Seanad Éireann debate -
Wednesday, 5 Jun 1996

Vol. 147 No. 12

Refugee Bill, 1995: Committee Stage (Resumed).

SECTION 22.

Mr. Mulcahy

I move amendment a39a:

In page 24, subsection (2) line 4, to delete "may" and substitute "shall".

The Minister has tabled a series of amendments which seeks to deal with a situation which was respectfully highlighted by those who put their names to amendments Nos. 40 and 41. The Minister seeks to introduce a new appeals procedure. I do not think her proposal was discussed by the Dáil. The first time it was published or made known to us in any way was at 3 p.m. or 3.30 p.m. today. I will not raise the question as to why we have received these amendments only at this stage. This matter was discussed a week ago and the Minister would have been fully aware——

An Cathaoirleach

Could you please clarify what amendment you are discussing?

Mr. Mulcahy

I thought we were speaking on all the amendments.

An Cathaoirleach

No, we are dealing with amendment No. a39a. I apologise if I confused you earlier.

Mr. Mulcahy

I cannot speak on this amendment in strict isolation. I and four other Senators put down an amendment. The Minister subsequently tabled a series of amendments. Because I thought there was a flaw in her amendments, I was forced to table amendment No. a39a.

Dr. Henry

On a point of information, I am the first of the other Senators mentioned by Senator Mulcahy and I have no objection to the way the Minister put forward her amendments. Senator Norris is not here to say if he has any objections.

Mr. Mulcahy

I do not recall having spoken for Senator Henry. She can make her own contribution.

Dr. Henry

Senator Mulcahy referred to an amendment in the name of the other four Senators. I am one of them.

An Cathaoirleach

Senator Mulcahy, you must speak on the amendment you submitted.

Mr. Mulcahy

This is exactly what I am doing. A serious debate on my amendment can take place only in the context of the amendments the Minister published at approximately 3 p.m. and when one is fully cognisant of the fact that she is responding to it. Maybe she is not responding to amendments tabled by me and others. Other Senators can speak for themselves. I am sure Senator Henry will give a lucid account of why she tabled an amendment similar to mine.

An Cathaoirleach

I am sure Senator Henry will speak on her own amendment when we reach it; I ask you to speak on yours.

Mr. Mulcahy

The Minister has proposed an entirely new appeal procedure in the context of section 22. This section informs the country, probably for the first time, of the existence of the Dublin Convention. As I understand it, under this section the Minister will have the power, pursuant to the provisions of the convention, to send people who apply for asylum in Ireland back to third countries which may or may not be safe. It will be for the Minister to explain that, but I am only speaking in the context of the Minister's own lately published amendment to subsection (2) of section 22 which states:

Without prejudice to the generality of subsection (1), an order under this section may—

The substance of my amendment to sub-section (2) of section 22 is to substitute the word "may" with the word "shall". This is an important amendment because later on in section 22 the Minister proposes a totally new appeal procedure for somebody who may or may not be a subject of the Dublin Convention. You will have to bear with me, a Chathaoirligh, if these things are a little bit complex. There should, not "may", be a right of appeal by somebody who will be subject to the Dublin Convention.

Mr. Neville

On a point of order, I am a bit confused. The Senator has moved a clear amendment. We are discussing the Minister's amendment at the same time and the Dublin Convention.

Mr. Mulcahy

No, we are not.

An Cathaoirleach

No, we are not. We are discussing Senator Mulcahy's amendment No. a39a.

Mr. Mulcahy

I am putting it up to the Minister loud and clear and I want to see her response to this. Will the Minister leave it totally up to herself as to whether somebody has an appeal from a decision of the Minister in relation to the Dublin Convention? As regards the Dublin Convention, the Minister, who has perhaps a greater experience in these matters than I have, will know the UN itself declared that certain countries which are members of the convention do not meet the necessary standards of procedure for asylum applicants. If this Bill is passed in its present form there is a danger that people will be sent back to their country of persecution because certain member states which signed up to the Dublin Convention do not apply the procedural standards for asylum seekers required by the UN.

We will not gloss over this debate. I want it to appear on the record of the House if the Minister doggedly goes against the right of people to an appeal procedure here under the Dublin Convention. I do not blame the Minister for it, but the Dublin Convention seems to have come from nowhere.

Minister of State at the Department of Justice (Ms Burton)

No, it came from your colleague, Deputy Burke.

Mr. Mulcahy

That is what I am saying. I am not blaming the Minister for this. To the best of my knowledge, the Dublin Convention, other than in this Bill, has never been publicly debated in the Dáil or elsewhere, yet it is a matter of immense importance.

Ms Burton

It was introduced by Fianna Fáil.

Mr. Mulcahy

I am not disagreeing with that, but we are trying to improve the law here. It is a matter of the greatest concern that the Dublin Convention has nothing like the status of the Geneva Convention. The latter convention was a historic treaty brought about after the Second World War to deal with the persecution of people. The Dublin Convention was signed by Governments, almost in secrecy, and is now being thrust upon us in the Bill. The purpose of my amendment is that by replacing the word "may" with the word "shall" the applicant would have a right of appeal against the Minister's decision to transfer that person to what could be an unsafe country. I will elaborate more on that point.

Ms Burton

I have to say that, rather like the Senator's rhetoric last week, it is extremely difficult to deal with the logic of his various arguments, which flow in many different directions. If the Dublin Convention was carried out in great secrecy, it was done by the then Fianna Fáil Government and the then Fianna Fáil Minister for Justice at the time of Ireland's last Presidency of the European Union.

I have heard many faults laid at the feet of Fianna Fáil but I did not realise that they carried on the last EU Presidency in total secrecy. I actually remember rather a lot of publicity about almost all of it. In fact, the degree of publicity which the actions of various Fianna Fáil Ministers achieved was a remarkable success. If the Senator has a complaint about secrecy he should take it up with his own party colleagues and in particular with Deputy Burke. The remedy lies in his hands. I wish him well in his reforming zeal for Fianna Fáil in the future and in his revisionist picture of the Fianna Fáil Presidency of the European Union the last time out.

I thought we were speaking to specific amendments. When the Seanad debated the Bill on Second Stage, many Senators made points about the Dublin Convention, which is a European Union document. It is subject to the Geneva Convention, if the Senator cares to read the Dublin Convention appendix at the back of the Bill. That is stated in the convention on two separate occasions, so perhaps the Senator would care to read it. That is possibly why his colleagues, when formerly in Government, felt free to act as they did, even if that was in some secrecy. It states that very clearly.

I felt that what Senators had to say on Second Stage was of fairly substantial significance. One of the points made by a number of Senators — I am not sure if Senator Mulcahy was one of them and I do not think the amendments were in his name — which was also mentioned by the NGOs and the UNHCR, was the lack of an appeals procedure in relation to the Dublin Convention. The purpose of my amendment, as I tediously explained to the Senator on previous occasions, having had the advice of the Attorney General's Office and the parliamentary draftsperson, is to give effect to the points that Senators eloquently made on the issue. That is what the amendments are about. I would appreciate debating the function, purpose and reason why those amendments are in the form they are in, when we come to them.

I find the arguments that the Senator is advancing next to impossible to understand. Having sought to accommodate Senator Mulcahy's need for an extensive and intensive, but bewildering, series of points on any and all aspects of this Bill, I am disappointed that we are again faced with a farrago of incomprehensible comments by the same Senator. I have no doubt that the Senator's intentions are good, but I fail to see what they are doing in terms of improving the Bill. The Senator's amendment has nothing to offer whereas my amendment seeks to meet the points that other Senators, as well as NGOs and the UNHCR, made.

I hope we will not face, as happened on earlier sections of the Bill, an extended discussion which appears to be about nothing. I appeal to the Senator's good sense to read my amendment, the Dublin Convention and the references to the Geneva Convention therein. He will then realise that his earlier comments are nonsensical.

Mr. O'Toole

I missed the Minister's response to Senator Mulcahy's proposal to substitute the word "shall" with "may". Before I speak on the amendment, I would like to hear that response.

Ms Burton

I do not wish to speak on the substantive issue, the appeal process, until we come to it because otherwise the debate will be all over the place. The effect of amendment No. 39a would be to oblige the Minister to include every item listed in the section 22(2)(a) to (I). This would place too rigid a fetter on the Minister in drafting the regulations. I am satisfied that "may" is the correct word to use in connection with an explanatory list of this nature. It is essentially an enabling provision to move forward in relation to the Dublin Convention. The substantive amendment addressing the issues of concern to Senators on the appeal procedure is dealt with in a later amendment.

Mr. O'Toole

I thank the Minister for her explanation. I see value in Senator Mulcahy's proposal. However, I accept the practicality of the Minister's point and I agree it would be unnecessarily restrictive and demanding. However, both points would be covered by the inclusion of two words, which are great friends of parliamentary draftsmen, "where practicable". There is nothing wrong with considering the inclusion of these words. The Minister was correct in saying that having to use them as parameters is unnecessary and needlessly restrictive, but they are of some value.

I am unhappy with the amendment — I appreciate Senator Mulcahy had to draft it very quickly — in that it might be exclusive. It is excessively demanding and unnecessary that this should be required in every regulation. I do not know enough about it to know the percentage of cases in which it might be necessary. I recognise the value of Senator Mulcahy's proposal in that these issues should be considered in all cases. The Minister said it is not always practicable to do so. Therefore, the easy way out is to give her discretion and to consider the inclusion of the words "where practicable" on Report Stage. Those words have the same impact as the word "may", although the issues referred to would have to be considered. We should look at it in context. Senator Mulcahy was right to say it is impossible to discuss this without considering the entire section. I ask the Minister to consider this point and to come back to it on Report Stage.

Professor Lee

There is great merit in Senator O'Toole's proposal and I urge the Minister to take that line.

Mr. Mulcahy

There is a lot of sense in what my colleagues said. As I said earlier, I only had since this afternoon to draft amendments to the Minister's, which were only published then. She said it was difficult, if not impossible, to discuss this amendment out of context with her amendments.

Ms Burton

That is not what I said.

Mr. Mulcahy

I thought the Minister said something like that. Leaving the word "may" will mean that the Minister retains discretion as to whether somebody may have an appeal under the Dublin Convention which, in itself, goes against one of the finest principles of natural justice, that is, that nobody should be a judge in their own cause. If the word "may" is retained and the Minister decides an applicant is not entitled to an appeal, he or she has made the initial decision that this person will be transported to a third country under the Dublin Convention and that they are not entitled to an appeal. The word "may" is offensive because it allows the Minister to make two decisions. Having said that, I am all for the speedy progress of this Bill. I would like to hear the Minister's response to the Independent Senators' contributions.

Ms Burton

I am happy to report back on Report Stage on the terms outlined by Senator O'Toole and Senator Lee. They will appreciate that I receive guidance on legal matters from the parliamentary draftspeople. If Senator Mulcahy reads the Dublin Convention carefully — I understand his concern on this matter — he will see that it is a statute which was entered into by his party when we last held the Presidency of the European Union. The Senator should not shake his head because this is a historical fact and a distinguished historian is present in the House. It was signed by his colleague, Deputy Ray Burke, when Ireland last held the Presidency of the European Union. We will come to the substantive matter later. I am happy to accept the comments made by Senator O'Toole and Senator Lee. Perhaps we can debate the substantive issue when discussing the Dublin Convention and the appeal which I will introduce to meet the concerns expressed by a number of Senators and NGO's.

Mr. Mulcahy

Although I made it clear I was not making a political point about the secrecy of the Dublin Convention, the Minister seems to be harping on about that. She said the Dublin Convention was subordinate to the Geneva Convention and she asked me to read the Dublin Convention. I ask her to show me where that convention states that it is subordinate to the Geneva Convention. I will eat my words if I am proved wrong.

Ms Burton

Article 2 of the Dublin Convention states: "The Member States reaffirm their obligations under the Geneva Convention, as amended by the New York Protocol, with no geographic restriction on the scope of these instruments, and their commitment to cooperating with the services of the United Nations High Commissioner for Refugees in applying these instruments."

The Fourth Schedule states: "DETERMINED, in keeping with their common humanitarian tradition, to guarantee adequate protection to refugees in accordance with the terms of the Geneva Convention of 28 July 1951, as amended by the New York Protocol of 31 January 1967 relating to the Status of Refugees, hereinafter referred to as the "Geneva Convention" and the "New York Protocol" respectively;". I assume that is why Senator Mulcahy's Fianna Fáil colleagues felt empowered to be signatories during the last Irish Presidency of the European Union when Fianna Fáil was in Government.

Mr. Mulcahy

Where does it say it is subordinate? The Minister has put a proposition on the record of the House. She said the Dublin Convention is subordinate to the Geneva Convention. I challenged her to show me an authority for that proposition but she has not shown me anything to suggest it is subordinate. The point of my amendment is that the status of the Dublin Convention is unclear. If the Minister would accede to my amendment, it would make it clear that the Geneva Convention was superior and antecedent to the Dublin Convention.

Ms Burton

The words have their meaning as expressed in the convention. I referred to the two sections of the convention which referred to the Geneva Convention. I cannot deal with the Senator's linguistic difficulties. I am not a lawyer; this is not the Supreme Court. I am a Minister.

Mr. Mulcahy

More insults.

Ms Burton

In all of the Senator's questions and comments, there are times when he oversteps the mark. I have gone out of my way not just to facilitate but to indulge him.

Mr. Mulcahy

I am impressed.

Ms Burton

A line must be drawn. I have listened to the Senator's arguments on the sections because I take them seriously. I would expect him to acknowledge the seriousness of my replies——

Mr. Mulcahy

I do.

Ms Burton

——the history of the particular convention concerned and his party's relationship to it.

Amendment put and declared lost.

An Cathaoirleach

Amendments Nos. 39a, 39e and 42 are related and all may be discussed together. Amendments to amendments Nos. 39a and 39e are also in this group and may also be discussed.

Government amendment No. 39a

In page 24, lines 13 and 14, to delete paragraph (b) and substitute the following:

"(b) provide for an appeal against a determination to transfer an application for asylum to a convention country and the procedure in relation to such an appeal".

Ms Burton

Broadly speaking, the purpose of the Dublin Convention is to lay down criteria for determining which member state is responsible for examining an asylum application. It is important to understand that this convention is essentially a set of procedural or technical rules, as opposed to being a development in the area of asylum philosophy or thinking. It has a limited objective and it is not intended, for example — I hate to cross swords with Senator Mulcahy — to expand on the Geneva Convention.

I listened with great care to the Senator's contributions on the Dublin Convention. While I am of the opinion that the Dublin Convention is basically a procedural tool, I agree that any decision made to send an asylum seeker to another state under the terms of the Dublin Convention would be open to review in our courts. We have hitherto regarded the specifying of a review mechanism as a matter of spelling it out in the implementing regulations rather than in the Bill, as Senator O'Toole referred to earlier.

However, in light of Senators' comments and taking account of these comments as articulated in amendment No. 42, and also bearing in mind submissions made to me by the UNHCR and other interested parties, I have sought further advice from the Attorney General on the matter. He advised me that there would be merit in including further provisions in section 22 which would specifically introduce a review mechanism in the Bill as opposed to the regulations. I have accepted his advice and amendments Nos. 39a and 39e provide a mechanism for establishing an appeals process. It is not a new appeals process overall; it is in the context of the Dublin Convention and for the appointment of a person to consider such appeals. By introducing this amendment, I hope that I have met the concerns expressed and which are the subject of amendment No. 42.

The amendment spells out a specific enabling provision allowing for the inclusion in the order of procedures for an appeal against a decision to return a person to another convention country. As I have already stated, the Dublin Convention is essentially a set of procedural or technical rules as opposed to being a development in the area of asylum philosophy or thinking. It is, accordingly, proper that the statutory instrument should spell out a procedure to deal with the situation where an applicant, whose application is to be transferred under the Dublin Convention, can appeal against what he or she considers to be a misapplication of these rules based, for instance, on the incorrect interpretation of factual evidence.

Furthermore, the order should specify a time limit for the making and determination of an appeal. Such a limit will of necessity be of short duration due to the nature of the process. An open ended time limit would frustrate one of the intentions behind the convention and this Bill — timely consideration of all requests of asylum in the appropriate member states.

I want to reiterate two points for the benefit of Senators. First, subsection (4) provides that an application cannot be transferred unless the other convention country has agreed to accept responsibility for the examination of the application. Of course, the other Dublin Convention countries are our European Union partners. This is a very important safeguard. Second, Article 3.4 of the Dublin Convention provides that each state may decide to examine a claim for asylum even if that responsibility lies within another state under the terms of the convention. In other words, we are not obliged to implement the Dublin Convention; it is a matter of choice. A state does not have to implement it. It could decide to deal with the application of an asylum seeker, who had earlier been in another European Union country, in this country rather than refer it back to the first country.

The order to be made under section 22 (2) (a) of this Bill will provide for this. In making a decision to return an individual to another convention country, the official appointed by the Minister by virtue of the new subsection 4 (a), will take all issues into account before issuing a decision. These two points should go a long way to meet the concerns expressed by Senators.

So far as the person to be appointed to hear the appeal is concerned, amendment No. 39e provides, inter alia, that such a person will have at least seven years experience as a practising lawyer. While it is probable that the person to be appointed to hear appeals will be the Refugee Applications Commissioner, subsection (4) (c) is flexible enough to allow for another suitably qualified person to be appointed in the event that the commissioner is unable to deal expeditiously with an appeal due, for example, to being out of the country or being indisposed. In these circumstances, I ask the Senators to accept my proposed amendment.

The Senator's amendment to the Government amendment would have the effect of limiting the appeal procedure to the grounds specified in the Senator's wording. This is clearly unacceptable as it would preclude an appeal on, for example, the simple grounds that the Minister's appointed officer had misapplied the rules or had misinterpreted factual evidence. There-fore, I cannot accept the Senator's amendment to the Government amendment.

Mr. Mulcahy

I have no objection per se to any appeal procedure for somebody who will be subject to the Dublin Convention. While I respectfully disagree with the Minister in the words I proposed to add, I will not make a big deal of it. My amendment proposes to add the words “on the grounds that the applicant if transferred to a convention country, will not be afforded a proper opportunity to assert his or her rights under the Geneva Convention”. If the Minister entered into the spirit of my amendment, she would have accepted it and come back on Report Stage to add the words “or other”, “such other reason” or “other reason”.

We are talking about somebody who is afraid they will not be able to assert their rights under the Geneva Convention in another European country. When we come to amendment No. 40, I intend to give the Minister, if she is not already aware of them, a long list of cases where third countries, members of the Dublin Convention, are considered by the United Nations not to be safe or to be countries where the correct degree of appeal procedure, etc., under the Geneva Convention is not available.

My amendment to amendment No. 39e relates to an issue which the House discussed previously. It is preferable that the person who will hear the appeal is a practising solicitor or barrister of not less than seven years standing. As Senator O'Toole indicated on the last occasion, if a practising solicitor or barrister must be appointed, it excludes the possibility that somebody working in the Minister's Department who may have seven years previous experience could be appointed to hear appeals.

I do not know if the Minister's amendment is rushed. I do not know when it was finalised by the parliamentary draftsman; but if it was not rushed, Members should have had more time to table amendments to it. This is always the difficulty when amendments are published at the last minute. Perhaps the Minister will outline the position in that regard.

In general, I support and welcome the right to appeal. I have no problem with that, but I ask the Minister to consider my wording in relation to amendment No. 39a and to come back with an amendment on Report Stage. I also ask the Minister to consider the point made in the previous debate that a practising barrister or solicitor of not less than seven years standing should be appointed to hear appeals.

Mr. O'Toole

The House is dealing with an amendment to an amendment, something a well known organisation would not allow. How will the amendment be dealt with in technical terms if a vote is called? Which amendment will be put first, as the question cannot be "That the words proposed to be deleted stand"? On what basis will the vote be taken? Will there be two votes, one after the other?

Acting Chairman (Mr. Wall)

That is possible. The amendment to the amendment will be taken first. It will be dealt with and the House will then deal with amendment No. 39a.

Dr. Henry

I welcome the appeal procedure proposed in the amendment; it is essential to the Bill. An important point made by the Minister which is not mentioned in the amendments is that there will be a timeframe for the appeals. An appeal without a suspensive effect would be useless because it could be made and yet one would be transported out of the country within three hours.

Senator Mulcahy is right to point out that what some EU countries consider third countries are not considered as such by other members of the EU. For example, the United Kingdom still considers Nigeria a third safe country, but many other members of the EU have difficulty considering it safe. I will not go through the list of problems in other European countries but complaints have been made to the UNHCR about Austria, Greece, Italy, Belgium, France and the Netherlands. For example, the police at Schipol airport were described in a most unpleasant way regarding the way they treated foreigners who wished to lodge an application for asylum. However, I am glad these matters were dealt with in the various countries in which complaints were made.

An appeal without a suspensive effect would be pointless and I hope the Minister will ensure the suspension is not just for 12 hours or a similar length of time. It must be sufficient to enable a person to get their appeal together. The person must also have access to counsel. They need to be in a position to rebut the presumption that they are being sent to a safe third country because they may have much better knowledge of what is happening there. The Minister is aware of the fears in recent days of people who fled to Hong Kong following the Tiananmen Square massacre that when Hong Kong is no longer a British protectorate they could be deported to China. Many people in areas of turmoil have real fears.

The Dublin Convention will probably come into effect during Ireland's EU Presidency in the next six months. Ireland and the Netherlands are the only countries which have yet to ratify the convention and I hope it will come into effect. The legal advice I received is that it is superseded by the Geneva Convention. I am not a lawyer and I do not have Senator Mulcahy's legal training so I must abide by that advice. However, the Minister stated there will be a period in which a person may lodge an appeal, and this is most important.

One could quibble about the fact that the appeal will be heard by just one person; my amendment requested an appeals board. The proposal is for one person, but they can be hired and fired by the Minister and, therefore, they are under the Minister's control. In addition, there is no time limit on the appointment. However, the amendment is an important improvement to the Bill and I am grateful for it. I am also glad the Minister said there will be a timeframe for appeals. Perhaps the Minister could provide more detail on the timeframe because this aspect is most important to asylum seekers.

The way appeals are dealt with in different European countries is interesting. For example, a high rate of appeals are sustained in France but only a small percentage are sustained in other countries. When somebody is sent back to another Dublin Convention country we do not know what faces them and it is most important we are in a position to assess the place to which they are being sent. We will have a fair idea about their feelings regarding what they consider safe countries. I am sure the person appointed by the Minister will be well informed and take cognisance of all the facts.

I understand the point made by Senator Mulcahy that the person appointed should be a practising barrister or solicitor. However, that would preclude judges, who might be ideal people to appoint to such a position. Experience in judicial matters of more than seven years could be of great benefit to whoever is in charge of the appeals. I am most grateful to the Minister for introducing the amendment.

Mr. O'Toole

On the last occasion I was more than a little annoyed by the Minister's responses to some of our needs. I was most critical of the Minister and I was unable to participate for much of the time because I felt we were not making any progress. I had some sympathy for the frustration expressed by Senator Mulcahy and others. However, the Minister's amendment is a major move forward and I hope it is a water-shed in the debate. It shows remarkable progress and it is most welcome. As the Minister pointed out, it meets a point raised by many Members. This is the good news, but we must also examine what it means.

I have a clear view about the idea of an appeal and the principles of natural justice. Whether it is by way of judicial review or an appeal, people should have some device by which to check why something was done or how it was done. It is clear that an appeal governed by regulation or statute is the most attractive option. This relates to the previous discussion on an earlier amendment regarding "shall" and "may" when I referred to the possibility of a middle line which would include the words "where practicable". I am not reopening that debate but I wish to put the current discussion in context. Nobody is above accountability and the Government has set itself the target that it will be accountable and transparent in decision making. This matter is an example of where this comes into play. I argued from the Minister's point of view on the last occasion that it may be unfair and impractical for us to insist that all the bits and pieces in the section would be required by regulation. On the other hand, the words "where practicable" are always used by Governments to soften and give space to a Department; but leaving the word "may" on its own effectively leaves the right to an appeal at the whim of the Minister.

There should be a right to an appeal. If there is no right to an appeal, there should be a right to question why there was no appeal to fall back on. With the inclusion of the words "where practicable", it would be open to challenge by somebody who felt they were entitled to an appeal having taken everything into consideration and who did not have an appeal allowed to them. Therefore if the words were to remain as they stand now —"may"— a Minister would just say that having taken everything into consideration he decided there should be no appeal. There is very little that any judge could do with that if it did come to court. If on the other hand the words "where practicable" were included, a Minister would have to argue that having taken everything into consideration he or she came to the conclusion on the following basis and give the reasons. That is if somebody chooses to question or challenge the Minister's judgment in that case.

The only way that could be done is through judicial review, but nonetheless it would allow it to happen. This is a major step forward. It has to added to the baby step which we recommended earlier, which is the inclusion of the words "where practicable". That gives a more complete package.

I am not clear about the first amendment to the amendment. I argued on the last occasion on amendment No. 39e and I would concede this point. It was for a different kind of job and a more permanent job. I am seeking information here. We talked about the commissioner on the last occasion. Am I right in assuming that this is a different person?

Ms Burton

Not necessarily.

Mr. O'Toole

These are the kinds of things which we do need to know about. On a casual reading of it a specific decision would be taken on every occasion. I am not arguing against it being the commissioner. I do not know about it. I will have it give it consideration and read the Bill with that in mind.

The Minister made important points about somebody who will be working full-time on it. I am not sure if it is so important, if it is somebody who is asked simply to rule on a particular appeal case, that it should be somebody who is practising today. It would be utterly and completely unacceptable and against the principles of natural justice if the person appointed to do this job happened to be somebody, for instance, in the Minister's Department. I would like the Minister to clarify this. Any judge would throw that out, but the Minister has made the distinction in her own amendment that the officer appointed to determine matters in sub-section (2) (a) would be a different person to subsection (2) (b). How does the Minister of State see the relationship between this person and her Department, the relationship between the two people referred to here and the relationship between these two people and the commissioner working if they are or should be one and the same person? It is only on receiving this clarification that we can come to a final decision, but the fact that we need clarification means that the words need to be changed somewhat as well.

Professor Lee

I welcome the Minister's amendment in this regard and it takes on board a crucial point in the proposed amendments. I would echo Senator Henry in asking for clarification in so far as the Minister is able to give it at present on the time factor involved. In amendment No. 42 three of the four clauses referred to the implications of the time factor. It would be helpful if the Minister were to elaborate on that. I saw the Minister shaking her head negatively when Senator O'Toole was talking about his understanding of the meaning of "may". My understanding of "may" accords with his in normal parlance. If that is not the Minister's understanding I would be grateful for an elaboration on her reasons for that. I am troubled by the word "may" because of the obvious uncertainties of what it may mean, but also because in the preamble to the Dublin Convention, which governs this section, there is the clause "determined to co-operate closely in the application of this Convention through various means with our European Union partners." That presumably has some influence on our response on the implementation of the Convention.

It is possible the thinking in other European countries will go in a very different direction in the years to come from the liberalising intentions behind this Bill. That may not turn out to be the case at all with several of our European partners and it may well be that the Government here could come under pressure from people who are thinking very differently from the way we would wish to think. I do not know what latitude the preamble gives, but these are not just words. We should take cognisance of the possible implications of them on the possible interpretations that can be put on permissive phrases and directions in our phraseology.

Mr. Neville

I welcome the amendment to introduce an appeal system against the determination of a transfer for asylum to a Convention country. I agree with the other Senators that it is a positive approach by the Minister. In amendment No. 39e the Minister of State has catered for the appointment of a person to determine the appeals system. It is welcome; it is open and is in response to a considerable amount of debate which took place in this House.

Mr. Mulcahy

On Senator Henry's point, what is the suspensive effect of this proposed amendment? If, for example, the Minister makes an order transferring a person to a Convention state and there is an appeal, will that have the effect of suspending the Minister's decision? If the answer to that question is yes, where in the Bill or the amendment is that suspensive effect contained?

Ms Burton

On Senator Henry's point, an appeal under the Dublin Convention will have a suspensive effect. The removal of someone who has such an appeal outstanding is specifically precluded by section 9 (2). The timeframe will be a matter of days rather than hours and there is no intention to have undue haste.

The Dublin Convention is a two way option. If there are asylum seekers in this country who have previously been in another European state we have an option to apply the Dublin Convention, but we do not have to apply it. We can decide for various reasons to hear their application in this country rather than to seek to remit them to their country of origin. Alternatively, our European Union partners have the same rights and if, for instance, they find that somebody is in France who was previously in Ireland, they have the right under the Dublin Convention to remit them. We would be obliged under the Dublin Convention to hear their asylum appeal in this jurisdiction, but equally France would have the option whether to do that in accordance with the convention and French law.

The Dublin Convention was introduced to stop the phenomenon of refugees "in orbit", whereby refugees could end up travelling around the countries of the European Union without ever securing a place where their application for refugee status had to be heard. In that sense it is procedural and is designed to deal with that problem. The UNHCR welcomed that element in the convention. The content of the Dublin Convention was laid down during the last Irish EU Presidency. This is enabling legislation in the context of a convention which already exists, having been established by the European countries during that Presidency. The Dublin Convention is an option and we are providing for an appeals mechanism, a mechanism sought by the Senators and by a number of NGOs.

The amendment provides that the Minister shall appoint one of his or her officers to determine the matters referred to in subsection (2) (a), the Minister shall appoint a person to hear the appeal and the person shall have not less than seven years experience as a practising barrister. The consequence of Senator Mulcahy's amendment would be that the person would have to be a currently practising solicitor or barrister. That would mean that somebody working for a NGO but not practising as a barrister would be disqualified; a retired judge would be disqualified; an academic lawyer of great distinction in human rights matters but who is not a practising lawyer would also be disqualified. That is the reason for the Government's wording. Senator Mulcahy's amendment would limit the choice unnecessarily.

Senator O'Toole expressed concern about the use of "may" instead of "shall" with regard to enabling the making of regulations. I gave an undertaking earlier that there will be appeal provisions in the regulations. I do not know how far the Senator wants me to go but I cannot put it more strongly than the solemn undertaking I gave, which is already on the Official Record, that I will make regulations that will include an appeal provision. The effect of this structure is to enable an appeal to the courts with regard to all elements of this Bill. In setting out the appeal criteria I have sought to provide reassurance and structures in those areas that concerned Senators.

Mr. Mulcahy

I agree that section 9 (2) (a) can be interpreted to mean that there is a suspensive effect pending appeal. When section 9 was drafted an appeal procedure under section 22 was not envisaged. That is of some concern. Perhaps the wording of section 9 (2)(a) should be tightened by the inclusion of new words which would make it clear that there is a suspensive effect. That could be done on Report Stage.

I am not particularly hung up on the wording of my amendment regarding a practising barrister or solicitor of not less than seven years standing. The Minister of State's arguments are valid. However, the point made by Senator O'Toole, that it should not be a person from the Department, is equally valid. The amendment does not rule out such a possibility. It would not be appropriate if somebody working in the aliens' section of the Department of Justice and who had that amount of experience was appointed.

Ms Burton

The reference is to seven years experience as a practising barrister or solicitor. I am not aware of anybody in the Department of Justice who has seven years practising experience. The effect of the Senator's amendment is to deem when that practising experience must occur and my point is that such wording is unduly restrictive. A practising barrister or solicitor might go to work with a NGO and be appointed a judge or become an academic. That person then ceases to practise in the formal sense but has the necessary qualification.

Mr. Mulcahy

I agree and do not have a problem in that regard. However, the Minister must accept that frequently the State advertises for barristers and solicitors of seven or more years standing to join the public service. One could have somebody who was recruited to the Department of Justice, who had seven years relevant experience and who was still employed by the Civil Service in the Department, being appointed to hear the appeal. If the Minister of State agrees that she would not want that to happen, she should return on Report Stage with an amendment to exclude that possibility.

Ms Burton

There are no positions in the Department of Justice which require seven years practising experience. There are such positions within the public service, for example, in the Legal Aid Board, where people who practise as lawyers are required. I do not know if the Senator intends that they, or somebody who has worked in the Office of the Attorney General, should be excluded. The words mean what they say. The intention is to provide for the appointment of somebody who has relevant practising experience as a barrister or a solicitor. However, the wording does not confine the appointment to currently practising barristers or solicitors because a range of people might be available to offer their services in this regard whom it would be wrong to exclude.

Mr. O'Toole

I accept the Minister of State's point that section 9 has a suspensive effect. It can only mean that section 22 cannot be brought to its conclusion while there is an appeal procedure. It is clear that the person cannot be removed from the country. Senator Mulcahy has conceded the point with regard to his amendment to the Government's amendment and I agree with him.

However, a number of Members have raised another point. If the person happens to work in the Department of Justice, or in any Department, and if that person was required to find for an appeal against a ministerial decision, such a decision could put a career at risk. It would be utterly inappropriate if that should happen. However, there is a saver, which is why I will not push the point. If the wrong person were appointed and if that person had an interest in the decision going one way or another, the decision could be appealed in court. The law is strong enough to sustain that. If an inappropriate person were appointed, the appointment could be challenged and I am confident that would happen. It would be a stupid Minister who would make a wrong decision in that regard.

Anything can be done by means of an order under this section. Section 22(1) refers to "orders under the section" while section 22(2) refers to "an order under the section". It appears that section 22(2) refers to an order which would cover any and all aspects of paragraphs (a) to (i). I am not sure that this can be done in practical terms or that one order could deal with all that is required under paragraphs (a) to (i) and subsection (3) which states that:

An order under this section may make provision for such consequential, incidental, ancillary and supplementary matters as the Minister considers necessary or expedient.

It is highly unlikely that an order could deal with these provisions and also include an appeal procedure. An order for an appeal procedure would only be required when a person indicated that they were going to appeal. Is the Minister of State saying that an appeal procedure would be determined by the issue of the first order? In such a case the order would probably be issued without the full facts being available or on the basis of expecting a decision to go one way or another. There is confusion between section 22(1) which states that "The Minister may make such orders as appear to him or her to be necessary or expedient for the purpose of giving effect to the Dublin Convention", and the reference to "an order——

Ms Burton

In the interests of being helpful, perhaps an equivalent wording for "an order" would be "a regulation". These are not orders against individuals, they are the regulations under which the Dublin Convention would be enforced or arranged. Subsection (1) refers to the Minister making "such orders as appear necessary", in other words, there may be one or more orders or regulations. Perhaps the Senator is confusing this with the order that might be made against an individual in relation to the hearing of his or her case. This section refers to the regulations.

Mr. O'Toole

If that is the case, I misinterpreted the provisions of the section. I must confess, however, that I am not sure of the difference between a statutory order and a regulation; I will go to the trouble of discovering what is that difference. The implementation of statutory orders and regulations is clearly covered by many pieces of legislation which I have taken the trouble to read, and I must admit they are confusing. Is the Minister of State stating that when the legislation comes into operation the Minister of the day would introduce a standing order? That is news to me.

Ms Burton

The Minister of the day will make the regulations and statutory instruments which will set out how the section is to operate. That must be subject to the overall provisions of the Bill, including the appeal process which is being inserted by amendment No. 39e. That will be the normal process in relation to aspects of this particular Bill — for example, making an application, the format of the forms which must be used and all matters for which statutory instruments and regulations are required. I apologise that I am not a lawyer but these are the working orders or regulations. They are not orders made in favour of or against individual asylum seekers.

Mr. O'Toole

The Minister of State need not apologise for not being a lawyer. That is not a problem for this side of the House. If she is correct, the question of having any discretion about whether a general order covering the operation of this Bill should or should not include an appeals procedure does not arise. It must include an appeals procedure. If we are putting together a general regulation — I may not be using that word in the context of its proper legislative meaning — and there are a series of standing orders for the operation of this section to deal with cases, that order or regulation must include an appeal procedure. The question relating to "The Minister may" does not arise and we return to a harder line in the original point.

Ms Burton

Senators made the point that they wanted the appeal procedure to be included not in the regulations attaching to the Bill but in the Bill itself. We are doing that and I assume that is why Senators welcomed it. The appeal procedure is now included in the Bill whereas previously I undertook that it would be in the orders. It is now stronger because it is in the main Statute rather than in a subsidiary regulation. Earlier I gave a specific under-taking in relation to the appeals procedure.

Mr. Lanigan

Amendment No. 39e states:

The Minister shall appoint one of his or her officers to determine the matters referred to in subsection (2) (a).

Various reasons for this are provided in subsection (2) (a) which uses the terms "specify the circumstances", "shall be examined in the State", "shall be transferred" and "shall be accepted for examination". Subsection (2)(b) states that an order under section 22 may "specify that person who shall be responsible for determining the matters referred to in paragraph (a),". In that instance, there is no reference to the fact that a person must have served for seven years as a practising solicitor or barrister. That subsection is a very relevant part of the Bill.

Amendment No. 39e does not specify whether the officer involved should be a person in the Department, the Minister or someone else. Subsection (b) of the amendment states:

The Minister shall appoint a person (who shall have had not less than 7 years' experience as a practising barrister or solicitor before his or her appointment) to consider and decide appeals under subsection 2 (b).

How many of the Minister of State's officers have served for seven years as practising solicitors or barristers? Why does subsection (b) of the amendment require that a person "shall have had not less than 7 years' experience", while subsection (a) contains no indication that the Minister's officers need have practised as solicitors or barristers? If I read the amendment correctly, this is an absolute nonsense.

Ms Burton

We are discussing two different and distinct people. The first is an officer of the Department who would be of principal rank and who would make a determination. There is then a separate appeal procedure and the person who shall hear appeals will have the requisite legal experience. I assure the Senator that, to my knowledge, there is no individual of such qualification in the employment of the Department of Justice.

Mr. Lanigan

Is the Minister of State saying that the person making a determination would be obliged to consult someone with seven years' experience and need not have any experience of legal matters?

Ms Burton

We are trying to provide for a two stage process. The first relates to the initial determination of the application and the second involves the appeals process. It is in the appeals process that we have provided for the legal qualification. They are two separate people.

Mr. Lanigan

Therefore, the person who makes the initial determination need not have a legal background?

Ms Burton

Yes, it will be an official of the Department of Justice.

Mr. Lanigan

Where will the Minister find an official in the Department of Justice to make this determination with seven or more years experience as a barrister or solicitor?

Ms Burton

If the Senator reads the wording of amendment No. 39e, he will see we are talking about two people. The amendment states, first, the Minister shall appoint one of his or her officers to determine the matters referred to subsection (2) (a) and, second, the Minister shall appoint a person with the requisite legal qualifications to decide appeals. We are meeting the concerns previously expressed by Senators that the procedures in relation to the Dublin Convention were not incorporated in legislation and were a matter for regulations only. Bearing in mind the principles of natural justice, to which the actions of any Minister are subject, one could argue this would have been ultimately decided by the courts. However, on the basis of what Senators said in their earlier contributions, we are providing for a determination mechanism followed by an appeals mechanism. That was put to me in previous comments in this House.

Mr. Lanigan

If the person who determines the matter should go to appeal has to have a legal background——

Ms Burton

There are two stages. An official of the Department determines the initial application, followed by an appeal process which is determined by a person of appropriate long-standing legal qualification.

Mr. Lanigan

There is no indication in the Bill it has to be someone of long-standing legal qualification. The amendment states the Minister shall appoint someone to determine the matters. However, it is only after the determination of these matters that the question of seven years' experience arises. Why should somebody with seven years' experience be brought in afterwards when the person who made the decision does not, according to the Minister of State, have to have seven years' experience? I have to wait seven years whether I am a genius or fool. Why should the person who initially determines the matters not have to have seven years' experience?

Ms Burton

I do not consider it necessary. I consider it appropriate for an official in the Department — probably at principal officer level — to examine the application and make an initial determination on it.

Mr. Lanigan

Why should this official of the Department who will determine a legal situation not have to have four or five years' experience or be qualified as a solicitor or barrister? A person appointed as a Circuit Court judge has to have experience. The Minister of State's amendment states "The Minister shall appoint one of his or her officers to determine the matters referred to in subsection (2)(a)". Where is this person to come from? They are just an official of the Department.

Ms Burton

I would hesitate to refer to civil servants as just officials. Civil servants at principal officer rank, for example, have considerable experience and expertise. Perhaps this is particular to Fianna Fáil, particularly the Senator's colleague, but there is an excessive desire to turn everything relating to the asylum process into a major court of law which is entirely an appropriate matter for solicitors and barristers at, I presume, considerable cost to the taxpayer.

The asylum process is about someone who comes here explaining why under the Geneva Convention they qualify as having a well-grounded fear of persecution. The forum is not a court of law. It is a question of a person making an application and giving information to satisfy the person or persons hearing the application they qualify for refugee status under the Geneva Convention. It is not meant to be an adversarial court of law structure. If it becomes that it will be at considerable cost to the taxpayer, because there will be another bonanza for lawyers with no particular consequent benefit for the asylum seekers.

The UNHCR has stressed that the Geneva Convention is for people who meet the terms of the convention. Other people may seek to stay in Ireland to better their situation or for work opportunities. That is another area which is not dealt with in this legislation as it deals strictly with the Geneva Convention. Each stage of this process is not meant to be a court of law. However, to provide Senators with the appropriate assurance that asylum applicants will get a suitably considered hearing of their appeal, we are providing at the appeal stage in relation to the Dublin Convention for an appropriately qualified legal person. The initial determination is to be made by a senior official. Senior civil servants act in cognisance of the law and I am not aware of cases where they abused their powers.

Mr. Lanigan

The Minister of State is trying to turn the argument around.

Acting Chairman

We have discussed this matter for a long time.

Mr. Lanigan

The situation is not as the Minister of State said. Asylum seekers arrive under various programmes. We are talking here about non programme refugees who arrive here and it has to be determined whether they are legitimate asylum seekers. The Minister of State introduced the question of whether they want to work or are economic asylum seekers.

I am not criticising civil servants, but some of them do not understand the attitude of those seeking asylum. There are politicians who do not understand why people want to live in another country. We have a little problem here. The Minister of State should not suggest that just because someone is a civil servant they know the attitude of asylum seekers. An officer might have experience of Third World asylum seekers and be the best person in the world. Why then appoint someone who has to have seven years' experience as a solicitor or barrister to decide appeals?

Senator Gallagher has never had an asylum seeker coming into her in Monaghan and she has seven years experience as a lawyer. Seven years experience does not give anyone the right to determine such matters. There are solicitors in this country who, even though they have seven years experience, may never have dealt with asylum seekers. People with two years experience who have dealt with asylum seekers might be brilliant as the officer. There are solicitors and barristers in this country who have never seen an asylum seeker. If the terms "the Minister shall appoint a person to consider and decide appeals" and "seven years" were left out, we might get away from all the hassle. The Minister of State will do what she wants anyway. She will appoint the person and if they can do the job, let them do it. The provision for seven years is a load of rubbish. Why not four, six, eight, or ten years?

Ms Gallagher

I will attempt to shed some light on this matter, especially for Senator Lanigan. The proposed Government amendment No. 39e states:

"(4) (a) The Minister shall appoint one of his or her officers to determine the matters referred to in subsection (2) (a).

This amendment determines the matters referred to in subsection (2) (a), which is the application of the Dublin Convention, not the application for asylum. The Dublin Convention deals solely with what country will deal with the actual application. It is this alone which is being determined by the officer.

Mr. Lanigan

Which is us or the place they come from.

Ms Gallagher

It is not a judicial decision. For that reason, an officer within the Department of Justice is perfectly capable of making that decision. It is an administrative, not a judicial, decision. The Minister has introduced the appeal procedure in amendment No. 39a. I welcome this provision, which we sought from previous discussions. In amendment No. 39e, under subsection (4) (b), the Minister provides that the person involved in the appeals procedure would have judicial experience. This is in order to determine an appeal from the decision of the officer. Senator Mulcahy is wrong to put forward the amendment to amendment No. 39e as it excludes people eligible to hold the position of determining that particular matter of appeal. Any barrister or solicitor with seven years experience, not necessarily currently practising, would be perfectly capable of holding, and entitled to, that position. The Minister's amendment in this particular area is perfectly correct. I hope it is clear that the Minister of State appointing one of her officers to determine the matter in relation only to the Dublin Convention is legitimate.

Professor Lee

I signalled to the Chair's predecessor so long ago that if I do not get in now I will have forgotten what I was going to say. I may have forgotten it already because the debate has moved on, or sideways, since whatever we were discussing at that stage. I agree with the Minister's reading of section 9 (2) (a), if any of us can remember what it is.

I share Senator O'Toole's concerns about page 24 and the various subsections of section 22. Even the Minister's amendment lodges under the general permission of that three letter word "may", although I know there will be regulations. One should consider the possibility of a malign scenario in the area of EU refugee legislation in ten or twenty year's time. I am not suggesting this will happen and one hopes it will not. There cannot be complete confidence there will not be a movement in an illiberal direction in either public opinion or legislation. In such a case I would not want our Ministers, who may be unsympathetic to some of the provisions of this Bill, to interpret it illiberally. Ministers who may be sympathetic to the Bill should not find themselves in a position where they can be pressurised to co-ordinate with EU interpretations which would not be in accordance with ours. I would like this to be kept in mind in relation to the drafting of the Bill. This is why I am still uneasy about the use of the word "may" in amendment No. 39a. I would prefer Senator O'Toole's formulation or the Minister's alternative, if she thinks there is one which would be more effective.

I agree with the Minister of State that Senator Mulcahy's amendment to amendment No. 39e should not be phrased in a way that excludes qualified people who are not currently practising barristers of seven years standing. The position between the Minister for State and Senator Mulcahy refers specifically to whether current civil servants should be eligible. I agree with the Minister for State that there are qualified people for the position other than currently practising barristers of seven years standing. The Minister of State has not shown her hand on the issue of whether she accepts it should not be a current civil servant. If the Minister of State accepts that, it will be a simple matter on Report Stage to put in a few words to that effect. If the Minister does not accept that, the core of the difference between us should be made clear.

Dr. Henry

I sympathise with the Minister of State regarding the situation of practising barristers and solicitors.

However, Senator Lee has a point when he says we should be clear about whether the position could be filled by another departmental official. I sympathise with Senator Lanigan in relation to having someone with experience as a barrister or solicitor in the seeking of asylum and refugee status within the courts. These people are pretty rare at the moment and it might be extremely difficult to get someone to take a position like that. People who have experience in this area are certainly not precluded from what the Minister has provided for in the amendment. I hope this will be taken into consideration when a person is being appointed. Common sense generally applies to appointments and I would hope that anyone who had experience in the area of asylum seeking would be in a better position than someone who did not. It would be very useful to whoever was trying to adjudicate these appeals.

Mr. Mulcahy

I agree with the rationale of the Minister of State's comments and I do not think this is a controversial matter. The Minister of State could do us all a favour if she indicated on Report Stage that the person hearing the appeal would not be an officer of either the Minister for Justice or the Minister for Foreign Affairs. That is all we want. I do not want to exclude every civil servant.

Ms Gallagher

What would you allow civil servants do?

Mr. Mulcahy

The point has been eloquently made by Senator Lee. My concern is that there is no duplication of roles and that the person who would hear the appeal would not be an officer of the Minister for Justice or the Minister for Foreign Affairs. The way Senator Lee described the situation is very apt — the Minister of State has not shown her hand. She now seems to want to include the possibility that the person who hears the appeal could be someone from her Department. If that is not the case, it would take about seven words to put down an amendment on Report Stage. Is there a problem? Is there such a backlog in the Attorney General's office that they cannot draft a simple amendment, or is the Minister of State so proud that she will not allow us to put down a simple amendment. What is the problem?

Ms Burton

There is no problem.

Mr. Mulcahy

Will the Minister come back on Report Stage with an amendment to the effect that this person is not to be either an officer of the Minister for Justice or the Minister for Foreign Affairs?

Ms Burton

I can only reiterate that these provisions relate to the Dublin Convention and the Dublin Convention only. I assume that the Senator will accept the undertaking I have already given and outlined here on several occasions that there is no such person in the employment of the Department of Justice who holds these qualifications. It would be a foolhardy Minister, where the Bill has established for the purposes of the Dublin Convention an appeals mechanism, who would seek to undermine that mechanism by a dubious quality in terms of the appointment. It does not make any sense because we are setting out something here which is to meet the concerns expressed by the Senators. I reiterate that this section deals with the Dublin Convention only.

Mr. Mulcahy

We are aware of that.

Ms Burton

Perhaps Senators have roamed so far in the discussions that they may have touched on areas other than the Dublin Convention. I rest my case.

Mr. Mulcahy

I move amendment No. 1 to amendment No. 39a:

To add "on the grounds that the applicant if transferred to a convention country, will not be afforded a proper opportunity to assert his or her rights under the Geneva Convention".

Amendment No. 1 to amendment No. 39a put and declared lost.

Amendment put and declared carried.

Government amendment No. 39b:

In page 24, subsection (2) (f), lines 26 and 27, to delete "entry into, temporary stay and detention" and substitute "entry into and temporary stay".

Ms Burton

Rereading section 22 in connection with amendments Nos. 39a and 42 discussed earlier, it occurred to us that the reference to detention in paragraph (f) is unwarranted.

Mr. Mulcahy

On a point of order, amendment No. 39b does not appear on the grouping of amendments.

Acting Chairman (Mr. R. Kiely)

It does not appear in any grouping; it stands on its own.

Ms Burton

It is only proper that where the detention of a person whose application has been accepted by the State is required, such a detention should be governed by the general rules already set out in the Bill regarding people brought before the courts, etc. The amendment ensures that this will be the case.

I should mention a further matter which arose as a consequence of the reexamination of these provisions in the Bill to provide specifically for an appeal mechanism under the Dublin Convention. It may happen that some persons who are advised that their applications are to be transferred to another state may lodge an appeal against the decision and then disappear in an effort to frustrate their possible removal. Such an action would be a complete abuse of the asylum process. Where there is a reasonable suspicion that such would be the case it is proper that such a person be detainable and this should be a ground for detention under section 9. I will be bringing forward a suitable amendment on Report Stage. In the meantime I ask Senators to support my proposed amendments. These are subject to the provisions set out earlier with regard to detention and persons being brought before the courts at regular intervals.

Mr. Mulcahy

This is largely a technical amendment which will only be clarified on Report Stage. There must have been difficulties which led to the amendment. It is impossible for us to respond properly when we only received these amendments this afternoon. There may a genuine reason for this but it is difficult for us to respond before we have had a chance to examine them fully.

Amendment agreed to.

Acting Chairman

Amendments Nos. 39c and 39d are cognate and both may be discussed together.

Government amendment No. 39c:

In page 24, subsection (2) (g), line 32, to delete "(other than the State)".

Ms Burton

These drafting amendments seek to delete superfluous phrases. A convention country is defined in section 1 as being a country other than the State.

Mr. Mulcahy

This requires little discussion. We support the amendment.

Amendment agreed to.

Government amendment No. 39d:

In page 24, subsection (2) (g), line 33, to delete "(other than the State)".

Amendment agreed to.

Government amendment No. 39e:

In page 24, between lines 44 and 45, to insert the following new sub-section:

"(4) (a) The Minister shall appoint one of his or her officers to determine the matters referred to in subsection (2) (a).

(b) The Minister shall appoint a person (who shall have had not less than 7 years' experience as a practising barrister or solicitor before his or her appointment) to consider and decide appeals under subsection (2) (b).

(c) A person appointed under paragraph (b) shall hold office for such period and on such other terms and conditions as the Minister may determine when appointing him or her.".

Mr. Mulcahy

I move amendment No. 1 to amendment No. 39e:

To delete paragraph (b) and substitute the following paragraph:

"(b) The Minister shall appoint a person (who shall be a practising barrister or solicitor of not less than 7 years standing) to consider and decide appeals under subsection (2) (b).".

Amendment to amendment No. 39e put and declared lost.

Amendment put and declared carried.

Acting Chairman

Amendment No. 41 is an alternate to amendment No. 40 and both may be discussed together.

Mr. Mulcahy

I move amendment No. 40:

In page 25, between lines 23 and 24, to insert a new subsection as follows:

"(10) For the avoidance of doubt, in the event of any conflict occurring between the Dublin Convention and the Geneva Convention, in relation to an applicant, the Geneva Convention shall prevail.".

It is with great moment that this amendment is moved. Were it not for the fact that I regard this as extremely important and the key issue in the way asylum seekers are going to be treated in this country for as long as this Bill is on the Statute Book I would be tempted to cut short my remarks and reiterate some of the comments made earlier.

I do not yet know what attitude the Minister will take to this amendment, but I hope it is positive. If she takes a negative attitude it will widen the door of suspicion that many people have that the terms of the Dublin Convention will be used, in effect, to subvert the Geneva Convention of 1951 as amended by the New York Protocol.

I will reiterate what the Minister of State told us about the relationship between the Dublin Convention and the Geneva Convention. She said the Dublin Convention is subordinate to the Geneva Convention. Her rationale for that proposition is the text of the Dublin Convention. I pressed the Minister of State to indicate any specific wording in the Dublin Convention which makes it clear that it is subordinate to the Geneva Convention and, lawyer or not, she failed that test dismally.

Ms Gallagher

That is unfair.

Ms Burton

A little humility would go a long way, Senator.

Mr. Mulcahy

I do not need lessons in politics or humility from anyone from the Labour Party, which has a singular lack of either.

Acting Chairman

The Senator should speak to the amendment.

Mr. Mulcahy

Will you ask the Minister of State not to make snide political comments?

Ms Gallagher

What does the Senator call what he has said?

Acting Chairman

Speak to the amendment.

Mr. Mulcahy

On a point of order, will you ask——

Acting Chairman

I ask the Senator to speak to the amendment. Senator Mulcahy without interruption.

Ms Gallagher

And without attacking the Minister.

Acting Chairman

Without interruption.

Mr. Mulcahy

If the Labour Party is going to laugh its way through——

Acting Chairman

Speak to the amendment, Senator.

Ms Gallagher

Jealousy will get the Senator nowhere. It is just because we are on this side of the House and we are putting through legislation such as this.

Acting Chairman

I would appreciate if Senator Gallagher would desist from interrupting. Senator Mulcahy should speak to the amendment.

Mr. Mulcahy

I have been jealous of many things in my life but membership of the Labour Party is not one.

Mr. Neville

What has that to do with the amendment?

Ms Gallagher

We would not have the Senator.

Acting Chairman

Senator Mulcahy should speak to the amendment and he should be allowed to speak without interruption.

Mr. Neville

If he continues to speak to the amendment.

Ms Gallagher

We are fussy about our members.

Acting Chairman

I said without interruption, Senator Neville.

Mr. Mulcahy

The Minister of State indicated that the Dublin Convention is subordinate to the Geneva Convention. I asked her for evidence of that proposition and the only evidence she could give me——

Ms Gallagher

The Senator is the lawyer.

Mr. Mulcahy

——was to refer to the Dublin Convention. Its strongest statement in this regard is in the preamble which states:

[The members states] DETERMINED, in keeping with their common humanitarian tradition, to guarantee adequate protection to refugees in accordance with the terms of the Geneva Convention of 28 July 1951, as amended by the New York Protocol of... 1967.

That is a guarantee given by EU member states that they will comply with their obligations under the Geneva Convention. However, it is the opinion of the UN that many countries which signed the convention do not take that guarantee seriously. That is why my amendment is essential.

The preamble also states:

[The member states] DESIRING to continue the dialogue with the United Nations High Commissioner for Refugees in order to achieve the above objectives;

DETERMINED to co-operate closely in the application of this Convention through various means, including exchanges of information, HAVE DECIDED TO CONCLUDE THIS CONVENTION AND TO THIS END HAVE DESIGNATED AS THEIR PLENIPO-TENTIARIES:

Article 1, subsection 1 (b) states:

Application for asylum means: a request whereby an alien seeks from a Member State protection under the Geneva Convention by claiming refugee status within the meaning of Article 1 of the Geneva Convention....

All the above is simply a restatement of obligations under the Geneva Convention.

Article 2 states:

The Member States reaffirm their obligations under the Geneva Convention, as amended by the New York Protocol, with no geographical restriction of the scope of these instruments, and their commitment to co-operating with the services of the United Nations High Commissioner for Refugees in applying these instruments.

That is all very well; it is laudable and we can all agree with it. However, it does not give a guarantee to asylum seekers that their rights under the Geneva Convention will be given priority. I am amazed the Minister of State expresses opposition to an amendment which would have the effect of doing that which she says she supports.

The Minister of State says the supports the proposition that the Geneva Convention is superior and antecedent to the Dublin Convention. She has said the Dublin Convention is subordinate to the Geneva Convention. If we are to believe her, why does she object to the simple and plain formulation of words in the amendment? If the Minister is going to oppose the amendment we have to ask why. She may say the amendment is not needed; that it is superfluous because the point is obvious from the text. However, I have challenged her to give one example from the Dublin Convention or from the Bill which specifically states that the Dublin Convention is subordinate to the Geneva Convention.

The Minister of State should accept the amendment because if there is any doubt or conflict and somebody is sent back to a dangerous third country, it is not the Minister of State or any Member of the House who will pay the price. The person who has come to this country via a third country in the EU and who is sent back to another country may be oppressed, tortured or murdered. The onus is on the Minister of State to say why this amendment should not be accepted. This is a matter of conscience and I do not say that lightly.

Ms Gallagher

It is a matter of international law.

Mr. Mulcahy

I do not have any particular expertise in this area.

Ms Burton

No, the Senator does not.

Mr. Mulcahy

The Minister of State may have more experience in this regard and, therefore, there is an added onus on her to support this amendment.

A letter from the UNHCR of 14 June 1994 states that it is the view of the United Nations High Commissioner for Refugees — a person of high international stature — that "... the Austrian asylum law and practice is not in full conformity with generally accepted standards of international law". That was the view of a representative of the UNHCR. I have a letter from the UNHCR dated 3 March 1994 which states——

Ms Burton

I am sorry to disturb the Senator's flow of language but on a point of information, I would remind him that when Fianna Fáil——

Acting Chairman

I hesitate to interrupt the Minister but she will have an opportunity to reply.

Ms Burton

This is a point of information. Austria is not a party to the Dublin Convention. Fianna Fáil was in power when the then Minister, Deputy Burke, brought it into effect but at that time Austria was not a member of the EU.

Acting Chairman

The Minister will have an opportunity to reply; it was not proper to interrupt.

Mr. Mulcahy

The letter of 3 March 1994 states:

The UNHCR's concerns relate to the case of asylum applicants who have not come to Greece directly from their country of origin. The asylum procedure and practice in Greece are still in a transitional phase since it, until recently, considered itself to be a transit country rather than a country of permanent asylum. [This is a member state of the EU.] A second concern relates to Greek law and practice concerning removal to third countries.

This is clear concern expressed by the UN about a fellow EU member state in relation to this matter. Amnesty International issued a paper in 1992 entitled "Europe: Harmonisation of Asylum Policy — Amnesty International EC Project". I can make this paper available to the Minister if she does not already have it. The paper states:

The arrangements set out in the Dublin Convention could in practice mean that a person seeking asylum in a member state may be compelled to lodge his or her application in a country whose procedures lack essential safeguards.

Is the Minister aware that, for example, certain EU member states do not have suspensive effect in their official procedures? Is she aware that if someone is sent back to one of those convention countries and goes into an appeal procedure that does not have suspensive effect, that person may be sent back to a country where he or she will be tortured or murdered? I may not have a record similar to the Minister's on this matter, but what I seek to achieve in my public life is absolute consistency.

Ms Gallagher

The Senator has that all right.

Mr. Mulcahy

There is no point being a member and a signatory to the Geneva Convention if we are going to bring in a subsidiary or, to use the Minister's word, subordinate convention which may have the effect of negating the terms of the first convention. The UN Convention on the Protection of Refugees is a high and solemn document which was debated internationally and in this House. It is one of the most important international treaties. As far as I know, the Dublin Convention has never been debated in this House, other than in the debate on this Bill.

Mr. Gallagher

Why was——

Acting Chairman

Senator Gallagher, you have indicated you wish to speak and you will do so when you are called.

Ms Gallagher

I look forward to that.

Mr. Farrell

Senator Gallagher is getting a little angry.

Mr. Mulcahy

I also look forward to the Labour Party contribution when we will hear its real policies.

Acting Chairman

Senator Mulcahy, speak to the amendment.

Mr. Sherlock

The Senator is being repetitive.

Acting Chairman

I will rule on that Senator Sherlock.

Mr. Mulcahy

I presume the Minister will tell Amnesty International either that its opinion is wrong or that it need have no concern. However, under this Bill as drafted the Minister cannot — and, if she opposes my amendment, will not — exclude the possibility that persons will be returned to countries in Europe which have signed the Dublin Convention which will send people to their demise. The Amnesty paper also states:

In Finland, an asylum seeker whose case is considered to be manifestly unfounded is subject to an accelerated procedure and is interviewed in person only by the police while the actual decision is made by the Ministry of the Interior in consultation with the Ombudsman for Aliens in the Ministry of Social Affairs and Health. The final decision is made by way of an automatic review by the chair of the asylum appeals board in the Ministry of Justice but this review is cursory and done without personal interview with the asylum seeker. There is no possibility of appeal against a decision. An asylum seeker whose application has been rejected in this procedure may appeal against expulsion or deportation, but in the case of such asylum seekers who have been in the country less than three months who are issued with an expulsion order, such an appeal has no suspensive effect on the expulsion. [Norway is not a member of the convention but the Amnesty document indicates that some of our European partners feel they have obligations under it.] In Norway an appeal against a decision is possible but it does not have suspensive effect.

This is overwhelming evidence that there is a problem. The Minister will do her best to sweep it under the carpet but my amendment gives her an opportunity to deal with it.

The UNHCR has provided statistics for cases in the UK. It lists where there were grounds for cases being referred back to the Secretary of State, where the third country was an EU member state — Austria, Belgium, Denmark, France, Germany, Greece, Holland, Italy, Luxembourg, Portugal, Spain and Sweden.

Mr. Neville

On a point of information, from what document is the Senator quoting?

Acting Chairman

He said it was a UN document.

Mr. Mulcahy

The percentage of cases referred back on grounds of safety were 100 per cent of cases from Austria; Belgium, 11.3 per cent; Denmark, 100 per cent; France, 44 per cent; Germany, 25 per cent; Greece, 0 per cent — there was only one applicant; Holland, 43.8 per cent; Italy, 90.2 per cent; Portugal, 50 per cent; Spain, 50 per cent; and Sweden, 66.6 per cent. To quote from another document——

Acting Chairman

What is the source of this document?

Mr. Mulcahy

It was sent to me by the UNHCR in London.

Ms Burton

Which document is it?

Acting Chairman

He has quoted that.

Mr. Neville

He quoted the source, not the document.

Acting Chairman

Senator Mulcahy to continue.

Mr. Mulcahy

This document lists adjudicator decisions in third country cases. Out of 285 cases, the total number referred back to the Secretary of State for substantive consideration or reconsideration was 61 per cent. In 9.5 per cent of cases, there were grounds for cases being referred back to the Secretary of State.

Mr. Doyle

On a point of order, the House has a right to know who the adjudicator was in these cases and what were the grounds of adjudication.

Mr. Mulcahy

I am coming to the grounds of adjudication.

Ms Gallagher

We want to know the date of the document.

Mr. Neville

We also want to know which document it is.

Acting Chairman

He has quoted the document.

Mr. Mulcahy

This is a UN document.

Ms Gallagher

With respect, on a point of order, he has not quoted the source sufficiently for us to recognise it. As Senators we are entitled to that information. This is an abuse of the procedures of this House.

Acting Chairman

Has Senator Mulcahy any further information on the source of his document?

Mr. Mulcahy

The source of this document is that it was sent to me by the UNHCR in London. It is dated today. This document is available to anybody for reference after today. I will give it to them gladly.

Mr. Neville

I am surprised that all parties were not supplied in the same way.

Acting Chairman

Senator Mulcahy, without interruption.

Mr. Mulcahy

It is terrible to see the rainbow coalition arguing against justice for refugees.

Acting Chairman

Speak to the amendment.

Ms Gallagher

We are anxious to get this legislation passed, unlike yourself, Senator Mulcahy.

Mr. Sherlock

What is the relevance of this document?

Acting Chairman

He quoted it and a ruling has been made on it.

Mr. Mulcahy

If the Senator had been here earlier he might understand it better.

Acting Chairman

I appeal to Senator Mulcahy to speak to the amendment. I appeal for no further interruptions and for the rule of the Chair to be obeyed. Senators should address the Chair rather than others.

Mr. Mulcahy

The document details adjudicator decisions in third country cases between September 1994 and December 1995. In 68 cases the adjudicator was not satisfied that procedures in the third country were adequate for the appellant to be returned and an asylum claim considered. In 15 cases the adjudicator based a decision on a statement of an official in a third country and/or specific inquiries to a third country regarding safety. The following category is interesting. In 27 cases the adjudicator based a decision on the possibility of an appellant being returned to unsafe "fourth countries" by the authorities in the third country.

We can see experience, not a few hundred miles from here, has led to concern at the very highest authority of those dealing with asylum cases that people may be sent back to unsafe countries. I ask the Minister to address this concern. If she will not address it, there is an onus on her to indicate why.

I want to read from another paper. The source is the Seventh ELENA International Course on Asylum and Refugee Law. I notice the Minister is making copious notes; she is obviously very interested.

Mr. Doyle

Withdraw that remark.

Acting Chairman

The Senator should withdraw that remark.

Mr. Mulcahy

I withdraw it.

Acting Chairman

Speak to the amendment.

Mr. Mulcahy

It took place at Esperia Palace Hotel, Athens, from 8 to 11 December 1994. The document is entitled "Safe Third Countries Myths and Realities" and is written by Eva Kjaergaard, legal officer, ECRE and co-ordinator for ELENA. Paragraph 11 reads:

The notion of "safe third country" or "host third country" is described as follows: An asylum seeker is denied access to the refugee determination procedure in a European country on the grounds that he or she already enjoyed, could or should have requested and, if qualified, would actually be granted asylum in another country.

Paragraph 37 reads:

The cornerstone of refugee protection [this is the kernel of my amendment]——

Mr. Doyle

I am glad to hear we are getting to the kernel.

Acting Chairman

Senator Mulcahy, this is similar to a Second Stage speech.

Mr. Mulcahy

No, I am speaking strictly to my amendment.

Acting Chairman

But I do not think you——

Mr. Mulcahy

I am not budging from my amendment.

Mr. Neville

That is debatable.

Mr. Mulcahy

Join in the debate then instead of heckling.

Ms Gallagher

We would if you stopped hogging the floor.

Ms Kelly

You have been talking for 20 minutes. I have been timing you from my office.

Acting Chairman

That is irrelevant.

Ms Kelly

It is not. A Second Stage speech——

Acting Chairman

It is irrelevant. You seem to ignore the Chair completely. There is crossfire, which is not right for this House and definitely does not do it justice. I ask Senator Mulcahy to limit his quotations, if possible, and to speak to the amendment.

Mr. Mulcahy

I have to say one thing. I do not want to be a party to a person ever being sent back to an unsafe country. Therefore, I will not hurry this if, by not hurrying, we have a chance of avoiding an injustice. I want to read from paragraph 37 of the paper from which I have just quoted. It is absolutely on the point.

The cornerstone of refugee protection, codified in Article 33 of the 1951 Geneva Convention prohibits the return in any manner whatsoever of a refugee to the frontiers or territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Ms Burton

That is section 5 of the Bill.

Mr. Mulcahy

It continues:

By not ensuring that an asylum seeker can gain access to the territory and to a fair refugee determination procedure in the receiving country, sending States risk, directly or indirectly, violating the principle of non-refoulement and thereby abrogating a fundamental principle recognised in customary international law as applying to all States, and not merely those signatory to the 1951 Geneva Convention and the 1967 New York Protocolumn

The Minister is aware that all of the agencies involved in this area are concerned that the Dublin Convention will have the effect of sending people back to countries where they will not be safe.

Lest I am not believed, I would like to quote some case histories. This is an extract from First Safe Country, a booklet compiled by ECRE, the same organisation from which I just quoted. Case history No. 7 refers to a Togolese national who travelled from Toga to Belgium and on to Germany. His date of arrival was 5 July 1994,

Ms Gallagher

What does that have to do with the amendment?

Mr. Mulcahy

He was removed from Germany to Belgium and from Belgium to Togo and the date of removal was 5 July 1994. The conclusion reads "Returned to country of origin, now in hiding in Benin." The document continues:

A Togolese national left Togo on 4 July and claimed asylum at Munich Airport in Germany on 5 July.

The German border police refused to entertain his claim on third country grounds as the asylum seeker had previously spent a few hours in transit at Brussels airport.

This is very relevant because one of the rules under the Dublin Convention is that where a person has travelled through a convention country to their ultimate country of asylum application, they will, under the Dublin Convention, be sent back to the first European country they entered and it is in that country that their asylum application will be considered. The case history continues:

Despite having a relative in Germany he was subsequently returned to Belgium where he applied for asylum on 5/6 July 1994.

His application for asylum was refused on the grounds that his claim had previously been examined in Germany, combined with the evaluation that the asylum seeker had left Togo "for economic reasons".

An expulsion order issued by the Belgian authorities on 29 July stipulated that the asylum seeker should be removed to his country of origin immediately.

According to a statement by a cousin of the asylum seeker, who is resident in Lome, the asylum seeker, upon his arrival in Togo, fled to Benin where he is now in hiding.

I have details of a similar case which relates to somebody who came from Algeria through Belgium into Denmark. The last line reads: "After intervention by his relatives in Algeria, the applicant was released two days later and is now in hiding in Algeria."

The Minister failed to provide one whiff of evidence that there is any wording in the Dublin Convention which says it is subordinate to the Geneva Convention. I can only anticipate that she will deal with the wording of the Dublin Convention and the rules contained in it. Having read it, I believe there are essentially five different rules or criteria under which persons subject to it will be examined. When its rules are examined — this is completely pertinent to my amendment — it is easy to see not only that there is a possible conflict between it and the Geneva Convention but that in certain cases the exercise of the former will have the effect of making it superior to the latter.

Article 4 of the Dublin Convention states that:

Where the applicant for asylum has a member of his family who has been recognised as having refugee status within the meaning of the Geneva Convention, as amended by the New York Protocol, in a Member State and is legally resident there, that State shall be responsible for examining the application, provided that the persons concerned so desire.

The family member in question may not be other than the spouse of the applicant for asylum or his or her unmarried child who is a minor of under eighteen years, or his or her father or mother where the applicant for asylum is himself or herself an unmarried child who is a minor of under eighteen years.

The words "provided that the persons concerned so desire" would be the only safeguard which might protect persons from being effectively deported to another Dublin Convention member state where they had a relative who had been processed under the Geneva Convention. However, from the earlier examples I gave it is obvious that under this Bill, if the Minister decides, the person loses on appeal and is sent back to Greece where a relative already has the protection of the Geneva Convention, that person might not get a proper hearing in Greece and may end up being transferred to an unsafe third country.

Article 5 of the Dublin Convention states that:

Where the applicant for asylum is in possession of a valid residence permit, the Member State which issued the permit shall be responsible for examining the application for asylum.

If a person was temporarily in one of the countries which signed the convention but do not operate correct procedures with regard to refugee applications and that person obtains a residence permit, he or she could be transported from Ireland back to that country and, as per the examples I have already given, be deported to an unsafe country.

Article 6 is even more dangerous and has no mirror or cognisant part in the Geneva Convention. It states that:

When it can be proved that an applicant for asylum has irregularly crossed the border into a Member State by land, sea or air, having come from a non-member State of the European Communities, the Member State thus entered shall be responsible for examining the application for asylum.

If somebody from Hungary irregularly crosses the border into Greece and then comes to Ireland and the Minister returns that person to Greece——

Ms Burton

I was not aware that there is a border between Hungary and Greece.

Acting Chairman

Senator Mulcahy without interruption.

Ms Burton

I have been asked to consider a point seriously and I cannot do so if I do not understand it.

Acting Chairman

Minister, you will have an opportunity to reply. What we are now discussing should be discussed under the Fourth Schedule.

Ms Burton

On a point of information, could Senator Mulcahy explain how somebody could cross the border between Hungary and Greece. This is a feat of geography of which I was not aware people were capable.

Mr. Mulcahy

I am sorry that the Minister seeks to demean my argument by nit picking for the sake of it. I ask the Minister to take the example of any country which is not a member of the EU and to suppose that a person from it crosses irregularly into a country which is an EU member. Austria, for example, has borders with non-EU member states and people can irregularly cross these borders. We should keep the argument at a high level.

Dr. Henry

Is the Geneva Convention an international one?

Acting Chairman

Senator, you will have an opportunity to speak when Senator Mulcahy has concluded.

Dr. Henry

May I have clarification on this?

Acting Chairman

Senator Mulcahy should be allowed to conclude. When he has done so, you can make your contribution.

Mr. Lydon

On a point of order, is there such a thing as a point of information?

Acting Chairman

No. I remind Senators that interruptions delay the proceedings.

Mr. Mulcahy

Article 7 of the Dublin Convention states that:

The responsibility for examining an application for asylum shall be incumbent upon the Member State responsible for controlling the entry of the alien into the territory of the Member States, except where, after legally entering a Member State in which the need for him or her to have a visa is waived, the alien lodges his or her application for asylum in another Member State in which the need for him or her to have a visa for entry into the territory is also waived. In this case, the latter State shall be responsible for examining the application for asylum.

I will not lengthen the proceedings by giving specific examples of where this could apply. Suffice it to say that there is enough scope here for persons to be sent back to a Dublin Convention member state in circumstances where they will not be able to properly assert their rights under the Geneva Convention.

Article 8 states that:

Where no Member State responsible for examining the application for asylum can be designated on the basis of the other criteria listed in this Convention, the first Member State with which the application for asylum is lodged shall be responsible for examining it.

This is a good provision because it makes clear that if the first country in which an application is lodged is Ireland, then it is only Ireland which will examine it. The Dublin Convention was discussed and debated considerably on Committee Stage of this Bill in the Dáil. I await with great interest what the Minister will say. Earlier she said she is not well versed in legal matters. I hope she will not exclude the possibility that, unfortunately, there will be court cases on this issue.

It is the object, role and duty of legislators to make legislation clear, forthright and understandable. The Minister may say this will never be a problem, but if this is the case why should she object to the amendment? Of all the issues not just in this Bill but which have been debated in this House for a long time, the issue of whether the Dublin Convention is subordinate to or takes precedence over the Geneva Convention is one of the most significant human rights issues this House will debate for a long time. I hope the Minister will rise to the challenge of accepting these amendments or saying reasonably why they should not be accepted. The onus is on her.

Dr. Henry

My amendment is similar to that of Senator Mulcahy's. Like the Minister, I am not a lawyer, and Senator Mulcahy has an advantage there. However, I have consulted international experts on refugee law. The information I have been given is that the Geneva Convention is an international treaty subscribed to and ratified by more than 100 countries. The Dublin Convention is a regional convention originally subscribed to by 12 countries, and now by 15. It is inferior to the international Geneva Convention.

Ms Burton

Thank you, Senator.

Dr. Henry

Article II of the Dublin Convention says that "The member states reaffirm their obligations under the Geneva Convention as amended by the New York Protocol". That means those who framed the Dublin Convention realised that their convention was inferior to the Geneva Convention.

Before moving my amendment, which is the next to be discussed, I did not have the benefit of this advice but, having discussed it with international refugee lawyers, I have been informed that this is the factual position. Am I right?

Mr. Neville

I concur with Senator Henry in saying that the Dublin Convention is subordinate to the Geneva Convention. Many of Senator Mulcahy's arguments concern the setting up of an appeal system which the Minister introduced earlier and with which we agreed. Senator Mulcahy's speech totally dismantled the Dublin Convention which was organised, developed and introduced by the then Minister for Justice, Deputy Ray Burke. At the time we accepted it as an important progressive document dealing with refugees.

While I had strong differences with Deputy Burke, he was quite a progressive Minister who did a lot of good. I cannot accept the dismantling of a document which he brought in during the last Irish Presidency of the EU. I totally disagree with the way in which the Dublin Convention has been dismantled by Senator Mulcahy.

Senator Henry has clearly stated that the Geneva Convention, as an international convention, supersedes the Dublin Convention which is a regional one.

Professor Lee

As a non lawyer, I accept that the Dublin Convention occurs within the framework of the Geneva Convention and the thinking occurring in it, although I do not know whether it is inferior or subordinate to it. Having said that, there are some things in the Dublin Convention which would not make me averse to having something included along the lines of the Geneva Convention, as an international convention takes precedence over the Dublin Convention in the event of a possible conflict of interpretation between them. That would be something along the lines of Senator Henry's and Senator Mulcahy's amendments even accepting the assurances that have been given about international law.

There are phrases in the Preamble to the Dublin Convention which we have to sign for reasons of common courtesy. They include "in keeping with their common humanitarian tradition, to guarantee adequate protection to refugees in accordance with the terms of the Geneva Convention". In that light, there could be a very considerable question mark over interpretations of the "common humanitarian tradition" of certain member states of the European Union.

Not to linger over words, I am concerned with where we may be going. Earlier I cited the phrase "determined to co-operate closely in the application of this Convention through various means". The Minister said we had options and I accept that in principle but we all know that as things develop, particularly in a move towards an ever closer Union, pressures can be exerted that one might prefer not to happen.

Article 16.2 of the Dublin Convention says that:

If it proves necessary to amend this Convention ["necessary" is a loose word. Who decides what is necessary, when and for what reasons?] pursuant to the achievement of the objectives set out in Article 8a of the Treaty establishing the European Economic Community [I hope the Minister's memory is better than mine about what Article 8a says] such achievement being linked in particular to the establishment of a harmonised asylum and a common visa policy...

I would wish us to enter any such discussions from the strongest possible base in terms of the principles that all of us in this House wish to see observed in terms of our own refugee and asylum law. I do not want to go through Articles 17 and 18 in detail but it is clear that the signatories to the Dublin Convention envisaged circumstances where it might need to be suspended, maybe for what at the time would seem to them to be good reasons and maybe even to us. But presumably the suspension would include a suspension of phrases referring to the Geneva Convention in that context.

Not being a lawyer and realising that arguments can be presented both ways, there is an open ended potential for the Dublin Convention which it behoves us to take seriously even if it seems hypothetical at this stage. Even if we all, except Senator Mulcahy, agree that it seems to be self-evident at this stage, I would not be averse to having specific phrases included to make our understanding of the relationship between the two conventions crystal clear.

Ms Gallagher

Relating directly to Senator Lee's point, there is a difficulty there because in terms of international law it would not be within our power to determine the balance between the Geneva Convention and the Dublin Convention. It would not be for us to decide; it is a matter of international law. While I would like the Minister to have that type of power, it is not within her authority to put that forward.

I am aggrieved that while the priority is to pass legislation that would protect refugees, at this rate we will not achieve that. I am also concerned that we have been subjected to Senator Mulcahy waxing eloquent on his ego trip or legal trip when a bit of intelligence and information would have sufficed.

Mr. Lydon

That is grossly out of order.

Ms Gallagher

I am happy that Senator Henry has clarified the matter in terms of which would take precedence. It is clear that where there is a conflict the Geneva Convention will prevail. The Geneva Convention deals in a comprehensive way with all matters relating to refugees. It must be accepted that the Dublin Convention relates only to the procedural matters within its own membership in the European states.

If the UNHCR felt many of the documents, read word for word by Senator Mulcahy, were that important, I am amazed it did not send them to any other Member of the House to enlighten us on the debate. Be that as it may, it is clear that the documents quoted by Senator Mulcahy refer to the need for an appeal which has been introduced by the Government in this debate.

The other matter of concern with regard to the possibility of people finding themselves in non-friendly states is comprehensively dealt with in section 5 (1) which requires that:

A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

That deals with many of the concerns that were raised.

We have wasted much time arguing about precedent. The precedent of the Geneva Convention versus the Dublin Convention is clear; the latter is simply an administrative and procedural convention.

Mr. Lydon

Senator Lee mentioned the common humanitarian tradition. If that was to apply to the British, for example, I do not know what we would do because they have continually indulged in human rights abuses against the nationalist population of the Six Counties and have been brought before the European Court of Human Rights and found guilty more than any other state. I would like to see something more specific included in the legislation. Senator Mulcahy is not doing this for a reason other than to bring about good law. I was surprised Senator Gallagher said he was lacking in intelligence, which is obviously not the case.

Ms Gallagher

Nothing is too obvious in this debate.

Mr. Lydon

The Senator said he was on an ego trip — an unnecessary comment from such an intelligent person.

Mr. Sherlock

This is progressive legislation which gives "EFFECT TO THE CONVENTION RELATING TO THE STATUS OF REFUGEES DONE AT GENEVA ON THE 28TH DAY OF JULY, 1951,". Much has been made of the Dublin Convention versus the Geneva Convention. The Dublin Convention “means the Convention determining the state responsible for examining application for asylum lodged in one of the Member States of the European Communities”. It would hardly refer the case of an asylum seeker unless that state was subject to the terms of the Geneva Convention.

Dr. Henry

The nub of this amendment is to ensure that asylum seekers get justice. As Senator Lee said, there are differing levels of what are considered humanitarian issues even in the European Union. That is why it is important that there is an appeal procedure. The Minister promised that not only would there be an appeal but that there will be a sustained period before the person can be deported and that they can have counsel. Senator Mulcahy may have consulted greater experts on international and refugee law than I, but those I consulted told me that the international conventions supersede regional conventions.

Professor Lee

I agree with Senator Sherlock that this is progressive legislation and I am anxious that it is interpreted as progressively as possible. Senator Gallagher said something which disturbed me, if I understood her correctly. She said it was not within our power to determine whether the Geneva Convention took precedence over the Dublin Convention.

Ms Gallagher

It is subject to international law.

Professor Lee

Would it be possible to include a phrase stating it is "our understanding" that the Geneva Convention takes precedence over the Dublin Convention?

Ms Burton

It is important to understand that the Dublin Convention is essentially a set of procedural or technical rules as opposed the development of asylum philosophy or thinking. Its overall object is therefore limited and it is not intended to expand on the Geneva Convention. The Convention's starting point is that it guarantees the commitment of member states to honour their obligations under the Geneva Convention and the New York Protocol and to give effective protection to refugees in accordance with the Geneva Convention. It specifically provides for this in the Preamble and in Article 2. It is clear from the texts of the two conventions — in particular, the Dublin Convention — that it is subservient to the 1951 Geneva Convention, the point Senator Gallagher made. Obviously, that would be a matter for international law to determine but we are offering that as our opinion. I cannot determine international law.

Senator Henry referred to the best international advice which she received, presumably from Trinity College. I sought the advice of the Attorney General in this matter and he confirmed my opinion. In addition, he pointed out that the amendments are inappropriate as neither Convention is being transposed directly into Irish law and that such a provision would have to be seen as a reservation to the Dublin Convention, which is not possible as we already signed the Convention. It was signed by no less an authority than the former Minister for Justice, Deputy Ray Burke, who was fully aware of the humanitarian, legal and other implications. The original form of this Bill was brought before the House by no less a person than the former Minister for Justice, Deputy Geoghegan-Quinn.

In Senator Mulcahy's long voyage around the amendment, if I may classify it as such, serious aspersions were cast on the people who led us into the Dublin Convention. Grave doubts were cast on the bone fides of two Ministers from his party. While it is not my job or role to defend those people, they do not pose a threat to humanitarian society and solidarity as we understand it.

I would like to address the general point raised, which perhaps Senator Mulcahy sought to address but did not get to it in his voyage. There are concerns in relation to asylum practices in a number of EU member states. We must remember this Bill is probably the most liberal legislation brought before any European Parliament and it is widely acknowledged as such.

Mr. Mulcahy

I have no problem with that.

Ms Burton

I would be reluctant — I say this in a considered way — to cast stones at the traditions of our European partners in relation to asylum matters. Many of the partners referred to have given asylum to hundreds of thousands of people in extraordinarily difficult situations. As recently as the conflict in former Yugoslavia, a region of Germany had 400,000 asylum seekers in one year. However, that is not to say we may not find fault with German asylum procedures, but I would be reluctant to cast doubts on the humanitarian traditions of our European partners when we have produced a Bill at such a late date.

Had the Senator gone further in relation to the UNHCR's comments on different countries of the European Union he would have found that the primary comment in relation to Ireland was that we had no legislation, not that it was defective. We only had the procedures we discussed earlier. While the Senator and his party may find flaws and strenuously criticise other European Union countries, the former Ministers for Justice, Deputy Burke and Deputy Geoghegan-Quinn, did not seek to do so as recently as a year and a half ago.

If Senator Mulcahy wants to criticise European asylum developments, he is talking about changing the Convention in the future by amendment or Protocol by putting forward a case, having first put in place our own asylum legislation. I am prepared to say to our European partners that there are areas of concern to us in relation to their asylum legislation and that we may seek to amend or to add amendments or Protocols to the Dublin Convention. However, we are talking primarily about the necessity for our own legislation as an independent State.

As it was Members of the Senator's party who are essentially responsible for the genesis of this Bill and who were motivated by strong and sound humanitarian impulses, the kind of aspersions he has cast on this area are, to say the least, unfortunate in terms of the consequences for his party. That is not to say that all is right with European asylum provisions. This convention seeks only to regulate the area of refugees "in orbit" and to provide the country which will make the hearing. We can opt into the Dublin Convention for specific cases if we so choose.

I would be prepared, perhaps at another time, to criticise at some length the asylum provisions of certain European countries; but I would do so in the knowledge that our record in terms of the numbers we have taken does not allow us to point the finger at other European countries in a totally irresponsible way. The magnitude of what they have done up to recent times is out of all proportion to the burden we are now entering. It is a significant burden for the Irish taxpayer. We have taken in more than 400 asylum seekers this year, all of whom received full social welfare provisions etc.

I must ask myself, having listened at great length to the Senator's contributions, if it is his intention to filibuster this Bill to the point where we do not have one? We would then be back to being at the bottom of the pile with no legislation at all. I do not think that is the intention of the Senator's party nor was it that of the ex-Minister for Justice, Deputy Geoghegan-Quinn, when she previously introduced the first version of this Bill.

Mr. Mulcahy

A Chathaoirligh——

An Cathaoirleach

We have discussed this amendment for an hour and ten minutes and this section for nearly three hours. If you want to make a point, you can do so, but we have been on this section since 8 p.m. I will allow you to make a brief point.

Mr. Mulcahy

I will make my point briefly but I will not make it under any pressure. I am entitled to reply to the points raised.

An Cathaoirleach

I am asking you in the interests of other Members to be brief.

Mr. Mulcahy

It gives me no pleasure to be here this late; I have other things to do. However, I have an obligation and I happen to regard this — I am sorry if this sounds pompous — as a very serious matter.

An Cathaoirleach

I am only asking you to make your contribution briefly.

Ms Kelly

Let brevity be the soul.

Mr. Mulcahy

I am not criticising the Dublin Convention per se and I am not castigating those people who brought it into being. I did not put down an amendment calling for the cancellation of the Dublin Convention or for its deletion from the Bill. I am prepared to accept the Minister's statements on it being a procedural matter. My only concern is that if there is a conflict between the two, the Geneva Convention should prevail. That is all my amendment says.

The Minister said I was casting aspersions on various countries which had carried a far bigger burden in this area than Ireland. I was not; I was quoting from reports available to me from United Nations sources. That was not my opinion. I am entitled to quote those sources. The Minister cannot sweep those concerns under the table; they are real.

Ms Gallagher

They have been dealt with; they are in the Bill.

Mr. Mulcahy

Senator Gallagher said "It is not for us to decide the balance between the two conventions".

Ms Gallagher

International law dictates the balance. That is basic law and I am surprised the Senator does not know that.

Mr. Mulcahy

That is so completely wrong as to absolutely win the argument on this side.

Ms Gallagher

It is a matter for international and European law.

An Cathaoirleach

You have already made your contribution, Senator.

Ms Gallagher

He is out of order, Sir.

Mr. Mulcahy

I also resent the Minister's slur on me that it was a voyage. If the Minister thinks I was trying to do it——

Mr. Neville

What else was it?

Mr. Mulcahy

She did say "voyage".

Ms Burton

Yes.

An Cathaoirleach

I ask the Senator to address his remarks through the Chair.

Ms Burton

We have travelled through Hungary, Greece, Austria and many other countries that are too numerous to mention. I have a strong geographical sense of the Senator's contribution.

Mr. Lydon

It was an odyssey.

Mr. Mulcahy

We are now introducing a Refugee Bill which gives effect to the Dublin Convention. It is for us to decide, unlike what Senator Gallagher said and I was shocked to hear it——

Ms Gallagher

We cannot ratify the Dublin Convention. The Senator is wrong.

Mr. Mulcahy

When did we ratify the Dublin Convention?

An Cathaoirleach

Senator Gallagher had an opportunity to make her point. I have called on Senator Mulcahy to speak. I ask the Senator to address his remarks through the Chair and to be as brief as possible.

Mr. Mulcahy

Perhaps Senator Gallagher can inform me when we ratified the Dublin Convention?

Ms Gallagher

I will give the Senator a lesson.

Mr. Mulcahy

I am sorry if I must labour this point, but it is so fundamental that it will not escape close examination. The kernel is that we as a Legislature must decide and be clear if there will be a conflict. The Minister did not rule out this possibility in her contribution.

Ms Burton

I am not able to rule out what the international courts may decide.

Mr. Mulcahy

I am glad I have that admission. The Minister has now accepted there may well be——

Ms Burton

I am not in the position of presuming what the Irish or international law courts may rule on or what cases may come forward. It would be entirely dishonest for me as a Minister, or any Minister in any Government, to pretend that. That would subvert the concept of international law, the Irish Judiciary and its functions. I am not a lawyer.

Mr. Mulcahy

I am glad to have got that admission from the Minister.

Ms Gallagher

What admission?

Mr. Neville

That is not an admission.

Mr. Mulcahy

The Minister has now admitted it is possible that there could be a conflict between the Geneva and Dublin Conventions. That is what my amendment is about. If there is a conflict, this means the Geneva Convention will be overridden and that somebody seeking its protection will find himself in a country which, according to the United Nations, is one from which they will be sent back. I again challenge the Minister to explain why she is afraid of either of these phrases. I am prepared to drop my amendment in favour of that proposed by Senator Norris, Senator Henry and Senator O'Toole.

Ms Burton

It has been withdrawn; she already acknowledged that.

Mr. Mulcahy

It has not been formally withdrawn.

Dr. Henry

Senator Mulcahy is right; it has not been withdrawn.

Mr. Mulcahy

The main difference between the two proposed amendments is that my amendment says "for the avoidance of doubt, in the event of any conflict". Let us assume what the Minister has said is correct, that there is no doubt. However, she admitted there may be a conflict.

Ms Burton

I said it was my view and on the advice of the Attorney General. I suspect that what we have here is a filibuster by the Senator designed to wreck and undermine the Bill——

Mr. Mulcahy

That is not the case.

Ms Burton

——and prevent us having legislation in this area. The Senator's arguments have long lost any coherence.

An Cathaoirleach

Is the amendment being pressed?

Mr. Mulcahy

I was addressing the House when the Minister interrupted me. I was not finished.

An Cathaoirleach

I took it the Minister was replying to a question the Senator asked.

Mr. Mulcahy

I was interrupted.

An Cathaoirleach

I ask the Senator to be brief.

Mr. Mulcahy

The difference between the two amendments is the avoidance of doubt. The Minister said there is no doubt. If I accept that, what is the problem given that the Minister has accepted there may be a conflict between the two? The Minister accepted that point.

Ms Burton

I said there may be a case to be stated before the Irish courts.

An Cathaoirleach

Senator Mulcahy without interruption.

Mr. Mulcahy

I must read the Official Report because it was my clear understanding the Minister appeared to say there could be a conflict.

Ms Burton

Understanding?

Mr. Mulcahy

Let us read the record.

Ms Burton

To make this absolutely clear, I said that neither I nor any Minister in any Government who came before the House could presume to rule out actions which might be taken at a future date in either the Irish or international courts. To do so would be a presumption on my part in relation to what will happen in the future. I gave my opinion and the advice I received from the State's highest law officer, the Attorney General. The Senator may or may not agree with that opinion, but I offered it.

An Cathaoirleach

The debate is becoming repetitious and I ask the Senator to conclude.

Mr. Mulcahy

I will conclude as soon as possible. The Minister said she does not exclude the possibility that a court could see a conflict between the Geneva and Dublin Conventions. If she includes this possibility why does she object to the fact that, in the event of any conflict between the Dublin and Geneva Conventions, the Geneva Convention shall prevail? What is the Minister's rationale? In her own words, she accepted there could be a conflict.

An Cathaoirleach

The Senator made that point on a number of occasions.

Mr. Mulcahy

I am saying it for the last time. There will be division on this. It is a matter of conscience.

Ms Burton

Then it is also a matter of conscience for Deputy Ray Burke and Deputy Geoghegan-Quinn.

An Cathaoirleach

Senator Mulcahy without interruption.

Mr. Mulcahy

It will be on the consciences of those who may be returned to an unsafe country that this amendment was defeated. This is a matter of conscience; it is a matter of law.

Amendment put.

The Committee divided: Tá, 15; Níl, 22.

Tá

• Byrne, Seán.
• Cassidy, Donie.
• Farrell, Willie.
• Fitzgerald, Tom.
• Honan, Cathy.
• Kiely, Rory.
• Lanigan, Mick.
• Lee, Joe.
• Lydon, Don.
• Mulcahy, Michael.
• Mullooly, Brian.
• O'Brien, Francis.
• O'Kennedy, Michael.
• Roche, Dick.
• Wright, G. V.

Níl

• Belton, Louis J.
• Burke, Paddy.
• Cashin, Bill.
• Cosgrave, Liam.
• Cotter, Bill.
• D'Arcy, Michael.
• Doyle, Joe.
• Enright, Thomas W.
• Farrelly, John V.
• Gallagher, Ann.
• Hayes, Brian.
• Henry, Mary.
• Kelly, Mary.
• McDonagh, Jarlath.
• Maloney, Seán.
• Manning, Maurice.
• Neville, Daniel.
• O'Sullivan, Jan.
• Sherlock, Joe.
• Taylor-Quinn, Madeleine.
• Townsend, Jim.
• Wall, Jack.

Tellers: Tá, Senators Fitzgerald and Farrell; Níl, Senators Cosgrave and Wall.

Amendment declared lost.

An Cathaoirleach

Amendment No. 41 has already been discussed. Is it being pressed?

Dr. Henry

Yes. I move amendment No. 41:

In page 25, between lines 23 and 24, to insert the following new subsection:

"(10) In the event of any conflict occurring between the Dublin Convention and the Geneva Convention, the Geneva Convention shall prevail.".

The best advice I can get from international refugee lawyers is that the Geneva Convention which is an international Convention will supercede the Dublin Convention which is a regional Convention. I want to withdraw my amendment because in that case the Geneva Convention will prevail.

Amendment, by leave, withdrawn.

An Cathaoirleach

Amendment 42 has already been discussed with amendment No. 39a. Is amendment 42 being pressed?

Dr. Henry

Yes. I move amendment No. 42:

In page 25, between lines 23 and 24, to insert the following new subsections:

"(11) The Minister shall, when issuing an order under this section, send to the applicant a noticewriting stating that the applicant may appeal to the Appeal Board against the order within 5 days from the sending of the notice.

(12) Where any notice of appeal is not given to the Appeal Board within the appropriate time limit, it shall nevertheless be treated for all purposes as having been given within that time limit if the Chair — person is of the opinion that, by reason of special circumstances, it is just and right for the notice to be so treated.

(13) The Appeal Board shall determine an appeal not later than 14 days after receiving notice of the appeal against an order under this section.

(14) The Appeal Board may if necessary extend the time limit so prescribed to enable it fairly to determine the appeal."

The Minister of State's amendments have now made it possible for an asylum seeker to appeal against their summary deportation. There will be a suitable time for the appeal to take place; this will not be too rushed and the person will have access to counsel to make their case and while I would have liked the appeal to go before the board rather than just one person the Minister's amendments are quite suitable and I will withdraw my amendment.

Amendment, by leave, withdrawn.

Question proposed: "That section 22, as amended, stand part of the Bill."

Mr. Mulcahy

Senator Gallagher commented that we already signed the Dublin Convention. The Minister of State said only two countries that had not yet ratified it — Ireland and the Netherlands. A few matters arise in this section which are of concern. Does the Bill amount to an instrument of ratification? If not, is it envisaged that the ratification will take place before or after the enactment of this Bill?

Ms Burton

It cannot come into effect until the Bill is passed.

Mr. Mulcahy

The other matter relates to subsection (5) which states:

(a) The Minister for Foreign Affairs may by order designate the countries which are parties to the Dublin Convention.

(b) The Minister for Foreign Affairs may by order amend or revoke an order under this subsection including an order under this paragraph.

Is that simply to give legal recognition to those parties which have eventually signed the Dublin Convention? The Minister of State indicated that certain members of the European Union have not yet signed it.

Ms Burton

The answer is yes.

Question put and agreed to.

Section 23 agreed to.

SECTION 24.

Question proposed: "That section 24 stand part of the Bill."

Mr. Mulcahy

I wish to express the sentiments of myself and Senator Daly about this section. Section 24 deals with programme refugees and is totally inadequate for their needs. An earlier section of the Bill gives the Minister the power to revoke a declaration of refugee status. There does not appear to be a corresponding power with regard to programme refugees. When we discussed that provision the Minister of State's response was that it was a matter for the Government. That is not good enough. This Bill appears to make fish of one and flesh of the other in the context of refugees. Why will programme refugees not have the same protection as people who obtain asylum on an individual basis pursuant to this legislation?

There have been only three or four Government decisions regarding programme refugees in recent years. They applied to the Bosnians, Vietnamese and Hungarians. We are not dealing with large numbers of people. Is section 24 all we have to say about programme refugees and their rights? The section comprises about 16 lines. Unfortunately my proposed amendments were not properly tabled before today's debate and unless the matters to which they refer are raised in this debate I will be unable to raise them on Report Stage.

My party's view is that there should be a programme refugee board which would co-ordinate the activities of the Department of Justice, the Department of Foreign Affairs and the non-governmental agencies in connection with the protection and resettlement of programme refugees as registered in the register established and maintained by the Minister for Foreign Affairs under section 24. We also believe the programme refugee board should consist of people who are knowledgeable and experienced in refugee matters. We intend to table an amendment to that effect.

It appears that if the Government decides to send programme refugees back to their country of origin the decision cannot be challenged under this Bill. There is no review procedure if the Government decides to return such refugees if circumstances have changed in the original country of oppression — as is the case, arguably, in parts of Bosnia — and the reason for the oppression no longer exists. It is dangerous that the Government has untrammelled power to end the refugee status of programme refugees.

We have already debated the question of public policy, "ordre public”, under section 4 and the Minister of State gave a commitment to revert to the House with regard to proposed new wording for that section.

Ms Burton

The Senator's lack of knowledge about refugees and refugee practice in this State is astonishing. He has obviously never heard of the Refugee Agency even though the previous Labour-Fianna Fáil Government did. The membership of that agency comprises the type of people the Senator would like to see looking after programme refugees. Where has the Senator been? In what part of the world has he been living? Does he not know about the existence of the Refugee Agency? Is he not aware of the huge amounts of money that were committed to it by his party when it was in Government with the Labour Party and that was only a few years ago? Perhaps the Senator is only a recent member of Fianna Fáil but he must have read the newspapers. I am astonished.

Large sections of this Bill are not applicable to programme refugees by virtue of the fact that the Government makes a block decision to admit a group of people, such as 500 Bosnians. These people do not need to use the application procedures because, in conjunction with the UNHCR, the Government decides to admit them. Playing politics with Bosnian refugees is rather dangerous. I will reiterate what I said earlier. I speak in good faith and I wish the Senator would respect that. When this matter was raised previously the Senator's colleague, Senator Daly, accepted and endorsed my response. I put it on record that, with regard to the Bosnian refugees and the Dayton Peace Accord, the Government was happy to accept that those Bosnians who wished to remain in Ireland were welcome to do so. We equally accepted that some members of the Bosnian community might wish to return home. That statement is a matter of record, lest the Senator's careless comments could cause concern to certain people, many of whom have been traumatised by their experience and might not understand the context in which the remarks were made. I am sure that was not the Senator's intention but refugees are vulnerable people so I reiterate what I said.

I also wish to point to the work of not only the current Minister for Social Welfare but that of his predecessor, Deputy Woods. I was Minister of State for that Department and I and Deputy Woods gave community welfare officers in each area the power to deal with the needs of programme and other refugees. The Senator's remarks are superfluous in the context of the situation and also when we consider the kind of people who are members of the board of the Refugee Agency and the money expended on that agency by the present and previous Governments.

An Cathaoirleach

Is section 24 agreed?

Mr. Lydon

I wish to ask a further question.

An Cathaoirleach

The issue of programme refugees was dealt with on an earlier section.

Mr. Lydon

Subsection (4) states that "The Minister may, in the interest of national security or public policy ("ordre public”), refuse to issue a travel document.” Why is the term “ordre public” used in this subsection when it does not translate into “national security” or “public policy”? Is there a particular reason for its inclusion?

Mr. Mulcahy

The Minister of State stated that people who are the subject of a programme refugee programme are welcome to stay in Ireland. Is that assurance open ended?

Ms Burton

The Senator is aware that a refugee who is resident in Ireland for a suitable period of time — any of the NGOs could explain this issue — has the right to apply for Irish citizenship. People do not remain refugees for their entire lives. We hope that being a refugee is a transitory position. If a person arrives in Ireland and obtains refugee status, it is hoped that they will ultimately become an Irish citizen. It is a transitory state, although the transition period may be a long one. Refugees, including Bosnians, are currently in the process of applying for Irish citizenship. Such applications relate to people who have been in this country for more than three years.

The issue of "ordre public” was debated at great length. I do not wish to discuss individual cases but questions could arise about the history and background of a person admitted to this country. Such a person might be involved in certain serious matters and it might be considered inappropriate to give them travel documents for fear that they might escape international tribunals of justice by entering another jurisdiction. If they were admitted to Ireland as an ordinary asylum seeker or programme refugee and were subsequently the subject of allegations by an international criminal tribunal in relation to their actions in their former country, we might not wish to see them depart this country because we might wish to make them available to that international tribunal. This is a hypothetical situation because we have not had such cases. However, that is clearly a case where it might arise. It has already arisen in a number of European states.

Mr. Mulcahy

I understand that the Irish Refugee Agency——

Ms Burton

The Refugee Agency.

Mr. Mulcahy

I am attempting to make the point that the Refugee Agency exists on a non-statutory basis. Contrary to the way in which the Minister of State attempted to demean my contribution, I have spoken to refugees and programme refugees. Many of these people are uncertain as to their status and are unclear about the role, activities and responsibilities of and the relationship between the Department of Justice and the Refugee Agency. Senator Daly wished to make the point that this is a golden opportunity——

Ms Burton

The Refugee Agency is under the remit of the Department of Foreign Affairs.

Mr. Mulcahy

Fine, it is under the Department of Foreign Affairs.

Ms Burton

The Senator is not aware of that fact.

Mr. Mulcahy

The point is that there are a substantial number of people living in Ireland under a regime of refugeeship. They are dealt with by the Refugee Agency under the Department of Foreign Affairs which exists on a non-statutory footing.

Mr. Sherlock

The Senator was badly briefed.

Mr. Mulcahy

The Minister of State is aware that many people who are refugees in Ireland under a programme genuinely query their status and the role of the Refugee Agency.

Returning to the issue of citizenship, the Minister of State is also aware — I am open to correction in this regard — that there is no absolute right to citizenship, even where the correct period of residence exists. Refugees who have lived in the country for a suitable period apply under naturalisation provisions and the Minister retains a discretion to see that the various conditions of citizenship have been complied with. The Minister of State's contribution seemed to indicate and could have given the misleading impression that refugees would receive citizenship as of right when the five year period elapses.

I am aware that Members wish to conclude our deliberations on this Bill. However, programme refugees in this country are only catered for under one section and six subsections of the legislation. I do not believe that this represents an adequate response. The Minister of State can insult me but I have agreed time and again that she knows more about the refugee thing than I do.

An Cathaoirleach

Perhaps the Minister might clarify those issues for the Senator?

Ms Burton

Refugees are not things they are people and the——

Mr. Mulcahy

More insults.

Ms Burton

——Senator should not allow his language to slip at this stage.

Mr. Mulcahy

I accept that.

Ms Burton

I have dealt with many refugees on an individual basis. I have also had the pleasure to be invited to their community centres, which were established with the help of funding provided by the Department of Social Welfare. I visited these centres during the terms of office of the present and previous Ministers for Social Welfare.

Many refugees live in the Dublin West area and I meet them on a constituency basis. I would be grateful if Senator Mulcahy would bring to my attention the cases to which he referred. I am concerned, because from contacts with the various agencies and religious who deal with programme refugees, I am not aware of the existence of the problems to which the Senator referred. If he brings specific cases to my attention, I will attempt to deal with the problems of the individuals involved. I have set out to make myself available to programme refugees and I am not aware of the general concerns expressed by Senator Mulcahy.

Mr. Lydon

Is there an upper limit on the numbers of refugees in these programmes?

Ms Burton

The numbers of programme refugees are based on our discussions with the UNHCR in relation to the occurrence of disasters or civil conflicts. Following such events, we are asked to accept a number of people into the country. The UNHCR would be of the opinion that the present and previous Governments have been quite generous in their response in this regard, because we have also attempted to facilitate the subsequent reunification of families of programme refugees who have come to Ireland.

Mr. Lydon

The Minister of State did not answer my question.

Ms Burton

There is no upper limit.

Mr. Lydon

Therefore, thousands of people could be involved?

Ms Burton

The Government of the day must respond to that matter. The numbers of people we are asked to accept are generally decided by the UNHCR.

An Cathaoirleach

Is section 24 agreed?

Mr. Mulcahy

No.

Question put.

The Committee divided: Tá, 18; Níl, 12.

Tá

• Cashin, Bill.
• Cosgrave, Liam.
• Cotter, Bill.
• Gallagher, Ann.
• Hayes, Brian.
• Henry, Mary.
• Kelly, Mary.
• McDonagh, Jarlath.
• Maloney, Seán.
• D'Arcy, Michael.
• Doyle, Joe.
• Farrelly, John V.
• Neville, Daniel.
• O'Sullivan, Jan.
• Sherlock, Joe.
• Taylor-Quinn, Madeleine.
• Townsend, Jim.
• Wall, Jack.

Níl

• Cassidy, Donie.
• Farrell, Willie.
• Fitzgerald, Tom.
• Honan, Cathy.
• Kiely, Rory.
• Lanigan, Mick.
• Lydon, Don.
• Mulcahy, Michael.
• Mullooly, Brian.
• O'Brien, Francis.
• Roche, Dick.
• Wright, G.V.

Tellers: Tá, Senators Cosgrave and Wall; Níl, Senators Fitzgerald and Farrell.

Question declared carried.

Mr. Mulcahy

May I make a point of order?

An Cathaoirleach

What is the point of order?

Mr. Mulcahy

I got a letter from you, a Chathaoirligh, disallowing my amendment No. 44 which related to the provision of free legal aid. "Section 28 of the Civil Legal Aid Act, 1995 is hereby amended by the insertion of the following sub-paragraph..."

An Cathaoirleach

What section is that?

Mr. Mulcahy

It was to be a new section.

An Cathaoirleach

Where?

Mr. Mulcahy

In page 26, before the First Schedule, to insert a new section.

An Cathaoirleach

We have not reached that.

Sections 25 and 26 agreed to.

SECTION 27.

Government amendment No. 43:

In page 26, line 18, to delete "section 17" and subsitute "section 17)".

Ms Burton

This is an amendment to correct a minor grammatical error.

Amendment agreed to.

Section 27, as amended, agreed to.

Section 28 to 30, inclusive, agreed to.

NEW SECTION.

Mr. Mulcahy

At this stage we come to my amendment No. 44. The Cathaoirleach ruled my amendment out of order, because there was a monetary consideration. I want to question that ruling.

An Cathaoirleach

The Senator cannot do that. If he wants to discuss the matter with me later, I certainly will discuss it with him. I have ruled the amendment out of order and it should not be discussed in the House.

Mr. Mulcahy

When we were discussing the Civil Legal Aid Bill, 1995, there was no problem with increasing the categories of free legal aid.

An Cathaoirleach

I have made a ruling and it is unprecedented for the ruling to be challenged in the House. I ask the Senator to move on.

Mr. Mulcahy

Could we have a discussion about this matter? I did feel genuinely aggrieved.

An Cathaoirleach

The Senator can discuss the matter with me later.

Amendment No. 44 not moved.

FIRST SCHEDULE.

An Cathaoirleach

Amendments Nos. 45, 46, 47 and 48 are related and may be discussed together.

Mr. Mulcahy

I move amendment No. 45:

In page 26, to delete lines 44 to 46, and substitute the following:

"The Commissioner shall be conversant with and have experience of human rights issues".

We had a broad discussion on Committee Stage on whether the commissioner should be a practising barrister or solicitor or one with seven years experience. The Minister gave convincing arguments, which were repeated here tonight, that experience was not essential and the commissioner should be a practising barrister or solicitor. The Minister of State cannot disagree that the refugee commissioner should be conversant with and have experience of human rights issues. The Minister of State made the case for not stipulating a practising barrister or solicitor of seven years standing. She argued that some of the positions — for example, the Refugee Appeals Commissioner or the person hearing the appeals — would be held by people who are recruited from agencies such as the Refugee Agency and various Government Departments. The Minister of State has unfairly chided me for my lack of experience in this particular area, notwithstanding the fact that I accepted throughout the debate that I was not as experienced as her in relation to refugee matters. Nobody can deny that — and the Minister of State heard the debate in relation to safe third countries — it is imperative that the Refugee Appeals Commissioner would be fully conversant with human rights issues. This is a critical point. The phrase "shall be conversant with and have experience of humans rights issues" adequately deals with this matter.

Mr. Roche

I have not been involved in most of the debate but I would ask the Minister to enshrine the sentiment of this amendment in the Bill, whether in these words or more appropriate ones. From my experience I will explain why she should.

In 1978 and 1979 I had the honour to be a human rights fellow with the United Nations. During that time it struck me with great interest that the head of the section was from the Soviet Union and there were a variety of people from other countries with extraordinary records in the human rights field. The primary interest most of them seemed to have was balancing their accounts. I agree with the sentiments expressed by the Minister and Senator Mulcahy that it is not a prerequisite that there should be a barrister or a solicitor. However, there should be somebody, whether from the NGO, the public service or the outside world, who has a track record and a real interest in human rights. An appeals commissioner without that prerequisite would be a nonsense.

Progress reported; Committee to sit again.

An Leas-Chathaoirleach

When is it proposed to sit again?

Mr. Manning

At 10.30 a.m. tomorrow.

The Seanad adjourned at 12 midnight until 10.30 a.m. on Thursday, 6 June 1996.