to continue the argument about the definitions of terms such as "public order" or "public policy" or whether one is different from the other. It is simply a question of including such definitions in the Bill which remove all the confusion. Let us know what is meant by "public order" and "public policy", to the degree that it does not give discretion to a Minister at a future date to move the goal posts.
I have listened carefully to the debate. The definition of "public policy" as opposed to "public order" is the more appropriate definition. This is generally accepted on both sides of the House. For example, if one was to deal with a former terrorist dictator looking for refugee status in Ireland, it would not, on our understanding of law and order, be against public order per se for him to do so, but it would be against public policy. On this basis I would favour the definition of the term “public policy” as opposed to “public order”.
However, if one attempts to define the term "public policy" one will only run into more difficulties. What was public policy in Victorian times would not be public policy nowadays. It is a changing concept. It represents the common good, which depends on changing circumstances. How could any Government define this in fixed form? It is similar to attempting to define the term "the common good". What is it? Should we attempt a definition?
I understand the Minister of State's position on limiting the interpretation of public policy. I have also listened carefully to the genuine concerns of the other side. The Minister of State examined this aspect very carefully when the Bill was going through the other House. It may be in the interests of all if she examined it again in view of the extreme and genuine concern expressed on the other side of the House. However, I do not want her to make a promise to change it if she is convinced, even at this stage, that it cannot be done. The Minister of State is genuine in believing she is doing the right thing in not limiting the definition of the term "public policy".
This is the point. The Minister of State says this is a confusing concept. She advises that the term "public policy" is better and is the term she accepts. There is no argument about that. Having explained her reasoning, the Minister of State must now tell us what the term means. The point has been made that one cannot have a definition that is unchanging. That is the case in respect of many definitions. Any definition that is not part of science will probably be subject to change in some respect.
In the past hour I have consulted with legal people and with legal dictionaries. I have come up with a definition of the term "public policy" which the Minister of State should consider and which I will move by way of amendment on Report Stage. In the meantime I would prefer if the Minister of State were to make a proposal. I would define public policy to mean: "The principle in law that a person will not be permitted to do that which has a tendency to be injurious to the public or against the public good". This is a clear interpretation, which allows for the kind of change discussed by the Minister of State. The public good is at all times defined democratically by the Government of the day.
It is dangerous that the Government of the day interprets what public policy under our public order or public good is. There are broader definitions under common law. In practice I agree that in many cases — for example, in education — it is the Government of the day which, having an electoral mandate, expresses what the policy in public education ought to be. However, to narrow the definition of the term "public good" in a Bill to being a definition of the Government of the day is from a profoundly liberal point of view——
I did not say that. When I referred to the term "public good" the Minister of State advised it may be defined by common law. That is acceptable and I was wrong in what I said about Government. This was not included in my definition where I finished with the words "...public good". I am happier with the Minister of State's definition of the term "public good" than with my own in that it is a term that should be defined by common law.
The Senator mentioned Government.
I will read my definition again. I was not speaking about who was defining the terms. My definition states that the term "public policy" is: "The principle in law that a person will not be permitted to do that which has a tendency to be injurious to the public or against the public good". Has the Minister of State a problem with this?
When first referring to this, the Senator followed on. He may now have shortened the sentence. I am trying to be helpful. I have taken into account what Senator Neville has said and would be broadly happy to accept his suggestion. There is a Pandora's box to be opened here. I could ask for a definition of the term "public good". In the continuation of the Senator's sentence, which he has now excised, he mentioned the Government of the day. I would not be in favour of the term being defined simply by the policy of the Government of the day, much as, in some cases, it might suit me as a Minister at present.
I did not shorten my definition. Somebody is tied up in knots here. If I made a mistake with regard to the Government's interpretation of the term, I take it back. For the third time I read into the record what my definition means. It states: "The principle in law that a person will not be permitted to do that which has a tendency to be injurious to the public or against the public good". Does the Minister of State have a difficulty with that?
On the basis of what Senator Neville has said, does the Minister of State intend to respond favourably to that proposal——
——and clarify what it is?
The Minister of State has examined this matter carefully and we can only ask her to re-examine it. It is for the House to respond to what she may propose and to make the final decision. We cannot ask the Minister to come forward with something at this stage, but just to fully re-examine the matter.
A little confusion has entered the matter because Senator O'Toole forgot to close his inverted commas in the quotation and gave his own elaboration. His definition is good. As I understood the point, it was not a question for the Government of the day but a matter of a legal definition which was not subject to interpretation by the Government. I believe "public good" is an existing legal concept to which reference is made in the Constitution.
I think it is.
I will have to take advice on that.
I believe it is, because I recall a case in which there was a question of the balance between a certain concept and the "public good", but we can return to that matter. I have been in contact indirectly with the Regius Professor of Law in Trinity College and it appears that debates on the Hague Convention over the years in private international law indicate that the continental understanding of "public policy" has a narrower compass than the phrase in English law. "Ordre public” is usually translated as “public policy” under international law, but it is questionable whether this continental “public policy” has the same wide political ambit as we know it. Therefore, according to the Regius Professor of Law in Trinity College, there is an unknown quantity here and that is why we are so concerned.
There is no precedent in Irish law where "ordre public” was translated as “public order”— the Minister of State has won on that point. Professor Peter Nye, an Australian author, used “ordre public” on its own. Again, there is confusion created by the phrase “ordre public” and in eminent legal minds there is uncertainty as to what is encompassed precisely by this formulation. Professor Nye's book on constitutional law did not translate or explain the phrase so perhaps he just assumed a literal translation. According to Professor Binchy, it is not clear exactly what is meant by “public policy” but “ordre public” is translated legally as “public policy”.
There is a considerable degree of confusion. I admit that this discussion has left me throughly confused. I hope that by accepting Senator O'Toole's definition we could obtain a degree of clarity.
Senator Neville proposed that the Minister of State should re-examine the matter and I understand her to have said she would do so. That may only delay the matter until Report Stage but it gives us an opportunity to move on.
We cannot resolve the matter today.
We are not professors of law.
Senator Norris has confused me.
From Fianna Fáil's point of view, we want the concept defined in the definitions section. The Minister of State said she will re-examine the situation but we will not be happy unless there is a comprehensive definition in the Bill. She has not promised to give new expression to a definition in the Bill. However, if on Report Stage there is not such a new definition we will propose one.
We will agree section 1 on the understanding the Minister of State will come back to the matter on Report Stage.
Amendments Nos. 1 and 6 are related and may be discussed together.
I move amendment No. 1:
In page 5, between lines 4 and 5, to insert a new subsection as follows:
"(2) Without prejudice to the generality of subsection (1) (a) 'well-founded fear of being persecuted' may refer to a well-founded fear of being persecuted by non-State agents, where the State is unable, or unwilling, to provide protection against persecution of that person by such agents.”.
This amendment reflects the way the interpretation and usage of the Geneva Convention is developing in jurisprudence and practice. It reflects the reality of modern life in many countries. The intention of the amendment is to include persecution by non-State agents where the State is unable or unwilling to provide protection against persecution of a person by such agents.
The Minister of State cannot deny that persecution by non-State agents exists. I will restrain myself from giving concrete examples of such persecution because the people against whom I might make such allegations are not here to defend themselves. It is not difficult to imagine situations where a particular person is persecuted by a large tribe within a country or by a particular religious group. One such example could be if a Muslim community threatened to kill a famous author for a book he had written and a state stood idly by while such persecution was taking place and the author had to flee. In this case a positive and defence oriented stance has been taken by the state on that person's rights and the state authorities have provided protection. However, it is not difficult to imagine a situation where a state would leave such a person to the wolves.
There have been recent examples in central Africa, of which I sure the Minister of State is aware in detail, where the State, or what appeared for the State, stood by while one tribe sought to massacre entire tribes. We must ask ourselves if we are to deny the protection of the Geneva Convention to such persons. The origins of the Geneva Convention were in the large number of people who were made refugees after the Second World War. In pre-war Germany people were persecuted by the Nazi Party before that party came to power and the State did nothing to protect them. That was before the Geneva Convention. However, it does not take a huge stretch of the imagination to think of cases where the State could turn a blind eye to persecution of an individual or group of individuals.
The Minister of State has no doubt been advised about recent discussion papers and reports at UN and European level on development of refugee law in this area. "Non-State agents" is a broad phrase and could include anybody. We take it as a fundamental principle that it is the absolute obligation of the State to protect its citizens from persecution. If the State is failing in that obligation and people leave the State following persecution, it would be wrong not to provide such persons with refugee status and asylum. I am avoiding the temptation of using individual examples.
The Minister of State has extended the definition of membership of a social group. She is to be congratulated for stretching the boundaries of applicability of the Geneva Convention; they have been stretched to apply to membership of trade unions, sexual orientation and so forth. Why not similarly stretch applicability to non-State agents? I earnestly press this amendment and ask the Minister of State to accept it.
I am happy to support this amendment. It is one of a number of amendments that were circulated widely and accepted on this side of the House. Senator Mulcahy did not wish to put any instances on the record, although in view of his remarks one could draw conclusions about the type of situation he envisaged. The fatwa on Salman Rushdie is one such instance. Although it was Government inspired, it was done in such a way that the Government in Iran was able, at certain stages when it was in its interest to do so, to wash its hands of responsibility for it.
I will give the reason why I feel strongly about this matter. Let us look at two examples, one of which took place in this country. It has been made clear that the Government of this State is incapable of protecting its citizens against the operations of non-governmental agencies. There was such a case in recent years when a convicted INLA member who turned State's evidence had to be protected after serving the prison sentence imposed on him and, with Government assistance, was admitted to Canada as an asylum seeker following advice from the Irish Government that it was incapable of protecting that citizen from the murderous intentions of disaffected fellow members of the INLA. There already is a situation on our own doorstep in which we acknowledge that we cannot protect our own citizens and it is better to get them out of the country. That is a cogent argument for including non-governmental agencies.
The second example is widely known. Many regimes in Latin America suffer from the activities of death squads. They are endemic in that area. The death squads murder street children and political opponents. I have just read a book entitled No Human Being is Disposable. In some of these countries categories of people such as the unemployed, prostitues and gays are referred to in common parlance as the “disposables”. They are disposed of. They may be disposed of with the connivance of Government but it is not direct Government action. It is the action of the death squads.
We ought to make it clear in the legislation that we would accept as a refugee somebody who was the victim or target not only of a malign Government intention but of an agency such as a death squad. We have accepted this principle ourselves and we expect other jurisdictions to receive people from our country whom we cannot protect on the basis that they are threatened by bodies other than the State within this jurisdiction. This is a well founded amendment and I hope the Minister of State will consider it.
Some common sense must be applied in the context of this amendment. Everything Senator Norris said was valid, but it is not affected in any way by the proposed amendment. Let us not get carried away about this. The section defines a refugee to mean a person who has a well founded fear of being persecuted. It does not state by whom. The proposers of the amendment are assuming that the section means State persecution, but that is not stated and we should not assume it. By not defining it, it is open to meaning persecution from whatever source. It is well left as it is.
The amendment might be difficult to implement. The two examples given by Senator Norris are excellent in that one can pinpoint the organisations causing the terror. However, where does that stop? Does it apply to street gangs or units of British fascist movements? My only objection to the amendment is that too much discretionary power is required of the Minister.
I appreciate the sentiments behind the amendments and I support the principle that inspired them. However, I am wary of over-elaborating the definition in the 1951 Convention for the good reason put forward by Senator Gallagher. I am of the view that the existing wording of section 2, which follows closely the text of the convention, includes the category of persons described in the Senators amendment. I will go further by saying that it is beyond doubt that the present wording encompasses fear of persecution by non-State agents. As Senator Gallagher said, this is because the convention definition simply speaks of persecution without differentiating between possible different origins of the persecution in question.
I am concerned that we do not stray too far from the text of the convention. It could be inferred by a court at a later date that some other aspect could not be read in a broad way because it has not been expanded on in the statutes. The UNHCR shares this concern and is anxious that the legislation implementing the convention should stick as closely as possible to the convention text so as to avoid this possibility. I took the action in relation to broadening the definition of social group because I believed it was essential. Not everybody internationally, and possibly in the UNHCR, agrees with me. We are under advisement to stick to the convention. The same thinking applies to the proposed amendment to section 5. It is an over-elaboration of the position which already prevails.
As regards the examples put forward, I would like to say something which might put Senators minds at rest. Over the past couple of weeks I decided in favour of the applicants in three cases seeking asylum. These cases involved non-State persecution — two were from Africa and one from a Muslim country. The circumstances outlined by the Senators applied to some of those cases, that is, the people were suffering persecution. It did not matter to me making my decision as Minister whether it was non-State persecution or that the State in a couple of examples was unable to protect the individual. In one case where someone was of a minority religion in a fundamentalist state, the statutes of the state in theory offered protection but in practice clearly did not. That is already dealt with on a routine basis, but it is not very usual. As it happens, there have been three cases over the past month involving this point and I would like to reassure the Senators in this regard.
That was a splendid, comprehensive and convincing reply. I am happy to withdraw the amendment because the Minister has dealt with it very effectively, as has my colleague, Senator Gallagher. I was going to say I would be completely convinced if she was able to give some precedent, which she has done.
I am heartened to know that the way this Minister interprets the Geneva Convention includes persecution by non-State agents. International jurisprudence on this point goes against what she has said in that non-State agent persecution — the Minister will correct me if I am wrong — was not accepted internationally as being within the ambit of the Geneva Convention. That is why there has been considerable debate on this topic in the past few years.
If the Minister accepts there is no need for the amendment because it is already covered by the Geneva Convention, why oppose it? I accept her reticence to expand the exact language, but it is only a matter of clarification. It does not alter, in the primary sense, the definition of persecution contained in section 2. Will she accept that a more conservative view could be taken by other Ministers making a decision, perhaps more in line with the conservative jurisprudence I outlined.
As regards the points raised by Senator Mulcahy, I understand non-state agency persecution is accepted under the Geneva Convention. It is dangerous to say that if the Minister has no difficulty with the proposed amendment, why not accept it. That would, in effect, limit or define from where the persecution is allowed to come in terms of refugee status. By including something, we are, by definition, excluding a source of persecution. In terms of legal interpretation, it is something which Senator Mulcahy, as a barrister, would be well aware of. It is dangerous to tamper with what is left undefined in terms of legal interpretation. The Bill allows us to protect those being persecuted from whatever source.
I support what Senator Gallagher said. Often amendments can be more limiting if included. I hope this amendment is withdrawn.
Section 2 states: "owing to a well founded fear of being persecuted". There is no need for anything to be added. This is as strong as what Senator Mulcahy and Senator Norris would wish and anything else might weaken it.
Amendments Nos. 23, 30 and 36 are related to amendment No. 2 and may be taken together. Is that agreed? Agreed.
I move amendment No. 2:
In page 6, subsection (2), line 8, to delete "policy" and substitute "order".
Our earlier discussion on this topic refers to this amendment. We will consider this matter further before Report Stage. In line the Minister's undertaking, I will withdraw the amendment.
I understood from the earlier debate that it was accepted that public policy was a better definition than public order in the context of this Bill.
I understand that what I undertook to do for Senators was to examine the definition of public policy.
I believe from the point of view of Standing Orders that, unless this issue is raised in respect of each of these amendments, we are not allowed to raise it again on Report Stage. If these amendments are being taken together, I want to formally raise the issue of the definition of public policy wherever it appears.
You moved the amendment and it has been debated. Any amendment arising from this debate will, no doubt, be taken.
I move amendment No. 3:
In page 6, between lines 14 and 15, to insert a new subsection as follows:
"(5) A refugee in relation to whom a declaration is in force, may appeal to the High Court against the refusal of the Minister under subsection (2) to issue a travel document and that the Court may, as it thinks proper, on the hearing of the appeal, confirm the decision of the Minister or direct the Minister to issue a travel document."
This amendment is important and sets out that the Minister is not to be the final arbiter of whether somebody should or should not be issued with a travel document. Section 4, as I understand it, applies to people who have received a declaration as to their status. The Minister, in denying a travel document to such persons, would rely on national security or ordre public— I will leave the latter in French until it has been finally clarified. Why should the Minister be the final arbiter of whether a person is in breach of national security or ordre public and, accordingly, should not be granted a travel document? The High Court has inherent jurisdiction to monitor each and every activity of anybody in the public domain by way of certiorari, mandamus and judicial review. For the purposes of clarity, there is no reason somebody should not have a normal and direct right of appeal to review a decision of the Minister in this regard.
We had a long debate on the concept of ordre public. One of the arguments the Minister advanced was that the concept of “public policy” could be abused by the Government of the day by it taking a narrow interpretation of public policy as meaning essentially Government policy. If the Minister is consistent about this, she should give a right of review to the High Court to make sure no Ministers ever abuse the powers granted to them under national security interests or ordre public. I hope that in the spirit of generosity the Minister showed this morning, she will accept this amendment.
I support the amendment and I look forward with interest to hearing the Minister's views. It seems that, in terms of natural justice, applicants for asylum should have the same right of recourse to judicial review or a High Court appeal as anybody else. They are not criminals but persons whose status in terms of asylum is to be determined. I do not see why they should not be permitted the same rights as other human beings under natural law.
I wish to comment on how the amendment affects this section. It gives the Minister wide powers of refusal without challenge. A briefing document which was made available to members of the Dáil Select Committee on Legislation and Security states that: "This subsection allows the Minister on the grounds of national security or public policy ("ordre public”) to refuse to issue a travel document to a refugee”. Under article 28 of the convention, the only grounds for such refusal are compelling reasons of national security or public order. This is not the way it is phrased in the Bill. I may table an amendment on Report Stage to insert a phrase of that nature.
Subsection (2) refers to "in the interests of national security or public order" whereas the convention refers to "compelling reasons". The Minister has much wider powers under the Bill than under the convention because the reasons for refusing to issue a travel document need not necessarily be compelling. They may be the reasons of the day and no review may take place. Why should compelling reasons for such a refusal not be required? Even though such reasons are not to be required, we are not giving leave to appeal. I imagine the framers of the convention would be happy with the idea that review was possible. We are providing for a situation where reasons may not be compelling and yet will not be subject to legal review, which is the natural entitlement of any citizen.
Amnesty International stated that the words "public policy" have an entirely different meaning in law from public order and are not an accurate translation of ordre public. The inclusion of the expression “public policy” throughout the Bill is of grave concern and is used in all cases to permit the State to opt out of its obligations under the convention. The clear implication of subsection (2) is that public policy is the direct translation of “ordre public”. This adds strength to the argument that the Minister would be most helpful if she could give — I am sure she will be able to do so — a better definition of the troublesome phrase “ordre public”.
By order of the House we will conclude the debate at 1 p.m. If the Minister wishes to speak, I will allow her to do so.
The issue by the Minister for Justice of a travel document to an asylum seeker is in many respects procedurally similar to the issue by the Minister for Foreign Affairs of a passport. It can be argued that the issue of a passport is of far greater significance because it is not merely a convenience for the traveller but a declaration of the status of the holder as an Irish citizen. If the Minister for Foreign Affairs refuses an application for a passport, the applicant may have recourse to the inherent jurisdiction of the courts to review ministerial decisions; there is no special statutory process provided.
I can reassure Senator Norris that in this case the refusal of a travel document is subject to exactly the same review by the courts as in the case of an Irish applicant who applies for a passport but is refused. This matter involves people who have been granted asylum status not being issued with travel documents. I remind the Senator that a Minister can only issue a refusal after due procedure has been followed and proper consideration has been given to the case. A Minister cannot act capriciously or malevolently in making such a decision which is reviewable by the courts.
Therefore, the amendment is unnecessary.
Yes, and I oppose it for that reason.
That concludes the debate at this juncture.
I am not finished.
You are now.